3oo V&o 9 case 3:12-cv-00459-JD-CAN document 1 filed 08/23/12 page 1 of 31

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

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GRACE SCHOOLS and BIOLA UNNERSITY, INC.
Plaintiffs,
v.
KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; HILDA SOLIS, in her official capacity as Secretary of the United States Department of Labor; TIMOTHY GEITHNER, in his official capacity as Secretary ofthe United States Department of the Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; and UNITED STATES DEPARTMENT OF THE TREASURY,

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Defendants.

COMPLAINT

Plaintiffs Grace Schools (hereinafter "Grace College and Seminary," "Grace College," "the College," or "Grace") and Biola University, Inc. (hereinafter "Biola" or "the University") (collectively, "the Schools"), by their attorneys, state as follows:
NATURE OF THE CASE 1. In this action, the Plaintiffs seek judicial review of the Defendants' violations of the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (RFRA), the First and Fifth Amendments to the United States Constitution, and the Administrative Procedure Act, 5 U.S.C. § 701, et seq. (APA), by their actions implementing the Patient Protection and Affordable Care Act of2010 (Pub. L. No. 111-148 (March 23, 2010), and Pub. L. No. 111-152 (March 30, 2010); hereinafter PPACA), in ways that coerce thousands of religious institutions and individuals to

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engage in acts they consider sinful and immoral in violation of their most deeply held religious

beliefs.

2.

Plaintiffs Grace College and Seminary and Biola University are Christ-centered

institutions ofhigher learning. As such, they believe that God, in His Word, has condemned the

intentional destruction of innocent human life. The Schools believe, as a matter of religious

conviction, that it would be sinful and immoral for them intentionally to participate in, pay for,

facilitate, or otherwise support abortion, which destroys human life. They believe that the Sixth

Commandment ("thou shalt not murder") proscribes payment for and facilitation of the use of

drugs that can and do destroy very young human beings in the womb.

3.

With full knowledge that many religious organizations hold the same or similar

beliefs, Defendants issued regulations that, by forcing these organizations to pay for and

otherwise facilitate the use of abortifacient drugs and related education and counseling, trample

on the freedom of the Schools and millions of other American organizations and individuals to

abide by their religious convictions, to comply with moral imperatives they believe are decreed

by God Himself.

4.

The regulation-the HHS Preventive Services Mandate 1-illegally and

unconstitutionally coerces Grace College and Seminary and Biola University to violate the

1 The Mandate consists of a conglomerate of authorities, including: "Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act," 77 Fed. Reg. 8725-30 (Feb. 15, 2012); the prior interim final rule found at 76 Fed. Reg. 46621-26 (Aug. 3, 2011), which the Feb. 15 rule adopted "without change"; the guidelines by Defendant HHS's Health Resources and Services Administration (HRSA), http://www.hrsa.gov/womensguidelines/, mandating that health plans include no-cost-sharing coverage of"All Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity" as part of required women's "preventive care"; regulations issued by Defendants in 2010 directing HRSA to develop those guidelines, 75 Fed. Reg. 41726 (July 19, 2010); the statutory authority found in 42 U.S.C. § 300gg-13(a)(4), requiring unspecified preventive health services generally, to the extent Defendants have used it to mandate coverage
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Sixth Commandment under threat of heavy fines and penalties. The Mandate also forces the S-chools to fund government-dictated speech that is directly at odds with the religious message they wish to convey to their students and to the broader culture.
5. Defendants' refusal to accommodate conscience in this matter is highly selective. Upon information and belief, the government has provided thousands of exemptions from the PPACA for various groups, such as large corporations, but the government refuses to exempt most religious groups from this unprecedented Mandate. Moreover, the Mandate does not apply to countless "grandfathered" employer group health plans, through which millions of American women receive health insurance coverage, belying any contention that the Mandate advances any compelling govemment interest.
6. Defendants' actions violate the Schools' right freely to exercise their religion, protected by the Religious Freedom Restoration Act and the Religion Clauses of the First Amendment to the United States Constitution.
7. Defendants' actions also violate the Schools' right to the freedom of speech, as secured by the Free Speech Clause of the First Amendment to the United States Constitution, and due process rights secured by the Fifth Amendment to the United States Constitution.
8. Additionally, Defendants violated the Administrative Procedure Act, 5 U.S.C. § 553, by imposing the Mandate without prior notice or public comment, and for other reasons.
9. Defendants knew, in imposing their Mandate, that it would coerce thousands of individuals and organizations like Grace College and Seminary and Biola University to violate their religious convictions. The Schools seek declaratory and injunctive relief to protect against this unjustified impairment of conscience.
to which Plaintiffs and other employers have religious objections; penalties existing throughout the United States Code for noncompliance with these requirements; and other provisions of PPACA or its implementing regulations that affect exemptions or other aspects of the Mandate.
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IDENTIFICATION OF PARTIES AND JURISDICTION 10. Plaintiff Grace Schools is a Christ-centered institution ofhigher learning located in Winona Lake, Indiana. It is an Indiana not-for-profit corporation. It operates as, among other assumed names, Grace College, Grace Theological Seminary, and Grace College & Seminary. 11. PlaintiffBiola University, Inc., is a Christ-centered institution of higher learning located in La Mirada, California. It is a California not-for-profit religious corporation. 12. Defendants are appointed officials ofthe United States government and United States Executive Branch agencies responsible for issuing and enforcing the Mandate. 13. Defendant Kathleen Sebelius is the Secretary of the United States Department of Health and Human Services (HHS). In this capacity, she has responsibility for the operation and management ofHHS. Sebelius is sued in her official capacity only. 14. Defendant HHS is an executive agency of the United States government and is responsible for the promulgation, administration and enforcement of the Mandate. 15. Defendant Hilda Solis is the Secretary ofthe United States Department ofLabor. In this capacity, she has responsibility for the operation and management of the Department of Labor. Solis is sued in her official capacity only.
16. Defendant Department of Labor is an executive agency ofthe United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
17. Defendant Timothy Geithner is the Secretary of the Department of the Treasury. In this capacity, he has responsibility for the operation and management of the Department. Geithner is sued in his official capacity only.
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18. Defendant Department of Treasury is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the

Mandate. 19. This action arises under the Constitution and laws of the United States. The
Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 & 1361, jurisdiction to render declaratory and injunctive reliefunder 28 U.S.C. §§ 2201 & 2202,42 U.S.C. § 2000bb-1, 5 U.S.C. § 702, and Fed. R. Civ. P. 65, and to award reasonable attorney's fees and costs under

the Equal Access to Justice Act, 28 U.S.C. § 2412, and 42 U.S.C. § 1988. 20. Venue lies in this district pursuant to 28 U.S.C. § 1391(e). A substantial part of
the events or omissions giving rise to the claim occurred in this district, and Plaintiff Grace

College and Seminary is located in this district.

FACTUAL ALLEGATIONS

I.

Grace College and Seminary's Religious Beliefs and General Provision of

Educational Services

21. Grace College and Seminary was founded in 1937 under the leadership of Dr. Alva J. McClain, President. The College's mission is to be "an evangelical Christian c01mnunity of higher education which applies biblical values in strengthening character, sharpening competence, and preparing for service." Grace is a learning community dedicated to teaching, training, and transforming the whole person for local church and global ministry. Grace's aspirational vision is to "be an exceptional learning community that transforms people

to live their lives for God and others."

22. Grace College and Seminary embraces these core values:

• "A relationship with the God of Scripture is foundational to all oflife."

• "Exceptional learning experiences drive all educational programs."

• "Nurturing the transformation of life is deeply integrated in all institutional life."

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• "Appreciating and valuing others as God does characterizes all relationships." • "Doing good for others in the intended outcome of institutional life and service." • "Managing institutional and constituents' resources in a disciplined and biblical
way is essential to institutional life." 23. At Grace, the students, administration, faculty, and staff aim together to make Christ preeminent in all things. Students learn this by living, studying, working, worshipping, and achieving academic success with other young people who share similar Christian ideals in a setting where the community lifestyle fosters devotion to serious academic inquiry, wholesome recreation and relaxation, and mature spiritual growth. 24. Grace pursues its mission through biblically-based programs and services anchored in the historic Fellowship of Grace Brethren Churches. The curriculum is rooted in the liberal arts and sciences and is delivered through traditional and specialized programs. 25. Grace College and Seminary has a "Covenant of Faith" that "[a]ffirm[s] biblical truth and God's grace." 26. Grace College and Seminary is affiliated with the Fellowship of Grace BrethTen Churches. The Fellowship of Grace Brethren Churches traces its denominational heritage back to 1708 and the pietistic movement in Germany following the Reformation. 27. Members of Grace's Board ofTrustees, which governs the College, must subscribe annually to the Covenant of Faith, which is consistent with the beliefs of the Fellowship of Grace Brethren Churches.
28. Grace College and Seminary draws its faculty, staff, and administration from among those who profess the Covenant ofFaith ofthe College and Statement ofFaith of the Fellowship of Grace Brethren Churches.
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29. Although the College does require a profession of faith as a prerequisite for student admission, it does not require membership in the Grace Brethren denomination. Approximately 30 denominations are represented in its student body. All students are expected to adhere to the standards set forth in the Grace College Community and Lifestyle Statement.
30. The College will serve approximately 2,700 students in the fall2012 semester. This number includes approximately 1,800 students in higher education degree programs and approximately 900 students in its basic education prison program, which is located in five Indiana prisons. The campus enrolls students from more than 20 countries.
31. The College currently has approximately 457 employees. II. The Religious Beliefs of Grace College and Seminary Regarding Abortion
32. The Fellowship of Grace Brethren Churches believes that human life is worthy of protection and respect at all stages from the time of conception.
33. The Fellowship of Grace Brethren Churches believes that the sanctity ofhuman life is established by creation (Gen. 1:26-27), social protection (Gen. 9:6) and redemption (John 3:16).
34. The College agrees with the Fellowship of Grace Brethren Churches' religious views regarding abortion, believing that the procurement, participation in, facilitation of, or payment for abortion (including abortion-causing drugs like Plan B and ella) violates the Sixth Commandment and is inconsistent with the dignity conferred by God on creatures made in His Image.
35. By "conception," "pregnancy," "abortion" and related concepts referenced herein regarding the sanctity of innocent human life and prohibitions on its destruction, Grace College understands such concepts to recognize and protect the lives of human beings from the moment of fertilization.
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36. In September 2009, crosses representing the 2,016 abortions (1982-2008) in Kosciusko County, Indiana, where Grace is located, were placed on the north and east lawns of Morgan Library on the Grace campus. The crosses were a reminder of the human beings, each created in the image and likeness of God (Genesis 1:26), whose lives were so tragically ended by abortionists.
37. In June 2007, Grace College hosted the Pro-Life Music Festival, which drew several thousand attendants to see a number of popular Christian bands.
38. Grace College students have participated in the Pro-Life Day of Silent Solidarity. III. Grace College's Group Health Insurance Plans
39. Grace College promotes the physical, spiritual and well-being and health of its employees. This includes provision of generous health insurance.
40. Consistent with its religious commitments, Grace College provides a self-insured group plan for its employees, acting as its own insurer.
41. Approximately 179 employees are enrolled in Grace's group health plan. Including dependents, the total number of people enrolled in the group health plan is approximately 383.
42. Under the terms of Grace's plan for its employees, coverage excludes abortifacient drugs like Plan B and ella.
43. The plan does, however, include a variety of contraceptive methods that Grace does not consider to be morally objectionable.
44. The next plan year for the College's employee health insurance plan will start on January 1, 2013.
45. Effective June 2010, the College made changes to its employee health plan that caused the plan to lose its grandfathered status. Co-pays for specialty pharmacy products were
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increased from 20% with a maximum of $1000 per year to 50% with a maximum of $250 per prescription.
46. Grace requires all registered residential students to have health insurance. If a student does not submit proof of coverage to the College, it will enroll the student in a health insurance plan issued by Gallagher Koster. The College will bill enrolled students for the cost ofthe coverage. In the 2012-2013 school year, approximately 50 students were enrolled in the insurance plan facilitated by the College. IV. Biola University's Religious Beliefs and General Provision of Educational Services
47. Biola University was founded in 1908 as the Bible Institute of Los Angeles. 48. The mission of Biola University is biblically centered education, scholarship and service - equipping men and women in mind and character to impact the world for the Lord Jesus Christ. 49. Biola's vision is to be an exemplary Christian university characterized as a community of grace that promotes and inspires personal life transformation in Christ which illuminates the world with His light and truth. As a global center for Christian thought and an influential evangelical voice that addresses crucial cultural issues, Biola University aspires to lead, with confidence and compassion, an intellectual and spiritual renewal that advances the purpose of Christ. 50. Biola believes that there is truth- that it is knowable and revealed in God's inerrant Word. Biola believes that Christians can accordingly live with unshakeable confidence and hope, knowing that the Bible and God's truth have direct application to their lives, their work, their relationships, and the culture around them. 51. Biola believes that holding a biblical worldview is foundational to understanding life and Truth. It believes that God has equipped it to uphold truth and sustain community at
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the University through Christ-centered and Spirit-led education, scholarship, and service that is grounded in Scripture and that challenges its community to seek and integrate biblical principles into its fields of study. Biola believes that all it does should be Christ-centered and based on the teachings of Jesus. It believes that Christ provided the best model for how to live and that following Him is a way of life that, when followed to its fullest expression, will impact how Christians live and the choices they make.
52. Biola believes that participating in a Christian community of grace is important in the life of the believer. It believes that the identity of Christians as children of the Triune God lies in their lives lived in and through community, holistic relationships, mutual interdependence upon the Indwelling Spirit and members of the Body and seeking the unity of the Spirit.
53. Biola believes that through the renewing of the mind and care of the body its prepares its students to live within the culture in a loving and Christ-honoring way. Through a rigorous, Christ-centered and Spirit-led education, the University enables its students to grapple with and engage in the spiritual, intellectual, ethical and cultural issues of our time, their implications and application to everyday life.
54. Biola believes that through community and dependence upon the Spirit, character is sharpened and Christians grow in their ability to live their lives as the Lord Jesus Christ would. It believes that interactions with fellow Christians provide one of the essential means of character development in the life of the believer.
55. Biola believes that integrity and authenticity should be hallmarks of every believer. It believes their relationships should be models of transparency, truth-telling, and unwavering commitment to the example set by the Lord Jesus Christ.
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56. Biola believes that we exist to serve God and His Great Commission in reaching the world for the Lord Jesus Christ. It believes that Christ-followers are His light to a dark world and that it is their duty and privilege to make disciples.
57. Biola believes that God uses the faculty, staff, students and alumni to accomplish His plans. It believes that, as servant leaders, each person who is part of Biola's community can make a difference in their families, churches, communities, and vocations for Christ's

Kingdom. 58.

The University believes that service is an act of worship to God. As followers of

the Lord Jesus Christ, members of the Biola community desire to worship God by living in a

way that is worthy of the calling they have received. 59. Biola believes that the Lord Jesus Christ intends His Church to be a multi-ethnic,

multi-cultural, and multi-national body ofbelievers. We have been called to respect, and when appropriate, reflect the diversity of God's kingdom throughout the world. The University holds

that believers have a responsibility to spread the Gospel through evangelism, missions and

outreach. 60. Biola believes that it has been blessed with kingdom resources and desires to
steward them in a God-honoring way. Its desire is to manage its time, money, and gifts and to care for the students, whose lives have been entrusted to it, in a way that models a commitment

to excellence and a total-life attitude of stewardship. V. The Religious Beliefs of Biola University Regarding Abortion
61. Biola's "Doctrinal Statement," which is part of its Articles of Incorporation, declares that "[t]he Bible is clear in its teaching on the sanctity of life. Life begins at conception. We reject the destruction or termination of innocent human life through human intervention in

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any form after conception including, but not limited to, abortion, infanticide or euthanasia because it is unbiblical and contrary to God's will. Life is precious and in God's hands."
62. The Biola University Employee Handbook, in a section entitled "Standard of Conduct," states in part as follows: "Consistent with the example and command of Jesus Christ, we believe that life within a Christian community must be lived to the glory of God, with love for God and for our neighbors. Being indwelt by the Holy Spirit, we strive to walk by the Spirit, 'crucifying the flesh with its passions and desires' (Galatians 5:24). To this end, members of the Biola community are not to engage in activities that Scripture forbids. Such activities include ... the destruction or termination of innocent human life through human intervention in any fonn after conception including, but not limited to, abortion, infanticide or euthanasia."
63. Biola's Student Handbook provides in part as follows: "The University wants to assist those involved in unplanned pregnancy while at Biola to consider the options available to them within the Christian moral framework. These include marriage of the parents, single parenthood, or offering the child for adoption. Because the Bible is clear in its teaching on the sanctity of human life, life begins at conception; we abhor the destruction of innocent life through abortion on demand. Student Development stands ready to help those involved to cope effectively with the complexity of needs that a crisis pregnancy presents." VI. Biola University's Group Health Insurance Plans
64. Biola supports the physical, emotional, and spiritual well-being of its employees and their dependents by offering health insurance coverage as a benefit of employment. Health insurance is available to regular employees who work at least 30 hours per week, for at least ten months of the year.
65. Biola offers two medical insurance plans for its employees, one through Kaiser and the other through Blue Shield.
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66. Biola has approximately 856 full-time, benefit-eligible employees. Approximately 1,835 individuals are covered under its two employee health insurance plans.
67. After the enactment of the Affordable Care Act, Biola made a number of changes to its employee health plans that deprived them of "grandfathered" status. Upon the renewal of the two employee plans effective April1, 2010, Biola changed the methodology by which it supported the cost of employee health insurance. It moved from contributing the same number of dollars to the Anthem Blue Cross and Kaiser plans to contributing the same percentage of the total premium. Upon renewal of the two employee plans effective April 1, 2011, Biola increased HMO co-pays from $10 per office visit to $15 per office visit for both plans. It also at that time raised the prescription drug co-pays for the Blue Cross plan. Biola never conveyed to employees or dependent beneficiaries that its employee group health plans possessed grandfathered status.
68. Blue Shield replaced Anthem Blue Cross effective April1, 2012. Prior to that date, the Anthem Blue Cross plan did cover all FDA-approved contraceptives, including ella and Plan B. The prior inclusion of abortion-inducing drugs like ella and Plan B was neither knowing nor intentional.
69. The Blue Shield plan does not cover abortion-inducing drugs such as ella and Plan B. The plan does provide coverage of other drugs characterized by the Food and Drug Administration as "contraceptives."
70. Prior to April 1, 2012, the Kaiser plan covered all FDA-approved contraceptives, including ella and Plan B. The prior inclusion of abortion-inducing drugs like ella and Plan B was neither knowing nor intentional. Effective April 1, 2012, Biola eliminated coverage of any "contraceptives" from the Kaiser plan. Effective April1, 2012, employees enrolled in the Kaiser plan receive coverage of non-abortifacient prescription contraceptive drugs through
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Script Care, a pharmacy benefits manager. Abortion-inducing drugs, such as ella and Plan B, are not covered. The plan does provide coverage of other drugs characterized by the Food and Drug Administration as "contraceptives."
71. Biola facilitates health insurance for its students who are not otherwise covered by health insurance. The University requires its students to have health insurance coverage. It facilitates coverage through United Health Care. Students who enroll in this plan pay the premium to Biola and the University remits payment to the carrier on behalf of the students. Ella and Plan B are excluded from this plan. VII. The PPACA and Defendants' Mandate Thereunder
72. Under the PPACA, employers with over 50 full-time employees are required to provide a certain level of health insurance to their employees.
73. Nearly all such plans must include "preventive services," which must be offered with no cost-sharing by the employee.
74. On February 10,2012, the Department ofHealth and Human Services finalized a rule (previously referred to in this Complaint as the Mandate) that imposes a definition of preventive services to include all FDA-approved "contraceptive" drugs, surgical sterilization, and education and counseling for such services.
75. This final rule was adopted without giving due weight to the tens of thousands of public comments submitted to HHS in opposition to the Mandate.
76. In the category of"FDA-approved contraceptives" included in this Mandate are several drugs or devices that may cause the demise of an already-conceived but not-yetimplanted human embryo, such as "emergency contraception" or "Plan B" (the "morning after" pill).
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77. The FDA approved in this same category a drug called "ella" (the "week after" pill), which studies show can function to kill embryos even after they have implanted in the uterus, by a mechanism similar to the abortion drug RU-486.
78. The manufacturers of some such drugs, methods and devices in the category of "FDA-approved contraceptive methods" indicate that they can function to cause the demise of an early embryo.
79. The Mandate also requires group health care plans to pay for the provision of counseling, education, and other information concerning contraception (including devices and drugs such as Plan B and ella that cause early abortions or harm to embryos) for all women beneficiaries who are capable ofbearing children.
80. The Mandate applies to the first health insurance plan-year beginning after August 1, 2012.
81. The Mandate makes little or no allowance for the religious freedom of entities and individuals, including Christian ministries and educational institutions like Grace College and Seminary and Biola University, who object to paying for or providing insurance coverage for such items.
82. Any employer providing a health insurance plan that omits any abortifacients, contraception, sterilization, or education and counseling for the same, is subject (because of the Mandate) to heavy fines approximating $100 per employee per day. Such employers are also vulnerable to lawsuits by the Secretary of Labor and by plan participants.
83. A relatively large employer cannot freely avoid the Mandate by simply refusing to provide health insurance to its employees, because the PPACA imposes monetary penalties on entities that would so refuse.
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84. The exact magnitude of these penalties seems to vary according to the complicated provisions of the PPACA, but the fine is approximately $2,000 per employee per year.
85. If Grace College and Seminary dropped its employee health insurance plan in order to avoid the Mandate, it would face annual fines of at least $900,000. If Biola University dropped its employee health insurance plans in order to avoid the Mandate, it would face annual fines of at least $1,700,000.
86. PPACA also imposes monetary penalties on the Schools if they were to continue offering health insurance plans that omitted abortifacients.
87. The exact magnitude of these penalties seems to vary according to the complicated provisions of the PPACA, but the fine is approximately $100 per day per employee, with minimum amounts applying in different circumstances.
88. If the Schools do not submit to the Mandate, they will also be subject to a range of enforcement mechanisms that exist under ERISA, including but not limited to civil actions by the Secretary of Labor or by plan participants and beneficiaries, which would include but not be limited to relief in the form ofjudicial orders mandating that the Schools violate their beliefs and provide coverage for items to which they object on religious grounds.
89. The Mandate applies not only to sponsors of group health plans like the Schools, but also to issuers of insurance. Accordingly, Grace College and Seminary (which self-insures its employee plan) cannot avoid the Mandate by shopping for a plan from insurance companies.
90. The Mandate offers a narrow exemption to religious employers, but only if they meet all of the following requirements:
(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";
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(3) "The organization serves primarily persons who share the religious tenets of the organization"; and
(4) "The organization is a church, an integrated auxiliary of a church, a convention or association of churches, or is an exclusively religious activity of a religious order, under Internal Revenue Code 6033(a)(l) and (a)(3)(A)."
91. The Mandate imposes no constraint on the discretion ofHHS's Health Resources and Services Administration (HRSA) to grant exemptions to some, all, or none of the organizations meeting the Mandate's definition of "religious employers."
92. The Schools are not "religious" enough under this definition in several respects, including, but not limited to, because they have purposes other than the "inculcation of religious values" and because they are not churches, integrated auxiliaries of particular churches, conventions or associations of a church, or the exclusively religious activities of a religious order.
93. Even if the Schools were granted exempt status by HRSA under this exemption, they would only be exempt from offering coverage in their employee plans. The Mandate would require coverage of all FDA-approved contraceptive methods (including ella and Plan B), and counseling and education, in any health plan offered to students.
94. There are no clear guidelines restricting the discretion of Defendants when applying the Mandate and its many exceptions.
95. In order to determine whether employees, or persons an entity serves, share an institution's "religious tenets," someone would need to inquire into the detailed religious beliefs of all individuals that an entity employs, and that it serves.
96. It is unclear how Defendants define or will interpret religious "purpose." 97. It is unclear how Defendants define or will interpret vague terms, such as "primarily," "share," and "religious tenets."
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98. It is unclear how Defendants will ascertain the "religious tenets" of an entity, those it employs, and those it serves.
99. It is unclear how much overlap Defendants will require for religious tenets to be "share[ d]."
100. The limited and ill-defined religious employer exemption provided in the Mandate conflicts with the Constitution.
101. Moreover, the process by which Defendants determine whether an organization qualifies for the exemption will require Defendants to engage in an intrusive inquiry into whether, in the view ofHHS, the organization's "purpose" is the "inculcation of religious values" and whether it "primarily" employs and serves people who "share" its "religious tenets." The standards are impermissibly vague and subjective.
102. By basing the exemption on shared religious tenets, the Mandate compels the Schools to restructure their religious affiliation, admissions, employment, and service programs in order to fall within the scope of the Mandate's religious exemption.
103. The Mandate fails to protect the statutory and constitutional conscience rights of religious organizations like Grace College and Seminary and Biola University even though those rights were repeatedly raised in the public comments.
104. The Mandate requires that the Schools provide coverage for abortifacient methods, and education and counseling related to abortifacients, against their consciences in a mmmer that is contrary to law.
105. The Mandate constitutes government-imposed coercion on the Schools to change or violate their religious beliefs.
106. The Mandate exposes the Schools to substantial fines for refusal to change or violate their religious beliefs.
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107. The Mandate will impose a burden on the Schools' employee and student recruitment efforts by creating uncertainty as to whether or on what terms they will be able to offer health insurance or will suffer penalties therefrom.
108. If the Schools drop health insurance to avoid application ofthe Mandate, they will experience a competitive disadvantage in their efforts to recruit and retain employees and students.
109. The Mandate coerces the Schools to provide coverage for and otherwise facilitate the provision of Plan B, ella, other abortifacient drugs, and related counseling in violation of their religious beliefs.
110. The Schools have a sincere religious objection to providing coverage for Plan B because they believe the drug could prevent a human embryo, which they believes is a human being from the moment of conception/fertilization (including before it implants in the uterus), from implanting in the wall of the uterus, causing the death ofthe embryo.
111. The Schools have a sincere religious objection to providing coverage for ella because they believe the drug could either prevent a human embryo from implanting, or could cause the death of a recently implanted embryo.
112. The Mandate does not apply equally to various religious groups. 113. The Act is not generally applicable because it provides for numerous exemptions from its rules. 114. For instance, the Mandate does not apply to members of a "recognized religious sect or division" that conscientiously objects to acceptance of public or private insurance funds. See 26 U.S.C. §§ 5000A(d)(2)(a)(i) and (ii).
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115. In addition, as described above, the Mandate exempts certain churches narrowly considered to be religious employers, exempts grandfathered plans, and does not apply through the employer mandate to employers having fewer than 50 full-time employees.
116. Furthermore, the PPACA creates a system of individualized exemptions because under the PPACA's authorization the federal government has granted discretionary compliance waivers to a variety of businesses for purely secular reasons.
117. The Mandate does not apply to employers with group health plans that are "grandfathered."
118. Neither ofthe Schools' employee health insurance plans possess grandfathered status.
119. President Obama held a press conference on February 10,2012, and the Defendants later issued an "Advance Notice of Proposed Rulemaking" ("ANPRM") on March 21, 2012 (77 Fed. Reg. 16501-08), claiming to offer some sort of accommodation under which some religious non-profit organizations not qualifying for the religious exemption would still have to comply with the Mandate, but by means of the employer's insurer offering the employer's employees the same coverage for "free."
120. This alleged accommodation is not helpful to Grace College and Seminary because, among other reasons, it is its own insurer. Therefore requiring Grace College and Seminary's insurer to provide the objectionable coverage is simply a requirement that Grace College provide the coverage.
121. This alleged accommodation is not helpful to the Schools because, among other reasons, it does not yet actually exist. It does not exist in the rule or guidance the Administration made final on February 10, and it need never be formally proposed or adopted, much less adopted unchanged.
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122. The PPACA and its statutory preventive services requirement do not authorize Defendants to compel insurers or any other third-party source to offer free and allegedly independent coverage of items not covered by the employer's plan; it only encompasses requirements of the employer's plan itself. Therefore, the president's alleged accommodation is either illegal, or it mandates that the coverage occur through the employer's own plan.
123. Even if the president's "compromise" did exist in binding law, was statutorily authorized and had coherent boundaries, it would still violate the Schools' religious beliefs by forcing them directly to facilitate objectionable coverage by providing and paying for a plan that is itself necessary for the employee to obtain the coverage in question, and which coverage is not separate from the employer's plan. Nor are such services apparently "free," since a variety of costs contained in the Mandate would necessarily be passed onto the employer through premiums and/or administrative charges.
124. Also on March 21, 2012, HHS issued final regulations governing student plans, which, in conjunction with its Mandate, require that objectionable coverage be offered in student plans that the Schools make available to their students.
125. The Mandate makes it unclear whether the Schools will be able to offer health insurance as a benefit to their employees, and if so, the terms upon which it will be offered.
126. The Schools must take the Mandate into account now and in the near future as they plan expenditures, including employee compensation and benefits packages, for the next several years. They will have to negotiate contracts for new and existing employees and these contracts will extend into the time frame when the Mandate begins to apply to their health insurance plans (January 1, 2013 for Grace, April 1, 2013 for Biola).
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127. The Mandate, regardless of the president's proposed accommodations, will have a profound and adverse effect on the Schools and how they negotiate contracts and compensate their employees.
128. Because the Mandate is prompting the Schools to contemplate the elimination of health insurance benefits, Defendants are undermining the Schools' efforts to attract quality employees.
129. Any alleged interest Defendants have in providing free FDA-approved abortifacients without cost-sharing could be advanced through other, more narrowly tailored mechanisms that do not burden the fundamental rights of the Schools.
130. The Schools have expended and will continue to expend a great deal of time and money ascertaining the requirements of the Mandate and how it applies to their health insurance benefits.
131. The Schools wish to continue offering and facilitating health insurance coverage consistent with their religious beliefs without suffering penalties or burdens resulting from the Mandate.
132. Without injunctive and declaratory relief as requested herein, the Schools are suffering and will continue to suffer irreparable harm.
133. The Schools have no adequate remedy at law. FIRST CLAIM FOR RELIEF
Violation of the Religious Freedom Restoration Act
42 u.s.c. § 2000bb
134. Plaintiffs reallege all matters set forth in paragraphs 1-133 and incorporate them herein.
135. The Schools' sincerely held religious beliefs prohibit them from providing or facilitating coverage for abortion, abortifacients, embryo-harming pharmaceuticals, and related
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education and counseling, or providing a plan that causes access to the same through their m. surance compam.es.
136. When the Schools comply with the Sixth Commandment and other sincerely held religious beliefs, they exercise religion within the meaning of the Religious Freedom Restoration Act.
137. The Mandate imposes a substantial burden on the Schools' religious exercise and coerces them to change or violate their religious beliefs. It penalizes them for offering health insurance plans that do not cover abortion, abortifacients, embryo-harming pharmaceuticals, and related education and counseling, or that cause access to the same through their insurance companies. Defendants substantially burden the Schools' religious exercise when they force the Schools to choose between either following their religious commitments and suffering debilitating punishments or violating their consciences in order to avoid those punishments.
138. The Mandate chills the Schools' religious exercise within the meaning ofRFRA. 139. The Mandate exposes the Schools to substantial fines and/or financial burdens for their religious exercise. 140. The Mandate exposes the Schools to substantial competitive disadvantages because of uncertainties about their health insurance benefits caused by the Mandate. 141. The Mandate furthers no compelling governmental interest and is not narrowly tailored to any compelling governmental interest. The Mandate does not apply to the enormous number of health insurance plans that enjoy "grandfathered" status, conclusively demonstrating the less-than-compelling nature of the interest that allegedly underlies the Mandate. The Mandate also does not apply to plans sponsored by employers that qualify for the religious exemption. Access to abortifacients is not a significant social problem, and compelling Grace
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and Biola to pay for or otherwise facilitate access to such drugs and devices is hardly the least restrictive means of advancing any interest the government that Defendants might have.
142. The Mandate violates RFRA. SECOND CLAIM FOR RELIEF
Violation of Free Exercise Clause of the First Amendment to the United States Constitution
143. Plaintiffs reallege all matters set forth in paragraphs 1-133 and incorporate them herein.
144. The Schools' sincerely held religious beliefs prohibit them from providing coverage for abortion, abortifacients, embryo-harming pharmaceuticals, and related education and counseling, or providing plans that cause access to the same through their insurance company.
145. When the Schools comply with the Sixth Commandment and other sincerely held religious beliefs, they exercise religion within the meaning of the Free Exercise Clause.
146. The Mandate imposes a substantial burden on the Schools' religious exercise and coerces them to change or violate their religious beliefs. Defendants substantially burden the Schools' religious exercise when they force the Schools to choose between either following their religious commitments and suffering debilitating punishments or violating their consciences in order to avoid those punishments.
147. The Mandate is not neutral and is not generally applicable. It does not apply to the enom10us number of health insurance plans that enjoy "grandfathered" status. It does not apply to religious employers that qualify for the Mandate's extraordinarily narrow religious exemption. It does not apply to the employers to whom the Defendants have given waivers from the Affordable Care Act.
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148. Defendants have created categorical exemptions and individualized exemptions to the Mandate.
149. The Mandate furthers no compelling governmental interest. The Mandate does not apply to the enormous number of health insurance plans that enjoy "grandfathered" status, conclusively demonstrating the less-than-compelling nature of the interest that allegedly underlies the Mandate. The Mandate also does not apply to plans sponsored by employers that qualify for the religious exemption. Access to abortifacients is not a significant social problem, and compelling Grace and Biola to pay for or otherwise facilitate access to such drugs and devices is hardly the least restrictive means of advancing any interest the government that Defendants might have.
150. The Mandate coerces the Schools to change or violate their religious beliefs. 151. The Mandate chills the Schools' religious exercise. 152. The Mandate exposes the Schools to substantial fines and/or financial burdens for their religious exercise. 153. The Mandate exposes the Schools to substantial competitive disadvantages because of uncertainties about their health insurance benefits caused by the Mandate. 154. Defendants designed the Mandate and the religious exemption therefrom in a way that make it impossible for the Schools and other similar religious organizations to comply with their religious beliefs. 155. Defendants promulgated both the Mandate and the religious exemption in order to suppress the religious exercise of the Schools and others. 156. By design, Defendants framed the Mandate to apply to some religious organizations but not to others, resulting in discrimination among religions.
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157. The Mandate violates the Schools' rights secured to it by the Free Exercise Clause of the First Amendment of the United States Constitution.
THIRD CLAIM FOR RELIEF Violation of the Establishment Clause of the First Amendment to the United States Constitution 158. Plaintiffs reallege all matters set forth in paragraphs 1-133 and incorporate them herein. 159. The First Amendment's Establishment Clause prohibits the establishment of any religion and/or excessive government entanglement with religion. 160. To determine whether religious organizations like Grace College and Seminary and Biola University are required to comply with the Mandate, continue to comply with the Mandate, are eligible for an exemption, or continue to be eligible for an exemption, Defendants must examine the organization's religious beliefs and doctrinal teachings, and that of its employees and persons it serves. 161. Obtaining sufficient information for the Defendants to analyze the content the Schools' religious beliefs requires ongoing, comprehensive government surveillance that impermissibly entangles Defendants with religion. 162. The Mandate discriminates among religions and among denominations, favoring some over others. 163. The Mandate adopts a particular theological view of what is acceptable moral complicity in provision of abortifacient coverage and imposes it upon all religionists who must either conform their consciences or suffer penalty. 164. The Mandate violates the Schools' rights secured to it by the Establishment Clause of the First Amendment ofthe United States Constitution.
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FOURTH CLAIM FOR RELIEF Violation of the Free Speech Clause of the First Amendment
to the United States Constitution 165. Plaintiffs reallege all matters set forth in paragraphs 1-133 and incorporate them herein. 166. Defendants' requirement of provision of insurance coverage for education and counseling regarding contraception causing abortion forces the Schools to speak in a manner contrary to their religious beliefs. 167. Defendants have no narrowly tailored compelling interest to justify this compelled speech. 168. The Mandate violates the Schools' rights secured to them by the Free Speech Clause of the First Amendment ofthe United States Constitution.
FIFTH CLAIM FOR RELIEF Violation of the Due Process Clause of the Fifth Amendment to the United States Constitution 169. Plaintiffs reallege all matters set forth in paragraphs 1-133 and incorporates them herein. 170. Because the Mandate sweepingly infringes upon religious exercise and speech rights that are constitutionally protected, it is unconstitutionally overbroad in violation of the due process rights of the Schools and other parties not before the Court. 171. Persons of common intelligence must necessarily guess at the meaning, scope, and application of the Mandate and its exemptions. 172. This Mandate lends itself to discriminatory enforcement by government officials in an arbitrary and capricious manner, and lawsuits by private persons, based on the Defendants' vague standards.
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173. The Mandate vests Defendants with unbridled discretion in deciding whether to aliow exemptions to some, all, or no organizations that possess religious beliefs and/or that meet the Defendants' definition of"religious employer."
174. This Mandate is an unconstitutional violation of the Schools' due process rights under the Fifth Amendment to the United States Constitution.
SIXTH CLAIM FOR RELIEF Violation of the Administrative Procedure Act 175. Plaintiffs reallege all matters set forth in paragraphs 1-133 and incorporate them herein. 176. Because they did not give proper notice and an opportunity for public comment, Defendants did not take into account the full implications of the regulations by completing a meaningful consideration of the relevant matter presented. 177. Defendants did not consider or respond to the voluminous comments they received in opposition to the interim final rule. 178. Therefore, Defendants have taken agency action not in accordance with procedures required by law, and the Schools are entitled to relief pursuant to 5 U.S.C. § 706(2)(D). 179. In promulgating the Mandate, Defendants failed to consider the constitutional and statutory implications of the mandate on Grace College and Seminary, Biola University, and similar organizations. 180. Defendants' explanation (and lack thereof) for its decision not to exempt the Schools and similar religious organizations from the Mandate runs counter to the evidence submitted by religious organizations during the comment period.
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181. Thus, Defendants' issuance ofthe Mandate was arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because the Mandate fails to consider the full extent of its implications and it does not take into consideration the evidence against it.
182. As set forth above, the Mandate violates RFRA and the First and Fifth Amendments.
183. The Mandate is also contrary to the provisions of the PPACA which states that "nothing in this title"-i.e., title I of the Act, which includes the provision dealing with "preventive services"-"shall be construed to require a qualified health plan to provide coverage of [abortion] services ... as part of its essential health benefits for any plan year." Section 1303(b)(1 )(A).
184. The Mandate is also contrary to the provisions of the Weldon Amendment of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act of2009, Public Law 110 329, Div. A, Sec. 101, 122 Stat. 3574, 3575 (Sept. 30, 2008), which provides that "[n]one of the funds made available in this Act [making appropriations for Defendants Department of Labor and Health and Human Services] may be made available to a Federal agency or program ... if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions."
185. The Mandate also violates the provisions ofthe Church Amendment, 42 U.S.C. § 300a-7(d), which provides that "No individual shall be required to perform or assist in the performance of any part of a health service program or research activity funded in whole or in part under a program administered by the Secretary of Health and Human Services if his performance or assistance in the performance of such part of such program or activity would be contrary to his religious beliefs or moral convictions."
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186. The Mandate is contrary to existing law and is in violation of the APA under 5
u:s.C. § 706(2)(A).
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request the following relief: A. That this Court enter a judgment declaring the Mandate and its application to Grace College and Seminary, Biola University, and others not before the Court to be an unconstitutional violation of its rights protected by RFRA, the Free Exercise, Establishment, and Free Speech Clauses of the First Amendment to the United States Constitution, the Due Process Clause of the Fifth Amendment to the United States Constitution, and the Administrative Procedure Act; B. That this Court enter a permanent injunction prohibiting Defendants from continuing to apply the Mandate in a way that substantially burdens the religious belief of any person in violation ofRFRA and the Constitution, and prohibiting Defendants from continuing to illegally discriminate against Grace College and Seminary, Biola University, and others not before the Court by requiring them to provide health insurance coverage for abortifacients and abortion/abortifacient counseling to their employees and/or to their students;
C. That this Court award Plaintiffs court costs and reasonable attorney's fees, as
provided by the Equal Access to Justice Act and RFRA (as provided in 42 U.S.C. § 1988); D. That this Court grant such other and further relief as to which the Plaintiffs may
be entitled.
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Respectfully submitted,~
t~~~~01941500)
MatthewS. Bowman* (DC Bar No. 993261) ALLIANCE DEFENDING FREEDOM 801 G Street, NW, Suite 509 Washington, DC 20001 (202) 393-8690 (202) 347-3622 (facsimile) gbay lor@alliancedefendingfreedom. org mbowman@alliancedefendingfreedom.org
David A. Cortman* (Georgia Bar No. 188810) ALLIANCE DEFENDING FREEDOM 1000 Hurricane Shoals Road, NE, Suite D-11 00 Lawrenceville, GA 30043 (770) 339-0774 (770) 339-6744 (facsimile) dcortman@alliancedefendingfreedom.org
Kevin H. Theriot* (Kansas BarNo. 21565) ALLIANCE DEFENDING FREEDOM 15192 Rosewood Leawood, KS 66224 (913) 685-8000 (913) 685-8001 (facsimile) ktheriot@alliancedefendingfreedom.org
Jerry Mackey* (California Bar No.90416) 13800 Biola Avenue La Mirada, CA 90639 (562) 903-4777 (562) 903-4748) (facsimile) university.legalcounsel@biola.edu
Jane Dall Wilson (Atty No. 24142-71A) FAEGRE BAKER DANIELS LLP 300 North Meridian Street, Suite 2700 Indianapolis, IN 46204 (317) 237-0300 (317) 23 7-1 000 (facsimile) jane.wilson@faegrebd.com
Attorneys for Plaintiff
*Motion to appear pro hac vice to be submitted

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION

GRACE SCHOOLS and BIOLA UNIVERSITY,
Plaintiffs,
v.
KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services, et al.,
Defendants.

) ) ) ) ) ) CASE NO. 3:12-cv-459-JD-CAN ) ) ) ) )

AMICI CURIAE BRIEF OF THE AMERICAN CENTER FOR LAW & JUSTICE AND REGENT UNIVERSITY IN SUPPORT OF PLAINTIFFS

Jay Alan Sekulow* Jordan Sekulow* Stuart J. Roth* American Center for Law & Justice 201 Maryland Avenue, NE Washington, DC 20002 202-546-8890; Fax. 202-546-9309
CeCe Heil* American Center for Law & Justice 1000 Regent University Drive Virginia Beach, Virginia 23464 757-226-2489; Fax. 757-226-2836
** Admitted to N.D. Indiana Bar * Not admitted to N.D. Indiana Bar

Edward L. White III** Counsel of Record
American Center for Law & Justice 5068 Plymouth Road Ann Arbor, Michigan 48105 734-662-2984; Fax. 734-302-1758 ewhite@aclj.org
Francis J. Manion* Geoffrey R. Surtees* American Center for Law & Justice 6375 New Hope Road New Hope, Kentucky 40052 502-549-7020; Fax. 502-549-5252
Louis A. Isakoff* Regent University 977 Centerville Turnpike, SHB 202 Virginia Beach, Virginia 23463 757-226-2794; Fax. 757-226-2793 Isakoff@regent.edu

case 3:12-cv-00459-JD-CAN document 36 filed 01/02/13 page 2 of 26
CONSENT TO FILE AMICUS BRIEF After contacting all parties, no party is opposed to the Am erican Center for Law and Justice and Regent University’s request to file as Amici. In particular, counsel for the plaintiffs has consented to Am ici filing a brief and coun sel for the defendant has expressly taken no position.
FRCP 7.1 CORPORATE DISCLOSURE (1) Amicus curiae, the Am erican Center for Law and Justice is not a publicly held corporation, issues no stock, and has no parent corporation. (2) Because the Am erican Center for La w and Justice issues no stock, no publicly held corporation owns 10% or more of its stock. (3) Amicus Regent University is a 501(c)(3) corporation, issues no stock, and has no parent company. (4) Because Regent University issues no stock, no publicly h eld corporation owns 10% or more its stock. Dated: December 7, 2012. /s/ Edward L. White III Edward L. White III Counsel for Amici
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TABLE OF CONTENTS TABLE OF AUTHORITIES ........................................................................................................ iii INTEREST OF THE AMICI CURIAE ...........................................................................................1 ARGUMENT ...................................................................................................................................3
I. THE MANDATE RUNS COUNTER TO LONGSTANDING AMERICAN LAW AND TRADITION. .............................................................................................................4
II. THE COLLEGES HAVE STANDING AND THEIR CLAIMS ARE RIPE .......................6 A. The Claims are Ripe Because the Mandate, as Written, has a Direct Effect on Plaintiffs’ Day-to-Day Busi ness and Requires Imm ediate and Significant Changes to Plaintiffs’ Conduct..............................................................9 B. The Advanced Notice of Proposed Rulem aking Should Hold Only the Weight of an Illusory Promise and Litigation Posturing. .....................................10 C. Even if the ANPRM is a Good Fait h Commitment to Consider Changes to the Mandate, it Does Not Actually Change or Even Promise to Change Anything, nor Does it Allevia te the Ac tual and Imm inent Injuries Currently Imposed on Plaintiffs. ...........................................................................13
CONCLUSION .............................................................................................................................17 CERTIFICATE OF COMPLIANCE .............................................................................................18 CERTIFICATE OF SERVICE ......................................................................................................19
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TABLE OF AUTHORITIES

CASES

Page(s)

Abbott Labs. v. Gardner, 387 U.S. 136 (1967)...................................................................................................7, 14, 15, 16

American Petroleum Inst. v. EPA, 683 F.3d 382 (D.C. Cir. 2012) .....................................................................................................8

American Petroleum Inst. v. United States EPA, 906 F.2d 729, 739–40 (D.C. Cir. 1990) ......................................................................................9

Belmont Abbey Coll. v. Sebelius, Civil Action No. 11-7989 (JEB), 2012 WL 2914417 (D.D.C. July 18, 2012) ...........................................................................8, 12

Blanchette v. Connecticut Gen. Ins. Corp., 419 U.S. 102 (1974).....................................................................................................................7

FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007).....................................................................................................................1

Florida State Conf. of NAACP v. Browning, 522 F.3d 1153 (11th Cir. 2008) ...................................................................................................7

Goudy-Bachman v. U.S. Dep’t of Health & Human Servs., 764 F. Supp. 2d 684 (M.D. Pa. 2011) ........................................................................................14

Hobby Lobby Stores, Inc. v. Sebelius, 2012 U.S. Dist. LEXIS 164843 (W.D. Okl. Nov. 19, 2012) .......................................................4

Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993).....................................................................................................................1

Legatus v. Sebelius, 2012 U.S. Dist. LEXIS 156144 (E.D. Mich. Nov. 1, 2012) ........................................................3

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).....................................................................................................................7

Mead v. Holder, 766 F. Supp. 2d 16 (D.D.C. 2011), aff’d by Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011) .......................................................14

McConnell v. FEC, 540 U.S. 93 (2003).....................................................................................................................15

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Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) ...........................................................................................................1, 14
Newland v. Sebelius, 2012 U.S. Dist. LEXIS 104835 (D. Colo. July 27, 2012) ..........................................................3
O’Brien v. U.S. Department of Health & Human Services, Case No. 12-3357, Order of Nov. 28, 2012 (8th Cir.) .............................................................1, 3
Pleasant Grove City v. Summum, 555 U.S. 460 (2009).....................................................................................................................1
Riva v. Massachusetts, 61 F.3d 1003 (1st Cir. 1995) ......................................................................................................15
Roman Catholic Archdiocese of New York v. Sebelius, 12-cv-2542 (BMC) 2012 U.S. Dist. LEXIS 172695 (E.D.N.Y Dec. 5, 2012) ...............8, 12, 13
Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011), superseded in part by Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) ...........................................................................................................1, 14
TMLC v. Obama, 651 F.3d 529 (6th Cir. 2011), superseded in part by Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) ...............................................................................................................14
Tyndale House Publrs. v. Sebelius, 2012 U.S. Dist. LEXIS 163965 (D.D.C. Nov. 16, 2012) ............................................................3
Van Orden v. Perry, 545 U.S. 677 (2005).....................................................................................................................1
Wheaton Coll. v. Sebelius, Civil Action No. 12-1169 (ESH), 2012 WL 3637162 (D.D.C. Aug. 24, 2012), appeal docketed, No. 12-5273 (D.C. Cir. Sept. 12, 2012) ..........................................................8
Zorach v. Clauson, 343 U.S. 306 (1952).....................................................................................................................4
STATUTES AND REGULATIONS
26 U.S.C.A. § 4980D .......................................................................................................................9
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26 U.S.C.A. § 4980H .....................................................................................................................10 45 C.F.R. § 147.130 .......................................................................................................................11 75 Fed. Reg. 41,726 (July 19, 2010)..............................................................................................10 76 Fed. Reg. 46,621 (Aug. 3, 2011)...............................................................................................11 77 Fed. Reg. 8725 (Feb. 15, 2012) ..................................................................................................8 77 Fed. Reg. 16,501, 16,505 (Mar. 21, 2012)................................................................................12 OTHER AUTHORITIES Comments from the Catholic M edical Association regard ing the In terim Final Rule f or
Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventative Service (Sept. 17, 2010) ............................................................................................................11 Comments from The National Catholic Bioethics Center regarding the Interim Final Rule for Group Health Plans and Health Insura nce Issuers Relating to Coverage of Preventative Service (Sept. 17, 2010) .......................................................................................11 Comments from Wheaton College, President Philip G. Ryken, reg arding Interim Final Rules on Preventive Services (Sept. 27, 2011) .........................................................................11 Comments from The Witherspoon Institu te regarding the Interim Final Rule for Group Health Plans and Health Insuran ce Issuers Relating to C overage of Preventative Service (Sept. 28, 2010) ............................................................................................................11 Complaint...................................................................................................................................9, 10 Genesis 9:6.......................................................................................................................................6 Jefferson Letter to the Members of the Baltimore Baptist Associa tion, 1808, RJ&L Religious Liberty Archive ...........................................................................................................4 Luke 1:41......................................................................................................................................2, 6 Matthew L. Harris & T homas S. Kidd (ed itors), The Founding Fathers & the Debate Over Religion in Revolutionary America: A History in Documents (Oxford U. Press 2012) ................................................................................................................5 Michael McConnell, The Origins and Historical Unde rstanding of Free Exercise of Religion, 103 Harvard L. Rev. 1409 (1990) ................................................................................5
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Press Release, HHS Press Office, A Statement by U.S. Depart ment of Health and Human Services Secretary Kathleen Sebelius (Jan. 20, 2012)...................................................11. 12, 13
Press Release, The E thics & Relig ious Liberty Commission of the Southern Baptist Convention, On the Oba ma Administration’s Abortion Rule (Feb. 7, 2012), http://erlc.com/documents/pdf/20120207-landduke-abortion-hhs.pdf ........................................6
Psalm 22.......................................................................................................................................2, 6 Psalm 139.....................................................................................................................................2, 6 Regent University, Faculty & Academic Policy Handbook (2012),
http://www.regent.edu/academics/academic_affairs/faculty_handbook.cfm ..............................2 Regent University, Student Handbook (2011),
http://www.regent.edu/admin/stusrv/docs/StudentHandbook.pdf ..............................................2 Regent’s Vision – A Leading Global Christian University, Regent University,
http://www.regent.edu/about_us/overview/mission_statement.cfm ...........................................2 Susan J. Stabile, State Attempts to Define Relig ion: The Ramifica tions of Ap plying
Mandatory Prescription Contraceptive Coverag e Statutes to Religious Employers , 28 Harvard J. L. & Pub. Pol’y 741 (2005) ..................................................................................6
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INTEREST OF THE AMICI CURIAE Amicus curiae, the American Center for La w & Justice (“ACLJ”), is an organization dedicated to defending constituti onal liberties secured by law. ACLJ atto rneys have argued before the Suprem e Court of the United States a nd other federal and state courts in num erous cases involving constitutional issues. E.g., Pleasant Gro ve City v. Summum , 555 U.S. 460 (2009); Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist. , 508 U.S. 384 (1993). ACLJ attorneys also have participated as amicus curiae in num erous cases involving co nstitutional issues before the Supreme Court and lower federal courts. E.g., FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007); Van Orden v. Perry, 545 U.S. 677 (2005). The ACLJ has been active in litig ation concerning the Affordable Care Act (“A CA”) from which the United States Department of Health & Human Services (“HHS”) is authorized to promulgate the Mandate, at issue here, to require employers to cover ster ilization, prescription contraceptives, abortion-inducing drugs, and related patient education and counseling services in their health insurance pl ans (“the Mandate”). T he ACLJ f iled several amicus curiae briefs in support of various challenges to the ACA’s insurance requirem ent for individuals, such as National Federation of Independent Business v. Sebelius , 132 S. Ct. 2566 (2012), and represented the plaintiffs in their challenge to that requirement in Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011), superseded on other grounds by Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012). Moreover, the ACLJ has been active in the litigation concerning the Mandate. For example, the ACLJ represents th e plaintiffs-appellants in O’Brien v. U.S. Department of Health & Human Services, Case No. 12-3357 (8th Cir.), and repr esents plaintiffs in other actions challenging the Mandate. As such, the ACLJ has an interest that may be affected by the outcome
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of this actio n because a ny decision by this court will be persuas ive authority in the ACLJ’s Mandate litigation.
This brief is also filed on behalf of the ACLJ’s Committee of Concerned Citizens which consists of over 40,000 Am ericans who support religious freedom and who oppose efforts t o force religious employers to violate their sincerely held religious beliefs.
Furthermore, this brief is filed on behalf of amicus curiae Regent University (“Regen t”), which is a fully accredited Christian institution of higher education. Regent is established as a Virginia non-stock non-profit co rporation, and is exem pt from income taxation under section 501(c)(3) of the Internal Revenue C ode. Since it s incorporation, its Christian m ission has been fundamental to its existence. Regent’s m ission is to serve as a “leading center of Christian thought and action to provide excellent educati on through a Biblical perspective and global context equipping Christian leaders to change the world.”1/
While Regent is not af filiated with any deno mination or church, traditional Biblical Christianity permeates all that R egent does. Classes at Regent are taught from a Biblical perspective, and all em ployees, including professors, support sta ff, groundskeepers, custodians, the President, and Trustees of Regent are required to be Christians and to affirm in writing their agreement with the University’s Statement of Faith.2/
Regent has two separate health care cove rage programs—one for students and one for employees. Following the clear Biblical mandate that life begins at conception,3/ Regent does not

1/ Regent’s Vision - A Leading Global Christian University, Regent Unive rsity,

http://www.regent.edu/about_us/overview/mission_statement.cfm (last visited Oct. 8, 2012). 2/ See, e.g., Regent University, Faculty & A cademic Policy Handbook 10 (2012),

http://www.regent.edu/academics/academic_affairs/faculty_handbook.cfm (last visited Oct. 8,

2012);

Regent University,

Student

Handbook

7 (2011),

http://www.regent.edu/admin/stusrv/docs/StudentHandbook.pdf (last visited Oct. 8, 2012). 3/ See, e.g., Psalm 22; Psalm 139; Luke 1:41.

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provide health care coverage for abortions or fo r abortifacients. To require Regent to m ake abortion coverage available under either of its health care cove rage plans would violate the sincerely-held religious values that have consistently guided Regent since its inception.
The amici curiae are dedicated to the founding principles of religious freedom in this country. They believe that the laws of this nation cannot empower Defendants to force people of faith to violate their religious principles in the manner required by the Mandate and, in fact, the Constitution prohibits this. Amici curiae bring a perspective to this cas e that should assist this court in resolving the issues before it. Am ici curiae file this brief in support of plaintiffs Grace Schools and Biola University (“the Colleges” or “the Christian Colleges”).
ARGUMENT This case is about affirming Constitutional principles of Free Speech and Free Ex ercise, adhering to the statutory require ments of the Religious F reedom and Restoration Act, and m ost of all providing an adequate remedy for Plaintiffs who have suffered and continue to suffer harm as a result of Defendants’ viola tion of longstanding principles of American law and tradition. Defendants have established final re gulations that require Plaintiffs to pay for abortifacients and related counseling in violation of the Plaintiffs sincerely held religious beliefs. Although four courts have already granted pre liminary injunctions to plaintiffs challenging the same Mandate that the Colleges challen ge here,4/ Defendants seek to dism iss this case based on the erroneous assertion that Plaintiffs are not harmed by the Mandate.
4/ O’Brien v. U.S. H.H.S. , No. 12-3357, Order (8th Cir. Nov. 28, 2012); Tyndale House Publrs. v. Sebelius, 2012 U.S. Dist. LEXIS 163965 (D.D.C. Nov. 16, 2012); Legatus v. Sebelius, 2012 U.S. Dist. LEXIS 156144 (E.D. Mich. Nov. 1, 2012); Newland v. Sebelius, 2012 U.S. Dist. LEXIS 104835 (D. Colo. July 27, 2012). But see Hobby Lobby Stores, Inc. v. Sebelius, 2012 U.S. Dist. LEXIS 164843 (W.D. Okl. Nov. 19, 2012) (den ying motion for prelim inary injunction) appeal docketed, No. 12-6294 (10th Cir. Nov. 20, 2012).
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Plaintiffs are harmed by the M andate because it runs coun ter to longstanding American law and tra dition and v iolates both Constitutional and sta tutory principles of Free Speech and Free Exercise. Furtherm ore, Plaintiffs have standing and their claim s are ripe because, regardless of a brief stay of governm ent enforcement and the illuso ry possibility of refor m, Plaintiffs must prepare now to pay the significant financial penalties th at will be lev ied on nonexempt organizations that do not subsidize the provision of abortion-inducing drugs. I. THE MANDATE RUNS COUNTER TO LONGSTANDING AMERICAN LAW
AND TRADITION. This Nation has a long and proud tradition of accommodating the re ligious beliefs and practices of all its c itizens, not dividing them into “approved” and “disapproved” cam ps at the discretion of governm ent functionaries. See Zorach v. Cla uson, 343 U.S. 306, 313–14 (1952) (noting that government follows “the best of our traditions” when it “respects the religious nature of our people and accommodates the public service to their spiritual needs”). The Founding Fathers m ade it clear that bot h conscience rights and religious rights occupy the highest rung of civil liberty protecti ons. For exam ple, before the end of Thom as Jefferson’s second term as President, he wrote to the Baltim ore Baptist Association stressing the importance of religious freedom under the Constitu tion.5/ Regarding potential challenges posed to the religious freedom guaranteed to all Am ericans, Jefferson stated that “a recollection of our former vassalage in religion . . . will unite the z eal of every heart, and the energy of every hand, to preserve that independence.”6/
5/ Jefferson Letter to the Members of th e Baltimore Baptist Association, 1808 , RJ&L Religious Liberty Archive, http://www.churchst atelaw.com/historicalmaterials/8_8_8.asp (last visited Oct. 8, 2012).
6/ Id. 4

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Moreover, President George Washington stated in a 1789 letter to the United Baptists in

Virginia his views regarding the protections afforded religious liberties by the Cons titution and

that he would fight against any efforts by the government to threaten those religious liberties:

If I could have entertained the slightest apprehension that the Constitution framed in the Convention, where I had the honor to preside, might possibly endanger the religious rights of any eccles iastical Society, certainly I would never hav e placed my signature to it; and if I could now conceive that the general Government might ever be so administered as to render th e liberty of conscience insecure, I beg you will be pers uaded that no one would be more zealous th an myself to establish effectual barriers against th e horrors of spiritual ty ranny, and every species of religious persecution.7/

Before these statem ents by Jefferson and Washington—in fact, even before the

Declaration of Independence in 1776—the Continental Congress passed a resolution in 1775

exempting individuals with pacifist religious convictions from military conscription:

As there are some people, who, from religious principles, cannot bear arms in any case, this Congress intend no violence to their consciences, but earnestly recommend it to them, to contribute liberally in this time of universal calamity, to the relief of their distressed brethren in the several colonies, and to do all other services to their oppressed Country, whic h they can consistently with their religious principles.8/

Even when the country was in dire need

of m en to take up arm s to fight for

independence, our forefathers knew that conscien ce is inviolable and must be honored. They

understood that to cons cript men into military service against their conscience would have

undermined the very cause of liberty to which they pledged their lives , property, and sacred

honor.

7/ Matthew L. Harris & Thom as S. Kidd (edito rs), The Founding Fathers & the Debate Over Religion in Revolutionary A merica: A History in Documents 137–38 (Oxford U. Press 2012).
8/ Michael McConnell, The Origins and Historical Unde rstanding of Free Exercise of Religion, 103 Harvard L. Rev. 1409, 1469 (1990).
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The Mandate im poses a substantial burden on individuals and organizations, including the Christian Colleges here, who firmly oppose having to violate their sincere religious beliefs to comply with the Mandate. The Christian Chur ch’s longstanding m oral opposition to abortion does not stem from a tangential, m inor point of doctrine; it is a core prin ciple of the Church that life, beginning at conception, m ust be valued and preserved. 9/ The Colleges’ position on this issue is not something that can be carved out from their religious belief system. As one writer has described it, “to force religious organizations to provide cove rage for procedures that are abortive . . . [is to] violate[] a deeply held moral principle against killing.” 10/ Christian leaders have even referred to the Mandate as “abhorrent,” in that “[i]t forces [Christians] to choose between their religious convictions about when hu man life begins and provi ding health care for themselves, their families, or their employees.”11/
For Defendants to m andate that C hristian employers provide insurance coverage for services that are contrary to their ba sic religious tenets demonstrates a contempt by Defendants for what it m eans to be Christian. Faithfulness to the teachings of the Church perm eates every aspect of the Colleges’ activities. Thus, the Mandate presents all non-exempt Christian employers with a stark choice: ob ey Caesar, or obey Christ. The burden of such a choice is clearly “substantial” in the constitu tional sense. The Colle ges simply ask to be p ermitted to continue their work without havi ng to violate their sincerely he ld religious beli efs, and invoke the same protection of conscience recognized since the time of the Continental Congress.
9/ See, e.g., Psalm 22; Psalm 139; Luke 1:41; Genesis 9:6. 10/ Susan J. Stabile, State Attempts to Define Religion: The Ramificatio ns of Applying Mandatory Prescription Contraceptive Coverage Statutes to Religious Employers, 28 Harvard J. L. & Pub. Pol’y 741, 753 (2005). 11/ Press Release, The E thics & Religious Li berty Commission of the S outhern Baptist Convention, On the Obam a Administration’s Abortion Rule (Feb. 7, 2012), available at http://erlc.com/documents/pdf/20120207-landduke-abortion-hhs.pdf.
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II. THE COLLEGES HAVE STANDING AND THEIR CLAIMS ARE RIPE Article III standing consists of three elements: (1) an “injury in f act” that is “co ncrete
and particularized” and is “actual or imminent,” (2) a “causal connection between the injury and the conduct com plained of,” and (3 ) an injury that is “likely” to be “red ressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) (citations omitted). The motion before this court hinges prim arily on Defe ndants’ erroneous allega tion that Plaintiffs have not suffered an “injury in fact” that is concrete, particular, and actual or imminent. A “particularized” injury is one that “affect[s] the plaintiff in a personal and individual way,” id. at 560 n.1, while the element of “imminent” ha rm is “a som ewhat elastic concept,” id. at 564 n.2, that “requires only tha t the anticip ated injury occur with[in] som e fixed period of tim e in the future, not that it happen in the colloquial sense of soon or precisely with in a certain number of days, weeks, or m onths.” Florida State Conf. of NAACP v. Browning , 522 F.3d 1153, 1161 (11th Cir. 2008) (citing Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211–12 (1995)).
In considering the related concept of ripene ss, courts “ evaluate both the f itness of the issues for judicial decision and th e hardship to the parties of w ithholding court consideration.” Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967). Hardship to the parties is present when the law places a plaintiff in a “very real dilemma,” “has a direct effect on the [plaintiff’s] day-to-day business,” or “requires an imm ediate and s ignificant change in the p laintiffs’ conduct of the ir affairs.” Id. at 152–53. In Blanchette v. Connecticut General Insurance Corp. , the Suprem e Court stated that, “[ w]here the inevitab ility of the operation of a statute against certain individuals is patent, it is irrelevant to the existence of a justiciable controversy that there will be a time delay before the disputed provisions wi ll come into effect.” 419 U.S. 102, 143 (1974) (citations omitted).
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The most recent court to address standing a nd ripeness in a sim ilar case involving the

Mandate concluded that “notwithstanding the ANPRM, plaintiffs have standing to bring this suit

based on their future injuries” because “the possi bility of a future amendment to the Coverage

Mandate that relieves plaintiffs from their obligation to cover contraceptive services and renders

this action moot is spec ulative and is not sufficient to m ake plaintiffs’ claims non-justiciable.”

Roman Catholic Archdiocese of N ew York v. Sebelius , 12-cv-2542 (BMC) 2012 U.S. Dist.

LEXIS 172695 at *49 (E.D.N.Y Dec. 5, 2012). Othe r courts to addre ss this issue have

erroneously dismissed similar suits based on a misapplication of American Petroleum Institute v. EPA, 683 F.3d 382 (D.C. Cir. 2012). 12/ Those courts “overestimate[d] the sign ificance of the

ANPRM and underestimate the finality of the Coverage Man

date.” Roman Catholic

Archdiocese, 2012 U.S. Dist. LEXIS 172695 at *49. This court should follow the persuasive

reasoning of the court in Roman Catholic Archdiocese and find, as discussed infra, that th e

Mandate is curren tly injuring the C olleges, resulting in the Colleges h aving standing to bring

their ripe claims.

A. The Claims are Ripe Because the Mandate, as Written, has a Direct Effect on Plaintiffs’ Day-to-Day Business and Requires Immediate and Significant Changes to Plaintiffs’ Conduct.

The Mandate was first enacted in July 2010, and was a mended in August, 2011, to add a

narrow exemption for certain religious em ployers, which does not apply to the Colleges . In

February 2012, the Mandate was “adopted as the final rule without change.” 77 Fed. Reg. 8725,

12/ See, e.g., Wheaton C oll. v. Sebelius , Civil Action No. 12-1169 (ES H), 2012 WL 3637162 (D.D.C. Aug. 24, 2012), appeal docketed, No. 12-5273 (D.C. Cir. Sept. 12, 2012); Belmont Abbey Coll. v. Sebelius , Civil Action No. 11-7989 (JEB), 2012 W L 2914417 (D.D.C. July 18, 2012), appeal docketed, No. 12-5291 (D.C. Cir. Sept. 14, 2012). The court in American Petroleum noted that “initiating a new proposed rulemaking” cannot “stave off judicial review of a challenged rule,” American Petroleum, 683 F.3d at 388, and merely adopted a narrow exception not applicable here.
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8730 (Feb. 15, 2012) (em phasis added). Although Defendants contend that there m ay be changes to the final rule, including a possible accommodation, that contention is meaningless for purposes of ripeness. “[A]n agency always retains the power to revi se a final rule through additional rulemaking. If the possi bility of unforeseen amendments were sufficient to render an otherwise fit challenge unripe, review could be deferred indefinitely.” American Petroleum Inst. v. United States EPA, 906 F.2d 729, 739–40 (D.C. Cir. 1990). In other words, while Defendants could eventually m ake a m ootness argument in the event that a hypot hetical statutory or regulatory change is m ade at som e point in the future th at exempts the Colleg es and other individuals and organizations in a sim ilar position from the Mand ate, that hypothetical possibility does not negate the existence of the present justiciable controversy that arises from currently existing legal requirements.
The Mandate presents the Colleges with a dilemma: comply with the Mandate and violate the tenets of their religion or not comply with the Mandate and pay signific ant annual penalties. (Compl. at ¶¶ 102, 106). The pe nalties imposed for providing coverage that does not com ply with the Mandate are $100 per day per em ployee, 26 U.S.C § 4980D; t his amounts to roughly $85,000 per day of non-compliance for Biola University and $45,000 per day of non-compliance for Grace Schools, totaling over $47 million in combined penalties annually. The amount would be less, but still substantial, if the Colleges choos e to provide no insurance at all. In such case, the Colleges would be subject to annual fine s of $2,000 a year per full-tim e employee, not counting the first thirty. 26 U.S.C. § 4980H. Thus, since Biola University has over 850 full-time employees, it faces annual penalties of over $1.6 million. (Compl. at ¶¶ 66, 85). Grace Schools, with over 450 full-tim e employees, would be subject to annual penalties of over $800,000. (Compl. at ¶¶ 31, 85). Therefore, the Colleges are necessarily compelled to adjust their financial
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affairs now to prepare to pay si gnificant amounts to the federa l government on an annual basis, and will be unable to use that money for other purposes. (Compl. at ¶ 126). In addition to being compelled to presently prepare to p ay significant penalties, the Colleges suffer current harm in hampered employee recruitment efforts. (Compl. at ¶¶ 107–108).
Plaintiffs have nothing to gain through litig ation save maintaining the status quo, which, prior to the Mandate’s enactm ent, protected their righ t to practice their re ligion without being forced to pay for abortion-inducing drugs in viol ation of their religious beliefs. De fendants ask this court to discount the actual and imminent in juries alleged in the Complaint and dism iss the case based on a litigation position that has produced nothing but an illuso ry promise to consider changing the unconstitutional regulations at so me point. This propos al to possib ly consider changing the Mandate in som e undefined way in the future does not deprive this court of jurisdiction over the current regulation.
B. The Advanced Notice of Proposed Rulemaking Should Hold Only the Weight of an Illusory Promise and Litigation Posturing.
Defendants’ issuance of the Advanced Notice of Proposed Rulemaking (ANPRM) should be viewed as an illusory promise because Defendants were fully aware of the constitutional and statutory violations that would occur, yet pu blished the “Final Regu lation” without change. Furthermore, that this illusory prom ise was made merely as a litigation position is evidenced by the fact that Defendants published the ANPRM on March 16, 2012 only after litigation was filed challenging the Mandate and only days before thei r reply was due in anot her case challenging the Mandate.
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When the Mandate was first published in 2010,

13/ many religious non-profit

organizations submitted comments to Defendants expressing concern regarding the impact of the Mandate on the conscience rights of religious non-profit employers. 14/ Despite knowing of the

Mandate’s substantial burden on religious ex ercise after initial comments were subm itted,

Defendants promulgated the proposed final rule with no exception for religious non-profit employers such as the Colleges. 15/ Religious non-profit employe rs again provided comm ents concerning the Mand ate’s constitutional infirmities.16/ Yet, six m onths later, Defendants

persisted in publishing the Final Regulations, w ithout protecting religious non-profit employers’

conscience rights.

At the time the final rule was announced, Defe ndants stated explicitly that the Mandate

was a “final rule” and that all comm ents and “important concerns” regarding “religious liberty” had been taken into account. 17/ Defendants gave religious non-pr ofits such as th e Colleges an

13/ 75 Fed. Reg. 41,726 (July 19, 2010)

available at

http://www.healthcare.gov/center/regulations/prevention/regs.html. 14/ See, e.g., Comments from The Witherspoon Institute regarding the Interim Final Rule

for Group Health Plans and Health Insurance I ssuers Relating to Coverage of Preventative

Service (Sept. 28, 2010) (accessible via http ://www.regulations.gov); Comments from The

National Catholic Bioethics Center regarding the Interim Final Rule for Group Health Plans and

Health Insurance Issuers Rela ting to Coverage of Preven tative Service (Sept. 17, 2010)

(accessible via http ://www.regulations.gov); Comments from the Catholic Med ical Association

regarding the Interim Final Rule for Group Health Plans and Health Insurance Issuers Relating to

Coverage of Preventative Service (Sept. 17, 2010) (accessible via http://www.regulations.gov). 15/ 76 Fed. Reg. 46,621, 46,626 (Aug. 3, 2011) (codified in 45 C.F.R. § 147.130). 16/ E.g. Comments from Wheaton College Pres ident Philip G. Ryken, regarding Interim

Final Rules on Preventive

Services (Sept. 27, 2011)

available at

http://www.dol.gov/ebsa/pdf/1210-AB44a-13789.pdf. 17/ Press Release, HHS Press Office, A Statement by U.S. Department of Health and

Human Services Secretary K athleen Sebelius (Jan. 20, 2012),

available at

http://www.hhs.gov/news/press/2012pres/01/20120120a.html.

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ultimatum, giving them one year to comply with the new law: that is, o ne year to either v iolate their consciences, or start paying the penalties.18/
Defendants were aware of the Mandate’s con stitutional and statutory infirmities, yet published it as a final rule nonetheless. If Defe ndants did not m ean the rule to be final, they should not have published it as final. Because Defendants were aware of the burden o n religious non-profits’ constitutional rights for approxim ately one-and-a-half years and nonetheless published final rules without addressing thos e concerns, the Mandate’s history renders Defendants’ claim that they m ay remove the burden on the Colleges’ constitutional rights imposed by the Mandate as prom ulgated in February 2012 highly suspect. Indeed, as the court noted in Roman Catholic Archdiocese,
The earliest case challenging the Coverage Mandate was commenced over a year ago. The ANPRM was announced nearly ten m onths ago and entered in the Federal Register over eight months ago. In that tim e, the Departments have had ample opportunity to enact a m eaningful change to the Coverage Mandate. The fact that they have not further suggests the likelihood of injuries to plaintiffs. Roman Catholic Archdiocese, 2012 U.S. Dist. LEXIS 172695 at *50. Furthermore, despite a wareness of the Manda te’s infirmities, the ANPRM was only issued after litigation was started challenging the Ma ndate and only w eeks before Defendants’ reply to Plaintiff’s opposition brief was due in another case challenging the Mandate. See Docket for Belmont Abbey Coll. v. Sebelius , Civil Action No. 11-7989 (JEB), 2012 WL 2914417 (D.D.C. July 18, 2012); Certain Preventative Serv ices under the Affordable Care Act, 77 Fed. Reg. 16,501, 16,505 (Mar. 21, 2012). Any weight given to the illu sory promises of the ANPRM should be minimized by the clear evidence that Defendants have in tentionally failed to address
18/ Id.
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Plaintiffs’ concerns for two years. The ANPRM is merely a litigation position with no concrete
effect.
C. Even if the ANPRM i s a Good Faith Commitment to Consider Changes to the Mandate, it Does Not Actua lly Change or Even Promise to Change Anything, nor Does it Allevia te the Actual and Imminent Injuries C urrently Imposed on Plaintiffs.
Defendants’ claim that they will co nsider revising the Mandate in the f uture does not
alleviate the Colleges’ current necessity of preparing to comply with the final rule as published.
Despite defendants’ attempt to characterize the ANPRM as a binding promise not to enforce the Coverage Mandate, the f act is that the ANPRM does not preven t the Coverage Mandate, as it currently ex ists, from going into e ffect. It is not a change in policy; it m erely seeks input to allow the Depart ments to consider possible revisions to the Coverage Manda te. The Departments need not make any changes to the Coverage Mandate to accommodate religious groups at all.
Roman Catholic Archdiocese, 2012 U.S. Dist. LEXIS 17269 at *46–47. Just because Defendants
have issued the ANPRM does not m ean they will am end the Mandate by August 1, 2013, to
satisfy the constitutional and statutory concerns raised by the Colleges. Indeed, Defendants have
stated in the past th at “religious concerns h ave been taken into account” without seriously accommodating religious employers such as the Colleges. 19/ Should this court dism iss this case,
as Defendants seek, there is nothing to stop Defe ndants from waiting until right before August 1,
2013, the end of the safe harbor period, to announ ce they will not amend the Mandate to address
the Colleges’ constitutional and statutory concerns. Under Defe ndants’ approach, the Colleges
would not h ave the b enefit, as they would now if their cas es continue, of receiv ing a judicial
determination of their rights either to know whether 1) they will be subjected to the Mandate and
have to con tinue to pre pare for penalties during the safe harbor period, or 2) th ey will not b e

19/ Press Release, HHS Press Office, A Statement by U.S. Department of Health and

Human Services Secretary K athleen Sebelius (Jan. 20, 2012),

available at

http://www.hhs.gov/news/press/2012pres/01/20120120a.html.

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subjected to the Mandate and be able to budget accordingly. Rather , under Defendants’ approach, the Colleges would be in a state of limbo until about August 1, 2013, not knowing how to conduct their affairs with certainty. This unc ertainty and inability to operate effe ctively and efficiently is, itself, an injury suffici ent to establish Article III standing. See Abbott Labs., 387 U.S. at 152–53.
The standing and ripeness issues here are sim ilar to those present in the lawsuits f iled in 2010 that challenged the Affordab le Care Act’s individual mandate , which requires virtually all American citizens to purchase governm ent-approved health insurance from private com panies starting on January 1, 2014. The governm ent initially raised standing and ripeness defenses because the individual mandate would not go into effect until four years after the filing of the lawsuits and a lot could conceivably happen in that time period. Courts, however, rejected the government’s arguments because the cases presented mainly legal questions (as the instant action does), and plaintiffs were experiencing actual inju ry by having to prepare financially for the cost of health insurance if they co mplied with the individual mandate, or for the cost of the annual penalties (as the Colleges must) if they did not comply with the individual mandate. E.g., Mead v. Holder, 766 F. Supp. 2d 16, 23–28 (D.D.C. 2011), aff’d by Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011); Goudy-Bachman v. U.S. Dep’t of Health & Human Servs. , 764 F. Supp. 2d 684, 690–94 (M.D. Pa. 2011) (citin g additional cases); accord TMLC v. Obama , 651 F.3d 529, 535–39 (6th Cir. 2011), superseded in part by Nat’l Fed’n of Indep. Bus. v. Sebelius , 132 S. Ct. 2566 (2012) (noting that the Suprem e Court has perm itted lawsuits to go for ward where the complaints were filed roughly thre e to six years before the laws went into effect and that the
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D.C. Circuit has permitted a case to proceed where the law would not go into effect for thirtee n years).20/
Moreover, the present case is analogous to the situation in Riva v. Massachusetts, 61 F.3d 1003 (1st Cir. 1995), in which the First Circuit held that plaintiff Robert Keenan’s challenge to a state accidental disability retirement scheme was ripe. Keenan was n otified that a law could reduce his monthly accidental disa bility benefits when he turned sixty-five years old. Id. at 1006. Keenan joined a suit ch allenging the law despite the seven-year gap until his benefits would be reduced; as th e First Circuit phrased it, he “subscrib[ed] to the adage that an ounce of prevention is sometimes worth a pound of cure.” Id.
In discussing Abbott Labs, the First Circuit noted that the hardship prong entailed an analysis of whether “th e challenged action c reates a ‘d irect and immediate’ d ilemma for the parties” and whether “the sought-after declaration would be of practical a ssistance in setting the underlying controversy to rest.” Id. at 1009–10 (citations an d internal quotations omitted). The government argued that whether Keenan’s benef its would actually be reduced was speculative because he could die before age sixty-five, he might no longer be disabled at that age, or the state law could be amended over the next seven years. Id. at 1011. The First Circuit held that, despite these potential contingencies, Keenan’s injury was “highly probable,” and explained:
In all eve nts, a litigant seeking shelter behind a ripeness defense must demonstrate more than a theoretical po ssibility that harm may be averted . The demise of a party or th e repeal of a statute will always be possible in any case of delayed enforcement, yet it is well settled that a time delay, without more, will not render a claim of statutory invalidity unrip e if the applica tion of the statute is
20/ McConnell v. FEC, 540 U.S. 93, 224–26 (2003), is distinguishable because there is a key difference between a challenge to a provision th at might affect decisions that the pla intiff will make five years later (such as the decisions that Senator McConnell would m ake immediately before a fut ure election) and a challenge to a provision that has a direct impact on the plaintiff’s decision-making now (such as the Colleges’ curren t financial planning in this case).
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otherwise sufficiently probable. The de gree of contingency is an im portant barometer of ripeness in this respect. Id. (emphasis added; citations omitted). Additionally, the First Circuit stated that “ the most immediate harm to Keenan comes in the form of an inability prudently to arrange his fiscal affairs .” Id. at 1012 (em phasis added). Keenan could not prepare his fiscal affairs with certainty until the resolution of whether the law, which could reduce his m onthly accidental disability benefit, was valid. The First Circu it explained, “[w]e believe that this uncertainty and the con siderations of utility th at we have mentioned coalesce to show that Keenan is suf fering a sufficient present injury to satisfy the second prong of the Abbott Labs. paradigm.” Id. As in the above-mentioned cases, the Colleges have been, and continue to be, injured by the Mandate because th ey must rearrange their fi scal affairs now to prepare to pa y significant annual penalties, and their injury can be redre ssed by a favorable ruling from this court. A present injury of this nature is suf ficient to establish that the Colleges have standing and that their claims are ripe.
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CONCLUSION Amici curiae respectfully request that this Court deny Defendants’ motion to dismiss and

remedy Plaintiffs’ current and imminent injuries by granting an in junction against the

enforcement of the Mandate.

Respectfully submitted on this 7th day of December, 2012,

Jay Alan Sekulow* Jordan Sekulow* Stuart J. Roth* American Center for Law & Justice 201 Maryland Avenue, NE Washington, DC 20002 202-546-8890; Fax. 202-546-9309

/s/ Edward L. White III
Edward L. White III** Counsel of Record
American Center for Law & Justice 5068 Plymouth Road Ann Arbor, Michigan 48105 734-662-2984; Fax. 734-302-1758 ewhite@aclj.org

CeCe Heil* American Center for Law & Justice 1000 Regent University Drive Virginia Beach, Virginia 23464 757-226-2489; Fax. 757-226-2836

Francis J. Manion* Geoffrey R. Surtees* American Center for Law & Justice 6375 New Hope Road New Hope, Kentucky 40052 502-549-7020; Fax. 502-549-5252

** Admitted to N.D. Indiana Bar * Not admitted to N.D. Indiana Bar

Louis A. Isakoff* Regent University 977 Centerville Turnpike, SHB 202 Virginia Beach, Virginia 23463 757-226-2794; Fax. 757-226-2793 Isakoff@regent.edu

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CERTIFICATE OF COMPLIANCE The undersigned counsel certifies that this brief complies with the page limitation of N.D. Ind. L.R. 7-1(e)(1) (limiting briefs to 25 pages) because this brief is 17 pages long, excluding the parts of the brief exempted by N.D. Ind. L.R. 7-1(e)(1). Furthermore, this brief complies with the format requirements of N.D. Ind. L.R. 5-4(a).
/s/ Edward L. White III Edward L. White III
Counsel of Record Admitted to N.D. Indiana Bar American Center for Law & Justice 5068 Plymouth Road Ann Arbor, Michigan 48105 734-662-2984; Fax. 734-302-1758 ewhite@aclj.org
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CERTIFICATE OF SERVICE I certify that on December 7, 2012 I caused the foregoing

Amici Curiae Brie f to be

served electronically via the C ourt’s electronic filing system on the following parties who are

registered in the system:

Counsel for Plaintiffs:
Gregory S Baylor gbaylor@alliancedefendingfreedom.org
Matthew Scott Bowman mbowman@alliancedefendingfreedom.org
David A Cortman dcortman@alliancedefendingfreedom.org
Jerry D Mackey university.legalcounsel@biola.edu
Jane Dall Wilson jane.wilson@faegrebd.com

Counsel for Defendants:
Benjamin L Berwick Benjamin.L.Berwick@usdoj.gov

/s/ Edward L. White III Edward L. White III
Counsel of Record Admitted to N.D. Indiana Bar American Center for Law & Justice 5068 Plymouth Road Ann Arbor, Michigan 48105 734-662-2984; Fax. 734-302-1758 ewhite@aclj.org

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 case 3:12-cv-00459-JD-CAN document 54 filed 09/06/13 page 1 of 49

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

GRACE SCHOOLS and BIOLA UNIVERSITY, INC.
Plaintiffs,
v.
KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; THOMAS E. PEREZ, in his official capacity as Secretary of the United States Department of Labor; JACOB J. LEW, in his official capacity as Secretary of the United States Department of the Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; and UNITED STATES DEPARTMENT OF THE TREASURY,

) ) ) ) ) Case No. 3:12-cv-459 ) ) ) ) ) ) ) ) ) ) ) ) ) )

Defendants.

FIRST AMENDED COMPLAINT

Plaintiffs, Grace Schools (hereinafter “Grace College and Seminary,” “Grace College,” “the College,” or “Grace”) and Biola University, Inc. (hereinafter “Biola” or “the University”) (collectively, “the Schools”), by their attorneys, state as follows:

NATURE OF THE ACTION 1. This lawsuit challenges regulations issued by Defendants under the 2010 Patient Protection and Affordable Care Act that compel employee and student health insurance plans to provide free coverage of contraceptive services, including so-called “emergency contraceptives” that cause early abortions. 2. The Schools are Christ-centered institutions of higher learning. They believe that God has condemned the intentional destruction of innocent human life. The Schools hold,
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as a matter of religious conviction, that it would be sinful and immoral for them intentionally to participate in, pay for, facilitate, enable, or otherwise support access to abortion, which destroys human life. T hey hold that one of the prohibitions of the Ten Commandments (“thou shalt not murder”) precludes them from facilitating, assisting in, or enabling the use of drugs that can and do destroy very young human beings in the womb.
3. The Schools do not qualify for the extraordinarily narrow religious exemption from the regulations. That exemption protects only “churches, their integrated auxiliaries, and conventions or associations or churches” and “the exclusively religious activities of any religious order.”
4. For purely secular reasons, the government has elected not to impose the challenged regulations upon thousands of other organizations. Employers with “grandfathered” plans, small employers, and favored others are exempt from these rules.
5. Defendants have offered entities like the Schools a so-called “accommodation” of their religious beliefs and practices. However, the alleged accommodation fails. It still conscripts the Schools into the government’s scheme, forcing the Schools to obtain an insurer or third-party claims administrator and submit a form that specifically causes that insurer or third-party administrator to arrange payment for the objectionable drugs, so that such coverage will apply to the Schools’ own employees as a direct consequence of their employment with the Schools and of their participation in the health insurance benefits the Schools provide them.
6. Under the supposed accommodation, Defendants continue to treat entities like the Schools as second-class religious organizations, not entitled to the same religious freedom rights as substantially similar entities that qualify for the exemption. Defendants’ rationale for entirely exempting churches and integrated auxiliaries from the regulations – their employees are likely to share their religious convictions – applies equally to the Schools. Ye t, Defendants
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refuse to exempt them, offering only a flimsy, superficial, and utterly semantic “accommodation” that falls woefully short of addressing and resolving the substance of their concerns.
7. If Plaintiffs follow their religious convictions and decline to participate in the government’s scheme, they will face, among other injuries, enormous fines that will cripple their operations.
8. By unconscionably placing the Schools in this untenable position, Defendants have violated the Religious Freedom Restoration Act; the Free Exercise, Establishment and Free Speech Clauses of the First Amendment to the United States Constitution; the Due Process Clause of the Fifth Amendment; and the Administrative Procedure Act.
9. Plaintiffs therefore respectfully request that this Court vindicate their rights through declaratory and permanent injunction relief, among other remedies.
IDENTIFICATION OF PARTIES AND JURISDICTION 10. Plaintiff Grace Schools is a Christ-centered institution of higher learning located in Winona Lake, Indiana. I t is an Indiana not-for-profit corporation. It operates as, among other assumed names, Grace College, Grace Theological Seminary, and Grace College & Seminary. 11. Plaintiff Biola University, Inc., is a Christ-centered institution of higher learning located in La Mirada, California. It is a California not-for-profit religious corporation. 12. Defendants are appointed officials of the United States government and United States Executive Branch agencies responsible for issuing and enforcing the Mandate. 13. Defendant Kathleen Sebelius is the Secretary of the United States Department of Health and Human Services (HHS). In this capacity, she has responsibility for the operation and management of HHS. Sebelius is sued in her official capacity only.
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14. Defendant HHS is an executive agency of the United States government and is responsible for the promulgation, administration and enforcement of the Mandate.
15. Defendant Thomas E. Perez is the Secretary of the United States Department of Labor. In this capacity, he has responsibility for the operation and management of the Department of Labor. Perez is sued in his official capacity only.
16. Defendant Department of Labor is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
17. Defendant Jacob J. Lew is the Secretary of the Department of the Treasury. In this capacity, he has responsibility for the operation and management of the Department. Lew is sued in his official capacity only.
18. Defendant Department of Treasury is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
19. This action arises under the Constitution and laws of the United States. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1361, jurisdiction to render declaratory and injunctive relief under 28 U.S.C. §§ 2201 and 2202, 42 U.S.C. § 2000bb-1, 5 U.S.C. § 702, and Fed. R. Civ. P. 65, and to award reasonable attorney’s fees and costs under the Equal Access to Justice Act, 28 U.S.C. § 2412, and 42 U.S.C. § 1988.
20. Venue lies in this district pursuant to 28 U.S.C. § 1391(e). A substantial part of the events or omissions giving rise to the claim occurred in this district, and Grace Schools is located in this district.
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FACTUAL ALLEGATIONS I. Grace College and Seminary’s Religious Beliefs and Provision of Educational
Services in General 21. Grace College and Seminary was founded in 1937 under the leadership of Dr. Alva J. McClain, President. The College’s mission is to be “an evangelical Christian community of higher education which applies biblical values in strengthening character, sharpening competence, and preparing for service.” Grace Seminary is a learning community dedicated to teaching, training, and transforming the whole person for ministry in the local church and around the globe. Grace’s aspirational vision is to “be an exceptional learning community that transforms people to live their lives for God and others.” 22. Grace College and Seminary embraces these core values:
• “A relationship with the God of Scripture is foundational to all of life.” • “Exceptional learning experiences drive all educational programs.” • “Nurturing the transformation of life is deeply integrated in all institutional life.” • “Appreciating and valuing others as God does characterizes all relationships.” • “Doing good for others is the intended outcome of institutional life and service.” • “Managing institutional and constituents’ resources in a disciplined and biblical
way is essential to institutional life.” 23. At Grace, the students, administration, faculty, and staff aim together to make Christ preeminent in all things. Students learn this by living, studying, working, worshipping, and achieving academic success with other young people who share similar Christian ideals in a setting where the community lifestyle fosters devotion to serious academic inquiry, wholesome recreation and relaxation, and mature spiritual growth.
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24. Grace pursues its mission through biblically-based programs and services anchored in the historic Fellowship of Grace Brethren Churches. The curriculum is rooted in the liberal arts and sciences and is delivered through traditional and specialized programs.
25. Grace College and Seminary has a “Covenant of Faith” that “[a]ffirm[s] biblical truth and God’s grace.”
26. Grace College and Seminary is affiliated with the Fellowship of Grace Brethren Churches. The Fellowship of Grace Brethren Churches traces its denominational heritage back to 1708 and the pietistic movement in Germany following the Reformation.
27. Members of Grace’s Board of Trustees, which governs the College, must subscribe annually to the Covenant of Faith, which is consistent with the beliefs of the Fellowship of Grace Brethren Churches.
28. Grace College and Seminary draws its faculty, staff, and administration from among those who profess the Covenant of Faith of the College and Statement of Faith of the Fellowship of Grace Brethren Churches.
29. Although the College does require a profession of faith as a prerequisite for student admission, it does not require membership in the Grace Brethren denomination. Approximately 30 denominations are represented in its student body. All students are expected to adhere to the standards set forth in the Grace College Community and Lifestyle Statement.
30. The College is serving approximately 3,100 students in the fall 2013 semester. This number includes approximately 1,900 students in higher education degree programs and approximately 900 students in its basic education prison program and 300 students in its certificate education prison program, which are located in five Indiana prisons. The campus enrolls students from more than 20 countries.
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31. The College currently has approximately 457 employees. II. The Religious Beliefs of Grace College and Seminary Regarding Abortion
32. The Fellowship of Grace Brethren Churches believes that human life is worthy of protection and respect at all stages from the time of conception.
33. The Fellowship of Grace Brethren Churches believes that the sanctity of human life is established by creation (Gen. 1:26-27), social protection (Gen. 9:6) and redemption (John 3:16).
34. The College agrees with the Fellowship of Grace Brethren Churches’ religious views regarding abortion, believing that the procurement, participation in, facilitation of, or payment for abortion (including abortion-causing drugs like Plan B and ella) violates the Sixth Commandment and is inconsistent with the dignity conferred by God on creatures made in His image.
35. By “conception,” “pregnancy,” “abortion” and related concepts referenced herein regarding the sanctity of innocent human life and prohibitions on its destruction, Grace College understands such concepts to recognize and protect the lives of human beings from the moment of fertilization.
36. Through its Fall 2013 “Statement on Community Expectations for Faculty and Staff,” members of the Grace community “agree to uphold the standards of the community” set forth in the Statement.
37. The Statement reads in pertinent part as follows: Grace Schools values the worth and dignity of human life as expressed through the fruit of the Spirit. Having been made in the image of God, those who live and work at the institution express like faith and are expected to respect and uphold life-affirming practices that distinguish our faith community from other institutions of higher education, particularly for those who are vulnerable members of society. Consistent with the views of the Fellowship of Grace Brethren Churches, Grace Schools believes that human life is worthy of respect and protection at all stages from the time of
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conception. The sanctity of human life is established by c reation (Genesis 1:26-27), social protection (Genesis 9:6) and redemption (John 3:16). 38. In September 2009, crosses representing the 2,016 abortions (1982-2008) in Kosciusko County, Indiana, where Grace is located, were placed on the north and east lawns of Morgan Library on the Grace campus. The crosses were a reminder of the human beings, each created in the image and likeness of God (Genesis 1:26), whose lives were so tragically ended by abortionists. Crosses have been placed on the Grace campus every subsequent year as well. 39. Every two years, the sanctity of life is addressed by a speaker in corporate chapel. 40. In June 2007, Grace College hosted the Pro-Life Music Festival, which drew several thousand attendants to see a number of popular Christian bands. 41. Grace College students have participated in the Pro-Life Day of Silent Solidarity. 42. Grace College hosts the annual Right to Life Banquet at the Orthopedic Capital Center. At the Banquet, over 1,000 community members gather together to proclaim the message that all human life is precious, from conception to natural death.
III. Grace College’s Group Health Insurance Plans 43. To fulfill its religious commitments and duties in the Christ-centered educational
context, Grace promotes the spiritual and physical well-being and health of its employees and students. This includes the provision of generous health insurance to employees and their dependants and the facilitation of a student health plan.
44. Consistent with its religious commitments, Grace College provides a self-insured group plan for its employees, acting as its own insurer but working with a third-party claims administrator.
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45. Approximately 168 employees are enrolled in Grace’s group health plan. Including approximately 307 dependents, the total number of people enrolled in the group health plan is approximately 475.
46. Under the terms of Grace’s plan for its employees, coverage excludes abortifacient drugs like Plan B and ella.
47. The plan does, however, include a variety of contraceptive methods that Grace does not consider to be morally objectionable.
48. The next plan year for the College’s employee health insurance plan will start on January 1, 2014.
49. Effective June 2010, the College made changes to its employee health plan that caused the plan to lose its grandfathered status. Co-pays for specialty pharmacy products were increased from 20% with a maximum of $1000 per year to 50% with a maximum of $250 per prescription.
50. Grace requires all registered residential students to have health insurance. If a student does not submit proof of coverage to the College, it will enroll the student in a health insurance plan issued by Gallagher Koster. The College will bill enrolled students for the cost of the coverage. In the 2013-2014 school year, approximately 60 students are enrolled in the insurance plan facilitated by the College. The plan does not include coverage for the abortifacients and related counseling to which the College morally objects. IV. Biola University’s Religious Beliefs and Provision of Educational Services In
General 51. Biola University was founded in 1908 as the Bible Institute of Los Angeles. 52. The mission of Biola University is biblically-centered education, scholarship and service – equipping men and women in mind and character to impact the world for the Lord Jesus Christ.
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53. Biola’s vision is to be an exemplary Christian university characterized as a community of grace that promotes and inspires personal life transformation in Christ which illuminates the world with His light and truth. As a global center for Christian thought and an influential evangelical voice that addresses crucial cultural issues, Biola University aspires to lead, with confidence and compassion, an intellectual and spiritual renewal that advances the purpose of Christ.
54. Biola believes that there is truth – that it is knowable and revealed in God’s inerrant Word. Biola believes that Christians can accordingly live with unshakeable confidence and hope, knowing that the Bible and God’s truth have direct application to their lives, their work, their relationships, and the culture around them.
55. Biola believes that holding a biblical worldview is foundational to understanding life and truth. It believes that God has equipped it to uphold truth and sustain community at the University through Christ-centered and Spirit-led education, scholarship, and service that is grounded in Scripture and that challenges its community to seek and integrate biblical principles into its fields of study. Biola believes that all it does should be Christ-centered and based on the teachings of Jesus. It believes that Christ provided the best model for how to live and that following Him is a way of life that, when followed to its fullest expression, will impact how Christians live and the choices they make.
56. Biola believes that participating in a Christian community of grace is important in the life of the believer. It believes that the identity of Christians as children of the Triune God lies in their lives lived in and through community, holistic relationships, mutual interdependence upon the Indwelling Spirit and members of the Body and seeking the unity of the Spirit. Biola draws its faculty, staff, and students from among those who profess faith in Christ.
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57. Biola believes that through the renewing of the mind and care of the body it prepares its students to live within the culture in a loving and Christ-honoring way. Through a rigorous, Christ-centered and Spirit-led education, the University enables its students to grapple with and engage in the spiritual, intellectual, ethical and cultural issues of our time, their implications and application to everyday life.
58. Biola believes that through community and dependence upon the Spirit, character is sharpened and Christians grow in their ability to live their lives as the Lord Jesus Christ would. It believes that interactions with fellow Christians provide one of the essential means of character development in the life of the believer.
59. Biola believes that integrity and authenticity should be hallmarks of every believer. It believes their relationships should be models of transparency, truth-telling, and unwavering commitment to the example set by the Lord Jesus Christ.
60. Biola believes that we exist to serve God and His Great Commission in reaching the world for the Lord Jesus Christ. It believes that Christ-followers are His light to a dark world and that it is their duty and privilege to make disciples.
61. Biola believes that God uses the faculty, staff, students and alumni to accomplish His plans. It believes that, as servant leaders, each person who is part of Biola's community can make a difference in their families, churches, communities, and vocations for Christ's Kingdom.
62. The University believes that service is an act of worship to God. As followers of the Lord Jesus Christ, members of the Biola community desire to worship God by living in a way that is worthy of the calling they have received.
63. Biola believes that the Lord Jesus Christ intends His Church to be a multi-ethnic, multi-cultural, and multi-national body of believers. It believes that it has been called to
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respect, and when appropriate, reflect the diversity of God’s kingdom throughout the world. The University holds that believers have a responsibility to spread the Gospel through evangelism, missions and outreach.
64. Biola believes that it has been blessed with kingdom resources and desires to steward them in a God-honoring way. Its desire is to manage its time, money, and gifts and to care for the students, whose lives have been entrusted to it, in a way that models a commitment to excellence and a total-life attitude of stewardship. V. The Religious Beliefs of Biola University Regarding Abortion
65. Biola’s “Doctrinal Statement” declares that “[t]he Bible is clear in its teaching on the sanctity of life. Life begins at conception. We reject the destruction or termination of innocent human life through human intervention in any form after conception including, but not limited to, abortion, infanticide or euthanasia because it is unbiblical and contrary to God’s will. Life is precious and in God’s hands.”
66. The Biola University Employee Handbook, in a section entitled “Standard of Conduct,” states in part as follows: “Consistent with the example and command of Jesus Christ, we believe that life within a Christian community must be lived to the glory of God, with love for God and for our neighbors. Being indwelt by the Holy Spirit, we strive to walk by the Spirit, ‘crucifying the flesh with its passions and desires’ (Galatians 5:24). To this end, members of the Biola community are not to engage in activities that Scripture forbids. Such activities include . . . the destruction or termination of innocent human life through human intervention in any form after conception including, but not limited to, abortion, infanticide or euthanasia.”
67. Biola’s undergraduate Student Handbook provides in part as follows: “The University wants to assist those involved in unplanned pregnancy while at Biola to consider the
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options available to them within the Christian moral framework. These include marriage of the parents, single parenthood, or offering the child for adoption. Because the Bible is clear in its teaching on the sanctity of human life, life begins at conception; we abhor the destruction of innocent life through abortion on demand. Student Development stands ready to help those involved to cope effectively with the complexity of needs that a crisis pregnancy presents.” VI. Biola University’s Group Health Insurance Plans
68. To fulfill its religious commitments and duties in the Christ-centered educational context, Grace promotes the spiritual and physical well-being and health of its employees and students. This includes the provision of generous health insurance to employees and their dependants and the facilitation of a student health plan.
69. Health insurance is available to regular employees who work at least 30 hours per week, for at least ten months of the year.
70. Biola offers two medical insurance plans for its employees, one through Kaiser and the other through Blue Shield.
71. Biola has approximately 856 full-time, benefit-eligible employees. Approximately 1,835 individuals are covered under its two employee health insurance plans.
72. After the enactment of the Affordable Care Act, Biola made a number of changes to its employee health plans that deprived them of “grandfathered” status. Upon the renewal of the two employee plans effective April 1, 2010, Biola changed the methodology by which it supported the cost of employee health insurance. It moved from contributing the same number of dollars to the Anthem Blue Cross and Kaiser plans to contributing the same percentage of the total premium. Upon renewal of the two employee plans effective April 1, 2011, Biola increased HMO co-pays from $10 per office visit to $15 per office visit for both plans. It also at that time raised the prescription drug co-pays for the Blue Cross plan. Biola never conveyed
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to employees or dependent beneficiaries that its employee group health plans possessed grandfathered status.
73. Blue Shield replaced Anthem Blue Cross effective April 1, 2012. Prior to that date, the Anthem Blue Cross plan did cover all FDA-approved contraceptives, including ella and Plan B. The prior inclusion of abortion-inducing drugs like ella and Plan B was neither knowing nor intentional.
74. The Blue Shield plan does not cover abortion-inducing drugs such as ella and Plan B. The plan does provide coverage of other drugs characterized by the Food and Drug Administration as “contraceptives.”
75. Prior to April 1, 2012, the Kaiser plan covered all FDA-approved contraceptives, including ella and Plan B. The prior inclusion of abortion-inducing drugs like ella and Plan B was neither knowing nor intentional. Effective April 1, 2012, Biola eliminated coverage of any “contraceptives” from the Kaiser plan. Effective April 1, 2012, employees enrolled in the Kaiser plan receive coverage of non-abortifacient prescription contraceptive drugs through Script Care, a pharmacy benefits manager. Abortion-inducing drugs, such as ella and Plan B, are not covered. The plan does provide coverage of other drugs characterized by the Food and Drug Administration as “contraceptives.”
76. Biola facilitates health insurance for its students who are not otherwise covered by health insurance. The University requires its students to have health insurance coverage. It facilitates coverage through United Health Care. Students who enroll in this plan pay the premium to Biola and the University remits payment to the carrier on behalf of the students. Ella and Plan B are excluded from this plan.
VII. The ACA and Defendants’ Mandate Thereunder
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77. In March 2010, Congress passed, and President Obama signed, the Patient Protection and Affordable Care Act, Pub. L. No. 111-148 (March 23, 2010), and the Health Care and Education Reconciliation Act, Pub. L. No. 11-152 (March 30, 2010), together known as the “Affordable Care Act” (ACA).
78. The ACA regulates the national health insurance market by directly regulating “group health plans” and “health insurance issuers.”
79. One ACA provision requires that any “group health plan” or “health insurance issuer offering group or individual health insurance coverage” provide coverage for certain preventive care services. 42 U.S.C. § 300gg-13(a).
80. These services include screenings, medications, and counseling given an “A” or “B” rating by the United States Preventive Services Task Force; immunizations recommended by the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention; and “preventive care and screenings” specific to infants, children, adolescents, and women that are subsequently “provided for in comprehensive guidelines supported by the Health Resources and Services Administration,” an HHS sub-agency. 42 U.S.C. § 300gg-13(a)(1)-(4).
81. These services must be covered without “any cost sharing.” 42 U.S.C. § 300gg-13(a).
The Interim Final Rule 82. On July 19, 2010, HHS published an interim final rule regarding the ACA’s requirement that certain preventive services be covered without cost sharing. 75 Fed. Reg. 41726, 41728 (2010). 83. HHS issued the interim final rule without a prior notice of rulemaking or opportunity for public comment. Defendants determined for themselves that “it would be
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impracticable and contrary to the public interest to delay putting the provisions . . . in place until a full public notice and comment process was completed.” 75 Fed. Reg. at 41730.
84. Although Defendants suggested in the Interim Final Rule that they would solicit public comments after implementation, they stressed that “provisions of the Affordable Care Act protect significant rights” and therefore it was expedient that “participants, beneficiaries, insureds, plan sponsors, and issuers have certainty about their rights and responsibilities.” Id.
85. Defendants stated they would later “provide the public with an opportunity for comment, but without delaying the effective date of the regulations,” demonstrating their intent to impose the regulations regardless of the legal flaws or general opposition that might be manifest in public comments. Id.
86. In addition to reiterating the ACA’s preventive services coverage requirements, the Interim Final Rule provided further guidance concerning the Act’s restriction on cost sharing.
87. The Interim Final Rule makes clear that “cost sharing” refers to “out-of-pocket” expenses for plan participants and beneficiaries. 75 Fed. Reg. at 41730.
88. The Interim Final Rule acknowledges that, without cost sharing, expenses “previously paid out-of-pocket” would “now be covered by group health plans and issuers” and that those expenses would, in turn, result in “higher average premiums for all enrollees.” Id.; see also id. at 41737 (“Such a transfer of costs could be expected to lead to an increase in premiums.”)
89. In other words, the prohibition on cost-sharing was simply a way “to distribute the cost of preventive services more equitably across the broad insured population.” 75 Fed. Reg. at 41730.
90. After the Interim Final Rule was issued, numerous commenters warned against the potential conscience implications of requiring religious individuals and organizations to
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include certain kinds of services—specifically contraception, sterilization, and abortion services—in their health care plans.
91. HHS directed a private health policy organization, the Institute of Medicine (IOM), to make recommendations regarding which drugs, procedures, and services all health plans should cover as preventive care for women.
92. In developing its guidelines, IOM invited a select number of groups to make presentations on the preventive care that should be included in health plans by force of law. These were the Guttmacher Institute, the American Congress of Obstetricians and Gynecologists (ACOG), John Santelli, the National Women’s Law Center, National Women’s Health Network, Planned Parenthood Federation of America, and Sara Rosenbaum.
93. No religious groups or other groups that opposed government-mandated coverage of contraception, sterilization, abortion, and related education and counseling were among the invited presenters.
94. On July 19, 2011, the IOM published its preventive care guidelines for women, including a recommendation that preventive services include “[a]ll Food and Drug Administration approved contraceptive methods [and] sterilization procedures” and related “patient education and counseling for women with reproductive capacity.” Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps, at 102-10 and Recommendation 5.5 (July 19, 2011).
95. FDA-approved contraceptive methods include birth-control pills; prescription contraceptive devices such as IUDs; Plan B (also known as the “morning-after pill”) and its chemical cognates; ulipristal (also known as “ella” or the “week-after pill”); and other drugs, devices, and procedures.
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96. Some of these drugs and devices—including “emergency contraceptives” such as Plan B and ella and certain IUDs—are known abortifacients, in that they can cause the death of an embryo by preventing it from implanting in the wall of the uterus.
97. Indeed, the FDA’s own Birth Control Guide states that Plan B and its cognates, ella, and IUDs can work by “preventing attachment (implantation) to the womb (uterus).” FDA, Office of Women’s Health, Birth Control Guide at 16-18, available as Addendum to Brief of Appellants at 50, Hobby Lobby Stores Inc. v. Sebelius, No. 12-6294, ECF Doc. No. 010189999834 (10th Cir. filed Feb. 11, 2013).
98. The manufacturers of some of the drugs, methods, and devices in the category of “FDA-approved contraceptive methods” indicate that they can function to cause the demise of an early embryo.
99. The requirement for related “education and counseling” accompanying abortifacients, sterilization and contraception necessarily covers education and counseling given in favor of such items, even though it might also include other education and counseling. Moreover, it is inherent in a medical provider’s decision to prescribe one of these items that she is taking the position that use of the item is in the patient’s best interests, and therefore her education and counseling related to the item will be in favor of its proper usage.
100. On August 1, 2011, a mere 13 days after IOM published its recommendations, HRSA issued guidelines adopting them in full. See http://www.hrsa.gov/womensguidelines.
101. Insurance plans starting after August 1, 2012 were subject to the Mandate. 102. Any non-exempt employer providing a health insurance plan that omits any abortifacients, contraception, sterilization, or education and counseling for the same, is subject (because of the Mandate) to heavy fines approximating $100 per employee per day. Such employers are also vulnerable to lawsuits by the Secretary of Labor and by plan participants.
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103. A large employer entity cannot freely avoid the Mandate by simply refusing to provide health insurance to its employees, because the ACA imposes monetary penalties on entities that would so refuse.
104. The annual penalty for failing to provide health insurance coverage is $2000 times the number of the employer’s employees, minus 30.
The Religious Employer Exemption 105. On the very same day HRSA rubber-stamped the IOM’s recommendations, HHS promulgated an additional interim final rule regarding the preventive services mandate. 76 Fed. Reg. 46621 (published Aug. 3, 2011). 106. This Second Interim Final Rule granted HRSA “discretion to exempt certain religious employers from the Guidelines where contraceptive services are concerned.” 76 Fed. Reg. 46621, 46623 (emphasis added). The term “religious employer” was restrictively defined as one that (1) has as its purpose the “inculcation of religious values”; (2) “primarily employs persons who share the religious tenets of the organization”; (3) “serves primarily persons who share the religious tenets of the organization”; and (4) “is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 76 Fed. Reg. at 46626 (emphasis added). 107. The statutory citations in the fourth prong of this test refer to “churches, their integrated auxiliaries, and conventions or associations of churches” and the “exclusively religious activities of any religious order.” 26 U.S.C. § 6033(a)(3). 108. The “religious employer” exemption was thus extremely narrow, limited to churches, their integrated auxiliaries, and religious orders, but only if (1) their purpose is to inculcate faith and (2) they hire and serve primarily people of their own faith tradition.
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109. HRSA exercised its discretion to grant an exemption for religious employers via a footnote on its website listing the Women’s Preventive Services Guidelines. The footnote states that “guidelines concerning contraceptive methods and counseling described above do not apply to women who are participants or beneficiaries in group health plans sponsored by religious employers.” See http://www.hrsa.gov/womensguidelines.
110. Although religious organizations like the Schools share the same religious beliefs and concerns as objecting churches, their integrated auxiliaries, and objecting religious orders, HHS deliberately ignored the regulation’s impact on their religious liberty, stating that the exemption sought only “to provide for a religious accommodation that respects the unique relationship between a house of worship and its employees in ministerial positions.” 76 Fed. Reg. 46621, 46623.
111. Therefore, the vast majority of organizations with conscientious objections to providing contraceptive or abortifacient services were excluded from the “religious employer” exemption.
112. Like the original Interim Final Rule, the Second Interim Final Rule was made effective immediately, without prior notice or an opportunity for public comment.
113. Defendants acknowledged that “while a general notice of proposed rulemaking and an opportunity for public comment is generally required before promulgation of regulations,” they had “good cause” to conclude that public comment was “impracticable, unnecessary, or contrary to the public interest” in this instance. 76 Fed. Reg. at 46624.
114. Upon information and belief, after the Second Interim Final Rule was put into effect, over 100,000 comments were submitted opposing the narrow scope of the “religious employer” exemption and protesting the contraception mandate’s gross infringement on the rights of religious individuals and organizations.
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115. HHS did not take into account the concerns of religious organizations in the comments submitted before the Second Interim Rule was issued. HHS was unresponsive to numerous and well-grounded assertions that the Mandate violated statutory and constitutional protections of rights of conscience.
The Temporary Enforcement Safe Harbor 116. The public outcry for a broader religious employer exemption continued for many months. On January 20, 2012, HHS issued a press release acknowledging “the important concerns some have raised about religious liberty” and stating that religious objectors would be “provided an additional year . . . to comply with the new law.” See Jan. 20, 2012 Statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius, available at http://www.hhs.gov/news/press/2012pres/01/20120120a.html. 117. On February 10, 2012, HHS formally announced a “temporary enforcement safe harbor” for non-exempt nonprofit religious organizations that objected to covering contraceptive and abortifacient services. 118. HHS declared that it would not take any enforcement action against an eligible organization during the safe harbor period, which would extend until the first plan year beginning after August 1, 2013. 119. HHS also indicated it would develop and propose changes to the regulations in an effort to accommodate the religious liberty objections of non-exempt, nonprofit religious organizations following the expiration of the safe harbor. 120. Despite the safe harbor and HHS’s accompanying promises, on February 10, 2012, HHS announced a final rule “finalizing, without change,” the contraception and abortifacient mandate and narrow religious employer exemption. 77 Fed. Reg. 8725-01 (published Feb. 15, 2012).
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The Advance Notice of Proposed Rulemaking 121. On March 21, 2012, HHS issued an Advance Notice of Proposed Rulemaking (ANPRM), presenting “questions and ideas” to “help shape” a discussion of how to “maintain the provision of contraceptive coverage without cost sharing,” while accommodating the religious beliefs of non-exempt religious organizations. 77 Fed. Reg. 16501, 16503 (2012). 122. The ANPRM conceded that forcing religious organizations to “contract, arrange, or pay for” the objectionable contraceptive and abortifacient servicers would infringe their “religious liberty interests.” Id. (emphasis added). 123. The ANPRM proposed, in vague terms, that the “health insurance issuers” for objecting religious employers could be required to “assume the responsibility for the provision of contraceptive coverage without cost sharing.” Id. 124. For the first time, and contrary to the earlier definition of “cost sharing,” Defendants suggested in the ANPRM that insurers and third party administrators could be prohibited from passing along their costs to the objecting religious organizations via increased premiums. See id. 125. “[A]pproximately 200,000 comments” were submitted in response to the ANPRM, 78 Fed. Reg. 8456, 8459, largely restating previous comments that the government’s proposals would not resolve conscientious objections, because the objecting religious organizations, by providing a health care plan in the first instance, would still be coerced to arrange for and facilitate access to morally objectionable services. The Notice of Proposed Rulemaking 126. On February 1, 2013, HHS issued a Notice of Proposed Rulemaking (NPRM) purportedly addressing the comments submitted in response to the ANPRM. 78 Fed. Reg. 8456 (published Feb. 6, 2013).
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127. The NPRM proposed two changes to the then-existing regulations. 78 Fed. Reg. 8456, 8458-59.
128. First, it proposed revising the religious employer exemption by eliminating the requirements that religious employers have the purpose of inculcating religious values and primarily employ and serve only persons of their same faith. 78 Fed. Reg. at 8461.
129. Under the NPRM’s proposal, a “religious employer” would be one “that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue] Code.” 78 Fed. Reg. at 8461.
130. HHS emphasized, however, that this proposal “would not expand the universe of employer plans that would qualify for the exemption beyond that which was intended in the 2012 final rules.” 78 Fed. Reg. 8456, 8461.
131. In other words, religious organizations like the Schools that are not churches, integrated auxiliaries, or religious orders would continue to be denied the protection of the exemption.
132. Second, the NPRM followed up on HHS’s earlier-stated intention to “accommodate” non-exempt, nonprofit religious organizations by making them “designate” their insurers and third party administrators to provide plan participants and beneficiaries with free access to contraceptive and abortifacient drugs and services.
133. The proposed “accommodation” did not resolve the concerns of religious organizations like the Schools because it continued to force them to deliberately provide health insurance that would trigger access to abortion-inducing drugs and related education and counseling.
134. “[O]ver 400,000 comments” were submitted in response to the NPRM, 78 Fed. Reg. 39870, 39871, with religious organizations again overwhelmingly decrying the proposed
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“accommodation” as a gross violation of their religious liberty because it would conscript their health care plans as the main cog in the government’s scheme for expanding access to contraceptive and abortifacient services.
135. The Schools submitted comments on the NPRM, stating essentially the same objections stated in this complaint.
136. On April 8, 2013, the very day that the notice-and-comment period ended, Defendant Secretary Sebelius answered questions about the contraceptive and abortifacient services requirement in a presentation at Harvard University.
137. In her remarks, Secretary Sebelius stated: We have just completed the open comment period for the so-called accommodation, and by A ugust 1st of this year, every employer will be covered by the law with one exception. Churches and church dioceses as employers are exempted from this benefit. But Catholic hospitals, Catholic universities, other religious entities will be providing coverage to their employees starting August 1st. . . . [A]s of August 1st, 2013, every employee who doesn’t work directly for a church or a d iocese will be included in the benefit package.
See The Forum at Harvard School of Public Health, A Conversation with Kathleen Sebelius, U.S. Secretary of Health and Human Services, Apr. 8, 2013, available at http://theforum.sph.harvard.edu/events/conversation-kathleen-sebelius (Episode 9 at 2:25) (emphasis added).
138. Given the timing of these remarks, it is clear that Defendants gave no consideration to the comments submitted in response to the NPRM’s proposed “accommodation.”
139. Moreover, Secretary Sebelius’ remarks belie the utterly unpersuasive assertion that objecting employers are not “providing coverage for” morally objectionable items in the health insurance plans they provide employees.
The Final Mandate
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140. On June 28, 2013, Defendants issued a final rule (the “Final Mandate”), which ignores the objections repeatedly raised by religious organizations and others and continues to co-opt objecting employers into the government’s scheme of expanding free access to contraceptive and abortifacient services. 78 Fed. Reg. 39870 (2013). Defendants declared that the Final Mandate would be effective August 1, 2013, only one month after it was issued.
141. Under the Final Mandate, the discretionary “religious employer” exemption, which is still implemented via footnote on the HRSA website, see http://www.hrsa.gov/womensguidelines, remains limited to churches, integrated auxiliaries, and religious orders “organized and operate[d]” as nonprofit entities and “referred to in section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue] Code.” 78 Fed. Reg. at 39874.
142. Defendants attempt to justify the extraordinarily narrow religious exemption as follows: “The Departments believe that the simplified and clarified definition of religious employer continues to respect the religious interests of houses of worship and their integrated auxiliaries in a way that does not undermine the governmental interests furthered by the contraceptive coverage requirement. Houses of worship and their integrated auxiliaries that object to contraceptive coverage on religious grounds are more likely than other employers to employ people of the same faith who share the same objection, and who would therefore be less likely than other people to use contraceptive services even if such services were covered under their plan.” 78 Fed. Reg. at 39874.
143. All other organizations, including the Schools, are denied the exemption’s protection.
144. The Schools do not fall within the scope of this narrow religious exemption. They are not churches, the integrated auxiliaries of a church, or conventions or associations of churches, nor do they perform the exclusively religious activities of a religious order.
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145. The Final Mandate declares that the rules concerning contraceptive and abortifacient services will “apply to student health insurance coverage arranged by an eligible organization that is an institution of higher education in a manner comparable to that in which they apply to group health insurance coverage provided in connection with a group health plan established or maintained by an eligible organization that is an employer.” 78 Fed. Reg. at 39897.
146. The Final Mandate creates a separate “accommodation” for certain non-exempt religious organizations. 78 Fed. Reg. at 39874.
147. An organization is eligible for the accommodation if it (1) “[o]pposes providing coverage for some or all of the contraceptive services required”; (2) “is organized and operates as a nonprofit entity”; (3) “holds itself out as a religious organization”; and (4) “self-certifies that it satisfies the first three criteria.” 78 Fed. Reg. at 39874.
148. The Schools are eligible for the so-called accommodation. 149. The self-certification must be executed “prior to the beginning of the first plan year to which an accommodation is to apply.” 78 Fed. Reg. at 39875. 150. The Final Rule also extends the current Temporary Enforcement Safe Harbor through the end of 2013, only six months after the issuance of the Final Rule. 78 Fed. Reg. at 39889. 151. Thus, an eligible organization would need to execute the self-certification prior to its first plan year that begins on or after January 1, 2014, and deliver it to the organization’s insurer. If the organization has a self-insured plan, like Grace, it would deliver the executed self-certification to the plan’s third party administrator. 78 Fed. Reg. at 39875.
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152. If it elects to invoke the accommodation with respect to its employee plan, Grace would be required to execute the self-certification and deliver it to its plan’s third party administrator before January 1, 2014.
153. By delivering its self-certification to its third-party administrator, Grace would trigger the third-party administrator’s provision of or arrangement for payments for the morally objectionable abortifacients. 78 Fed. Reg. 39892-39893. These payments constitute coverage of the items to which Grace objects. See, e.g., id. at 39872 (“the regulations provide women with access to contraceptive coverage”), and receive treatment as coverage under consumer protection requirements of the Public Health Service Act and ERISA. Id. at 39876. This coverage will not be contained in any insurance policy separate from Grace’s plan. See id.
154. If it elects to invoke the accommodation with respect to its employee plan, Biola would be required to execute the self-certification and deliver it to its plan’s issuer before April 1, 2014.
155. By delivering its self-certification to its insurer, Biola would trigger the insurer’s obligation to make “separate payments for contraceptive services directly for plan participants and beneficiaries.” 78 Fed. Reg. at 39875-76. These payments constitute coverage of the items to which Biola objects. See, e.g., id. at 39872 (“the regulations provide women with access to contraceptive coverage”), and receive treatment as coverage under consumer protection requirements of the Public Health Service Act and ERISA. Id. at 39876. This coverage will not be contained in any insurance policy separate from Biola’s plan. See id.
156. By issuing their self-certifications, the Schools would be identifying their participating employees and students to the insurer or third-party administrator for the distinct purpose of enabling the government’s scheme to facilitate free access to abortifacient services.
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157. The insurer’s obligation to make direct payments for abortifacient services would continue only “for so long as the participant or beneficiary remains enrolled in the plan.” 78 Fed. Reg. at 39876.
158. Therefore, Biola would have to coordinate with its insurer whenever it added or removed employees and beneficiaries from its healthcare plan and, as a direct and unavoidable result, from the abortifacient services payment scheme.
159. Biola’s insurer is required to notify plan participants and beneficiaries of the abortifacient payment benefit “contemporaneous with (to the extent possible) but separate from any application materials distributed in connection with enrollment” in a group health plan. 78 Fed. Reg. at 39876.
160. This would also require Biola to coordinate the notices with its insurer. 161. Biola’s insurer would be required to provide the abortifacient benefits “in a manner consistent” with the provision of other covered services. 78 Fed. Reg. at 39876-77. 162. Thus, any payment or coverage disputes presumably would be resolved under the terms of the Biola’s existing plan documents. 163. Thus, even under the accommodation, the Schools and every other non-exempt objecting religious organization would continue to play a central role in facilitating free access to abortifacient services. 164. Defendants state that they “continue to believe, and have evidence to support,” that providing payments for contraceptive services will be “cost neutral for issuers,” because “[s]everal studies have estimated that the costs of providing contraceptive coverage are balanced by cost savings from lower pregnancy-related costs and from improvements in women’s health.” 78 Fed. Reg. at 39877.
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165. On information and belief, the studies Defendants rely upon to support this claim are severely flawed.
166. Nevertheless, even if the payments, over time, eventually resulted in cost savings in other areas, it is undisputed that it would cost money at the outset to make the payments. See, e.g., 78 Fed. Reg. at 39877-78 (addressing ways insurers can cover up-front costs).
167. Moreover, if the cost savings that allegedly will arise make insuring an employer’s employees cheaper, the savings would have to be passed on to employers through reduced premiums, not retained by insurance issuers.
168. HHS suggests that, to maintain cost neutrality, issuers may simply ignore this fact and “set the premium for an eligible organization’s large group policy as if no payments for contraceptive services had been provided to plan participants.” 78 Fed. Reg. 39877.
169. This encourages issuers to artificially inflate the eligible organization’s premiums. 170. Under this methodology—assuming it is even legal—the eligible organization would still bear the cost of the required payments for contraceptive and abortifacient services in violation of its conscience, as if the accommodation had never been made. 171. Defendants have suggested that “[a]nother option” would be to “treat the cost of payments for contraceptive services . . . as an administrative cost that is spread across the issuer’s entire risk pool, excluding plans established or maintained by eligible organizations.” 78 Fed. Reg. at 39878. 172. There is no legal authority for forcing third parties to pay for services provided to the employees of eligible organizations under the accommodation. 173. Furthermore, under the Affordable Care Act, Defendants lack authority in the first place to coerce insurers to make separate payments for contraceptive and abortifacient services for an eligible organization’s plan participants and beneficiaries.
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174. Thus, the accommodation fails to protect objecting religious organizations for lack of statutory authority.
175. For all these reasons, the accommodation does nothing to relieve non-exempt religious organizations with insured plans from being co-opted as the central cog in the government’s scheme to force the free provision of contraceptive and abortifacient services even when the organizations object to facilitating those services.
176. In sum, the accommodation is nothing more than a shell game that attempts to disguise the religious organization’s role as the central cog in the government’s scheme for expanding access to contraceptive and abortifacient services.
177. Despite the accommodation’s convoluted machinations, a religious organization’s decision to offer health insurance (which the ACA’s employer mandate requires) and its self-certification continue to serve as the sole triggers for creating access to free abortifacient services to its employees and plan beneficiaries from the same insurer they are paying for their insurance plan.
178. The Schools cannot participate in or facilitate the government’s scheme in this manner without violating their religious convictions.
The Final Mandate and Plaintiffs’ Health Insurance Plans 179. The plan year for Grace’s next employee health plan begins on January 1, 2014; Biola’s begins on April 1, 2014. As a result, the Schools now – or will soon – face a choice. They can transgress their religious commitments by including abortifacients in their plan or by triggering their insurance issuer or third-party administrator to provide the exact same services by providing the self-certification. Or they can transgress their religious duty to provide for the well-being of their employees and their families by dropping their employee health insurance
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plan altogether in order to avoid being complicit in the provision of abortifacients, thereby incurring crippling annual fines.
180. Although the government has recently announced that it will postpone implementing the annual fine of $2000 per employee (minus 30) for organizations that drop their insurance altogether, the postponement is only for one year, until 2015. This postponement does not delay the daily fines under 26 U.S.C. § 4980D or lawsuits under 29 U.S.C. § 1132.
181. The plan year for Grace’s next student plan begins on July 25, 2014; Biola’s begins on August 1, 2014. As a result, the Schools will face a choice in the period leading up to those dates. They can transgress their religious commitments by including abortifacients in their plans or by triggering their insurance issuers to provide the exact same services by providing their self-certifications. Or they can transgress their religious duty to provide for the well-being of their students by dropping their student health insurance plans altogether in order to avoid being complicit in the provision of abortifacients.
182. The Schools’ religious convictions forbid them from participating in any way in the government’s scheme to provide free access to abortifacient services through their health care plans.
183. Dropping their insurance plans would place the Schools at a severe competitive disadvantage in their efforts to recruit and retain employees and students.
184. The Final Mandate forces the Schools to deliberately provide health insurance that would facilitate free access to emergency contraceptives, including Plan B and ella, regardless of the ability of insured persons to obtain these drugs from other sources.
185. The Final Mandate forces the Schools to facilitate government-dictated education and counseling concerning abortion that directly conflicts with their religious beliefs and teachings.
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186. Facilitating this government-dictated speech directly undermines the express speech and messages concerning the sanctity of life that the Schools seek to convey.
187. The Mandate therefore imposes a variety of substantial burdens on the religious beliefs and exercise of each of the Plaintiffs.
The Governmental Interests Allegedly Underlying the Mandate and the Availability of Other Means of Pursuing Those Interests 188. Coercing Plaintiffs to facilitate access to morally objectionable contraceptives and abortifacients advances no compelling governmental interest. 189. The required drugs, devices, and related services to which Plaintiffs object are already widely available at non-prohibitive costs. 190. Upon information and belief, Plan B is widely available for between $30 and $65. Upon information and belief, ella is widely available for approximately $55. 191. There are numerous alternative mechanisms through which the government could provide access to the objectionable drugs and services without conscripting objecting organizations and their insurance plans in violation of their religious beliefs. 192. For example, it could pay for the objectionable services through its existing network of family planning services funded under Title X, through direct government payments, or through tax deductions, refunds, or credits. 193. The government could simply exempt all conscientiously objecting organizations, just as it has already exempted the small subset of nonprofit religious employers that are referred to in Section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. 194. In one form or another, the government also provides exemptions for grandfathered plans, 42 U.S.C. § 18011; 75 Fed. Reg. 41,726, 41,731 (2010), small employers with fewer than 50 employees, 26 U.S.C. § 4980H(c)(2)(A), and certain religious denominations, 26 U.S.C. § 5000A(d)(2)(a)(i) and (ii) (individual mandate does not apply to members of
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“recognized religious sect or division” that conscientiously objects to acceptance of public or private insurance funds). 26 U.S.C. § 5000A(d)(2)(b)(ii) (individual mandate does not apply to members of “health care sharing ministry” that meets certain criteria).
195. These broad exemptions further demonstrate the Schools could be exempted from the Mandate without measurably undermining any sufficiently important governmental interest allegedly served by the Mandate.
196. Employers who do not make modifications to their insurance plans that deprive the plans of “grandfathered” status may continue to use those grandfathered plans indefinitely.
197. Indeed, HHS itself has predicted that a majority of large employers, employing more than 50 million Americans, will continue to use grandfathered plans until at least 2014, and that a third of medium-sized employers with between 50 and 100 employees may do likewise. 75 Fed. Reg. 34538 (June 17, 2010); see also http://web.archive.org/web/ 20130620171510/http://www.healthcare.gov/news/factsheets/2010/06/keeping-the-health-plan-y ou-have-grandfathered.html (archived version); https://www.cms.gov/CCIIO/Resources/Files/ Factsheet_grandfather_amendment.html (noting that amendment to regulations “will result in a small increase in the number of plans retaining their grandfathered status relative to the estimates made in the grandfathering regulation”).
198. In the ACA Congress chose to impose a variety of requirements on grandfathered health plans, but decided that this Mandate was not important enough to impose to the benefit of tens of millions of women. Congress did not even think contraception was important enough to codify as part of this Mandate—as far as Congress is concerned, the Mandate need not include contraception at all.
199. The Administration’s recent postponement of the employer mandate (and its attendant penalties) also belies any claim that a compelling interest justifies coercing Plaintiffs to
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comply with the Final mandate, as employers may now simply decide not to provide their employee health plans without incurring fines under 26 U.S.C. § 4980H, at least for one additional year.
200. These broad exemptions also demonstrate that the Final Mandate is not a general law entitled to some measure of judicial deference.
201. The available evidence does not support Defendants’ contention that making contraceptives, abortifacients, and related counseling available without cost sharing decreases the rate of unintended pregnancy or the adverse impacts on health and equality that allegedly flow from the unintended nature of a pregnancy.
202. Defendants were willing to exempt various secular organizations and postpone the employer mandate, while adamantly refusing to provide anything but the narrowest of exemptions for religious organizations.
203. The Final Mandate was promulgated by government officials, and supported by non-governmental organizations, who strongly oppose religious teachings and beliefs regarding marriage, family, and life.
204. Defendant Sebelius, for example, has long been a staunch supporter of abortion rights and a vocal critic of religious teachings and beliefs regarding abortion and contraception.
205. On October 5, 2011, six days after the comment period for the original interim final rule ended, Defendant Sebelius gave a speech at a fundraiser for NARAL Pro-Choice America. She told the assembled crowd that “we are in a war.”
206. She further criticized individuals and entities whose beliefs differed from those held by her and the others at the fundraiser, stating: “Wouldn’t you think that people who want to reduce the number of abortions would champion the cause of widely available, widely affordable contraceptive services? Not so much.”
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207. On July 16, 2013, Secretary Sebelius further compared opponents of the Affordable Care Act generally to “people who opposed civil rights legislation in the 1960s,” stating that upholding the Act requires the same action as was shown “in the fight against lynching and the fight for desegregation.” See http://www.hhs.gov/secretary/about/speeches/ sp20130716.html.
208. Consequently, on information and belief, the Schools allege that the purpose of the Final Mandate, including the restrictively narrow scope of the religious employers exemption, is to discriminate against religious organizations that oppose contraception and abortion.
FIRST CLAIM FOR RELIEF Violation of the Religious Freedom Restoration Act
42 U.S.C. § 2000bb 209. Plaintiffs reallege all matters set forth in paragraphs 1-208 and incorporate them herein. 210. The Schools’ sincerely held religious beliefs prohibit them from providing, paying for, making accessible, or facilitating coverage or payments for abortion, abortifacients, embryo-harming pharmaceuticals, and related education and counseling, or providing or facilitating a plan that causes access to the same through an insurance company, third-party administrator, or any other third party. 211. When the Schools comply with the Ten Commandments’ prohibition on murder and with other sincerely held religious beliefs, they exercise religion within the meaning of the Religious Freedom Restoration Act. 212. The Mandate imposes a substantial burden on the Schools’ religious exercise and coerces them to change or violate their religious beliefs.
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213. The Mandate chills the Schools’ religious exercise within the meaning of RFRA and pressures them to abandon their religious convictions and religious practices.
214. The Mandate exposes the Schools to substantial fines and/or financial burdens for their religious exercise.
215. The Mandate exposes the Schools to substantial competitive disadvantages because of uncertainties about their health insurance benefits caused by the Mandate.
216. The Mandate furthers no compelling governmental interest and is not narrowly tailored to any compelling governmental interest.
217. The Mandate is not the least restrictive means of furthering Defendants’ stated interests.
218. The Mandate and Defendants’ threatened enforcement thereof violates the Schools’ rights protected by the Religious Freedom Restoration Act.
219. Absent injunctive and declaratory relief against application and enforcement of the Mandate, the Schools will suffer irreparable harm.
SECOND CLAIM FOR RELIEF Violation of Free Exercise Clause of the First Amendment
to the United States Constitution 220. Plaintiffs reallege all matters set forth in paragraphs 1-208 and incorporate them herein. 221. The Schools’ sincerely held religious beliefs prohibit them from providing, paying for, making accessible, or otherwise facilitating coverage or payments for abortion, abortifacients, embryo-harming pharmaceuticals, and related education and counseling, or providing or facilitating a plan that causes access to the same through an insurance company or third-party administrator.
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222. When the Schools comply with the Ten Commandments’ prohibition on murder and with other sincerely held religious beliefs, they exercise religion within the meaning of the Free Exercise Clause.
223. The Mandate is not neutral and is not generally applicable. 224. Defendants have created categorical exemptions and individualized exemptions to the Mandate. 225. The Mandate furthers no compelling governmental interest. 226. The Mandate is not the least restrictive means of furthering Defendants’ stated interests. 227. The Mandate coerces the Schools to change or violate their religious beliefs. 228. The Mandate chills the Schools’ religious exercise. 229. The Mandate exposes the Schools to substantial fines and/or financial burdens for their religious exercise. 230. The Mandate exposes the Schools to substantial competitive disadvantages, in that it makes it unclear what health benefits they can offer to their employees and what health insurance coverage they can facilitate for their students. 231. The Mandate substantially burdens the Schools’ religious exercise. 232. The Mandate is not narrowly tailored to any compelling governmental interest. 233. Despite being informed in detail of the religious objections of the Schools and thousands of others, Defendants designed the Mandate and the religious exemption thereto to target the Schools and others like them, thereby making it impossible for the Schools and other similar religious organizations to comply with their religious beliefs without suffering crippling punishments.
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234. Defendants promulgated both the Mandate and the religious exemption in order to suppress the religious exercise of the Schools and others.
235. By design, Defendants framed the Mandate to apply to some religious organizations but not others, resulting in discrimination among religions.
236. The Mandate violates the Schools’ rights secured to them by the Free Exercise Clause of the First Amendment to the United States Constitution.
THIRD CLAIM FOR RELIEF Violation of the Establishment Clause of the First Amendment to the United States Constitution 237. Plaintiffs reallege all matters set forth in paragraphs 1-208 and incorporate them herein. 238. The First Amendment’s Establishment Clause, together with the Free Exercise Clause, requires the equal treatment of all religious faiths and institutions without discrimination or preference. I t prohibits the unjustified differential treatment of similarly situated religious organizations. 239. The Mandate’s narrow exemption for “religious employers” discriminates among religions on the basis of religious views, religious status, or incidental institutional structure or affiliation. 240. The Mandate adopts a particular theological view of what is morally acceptable complicity in the facilitation of abortifacient coverage and payments, and imposes it upon those, like the Schools, who conscientiously object, and who must either conform their consciences or suffer penalty. 241. The Establishment Clause, together with the Free Exercise Clause, also protects the freedom of religious organizations to decide for themselves, free from governmental interference, matters of internal governance as well as those of doctrine and practice.
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242. Under the First Amendment, government may not interfere with a religious organization’s internal decisions concerning its religious structure, leadership, practice, discipline, membership, or doctrine.
243. Under the First Amendment, government may not interfere with a religious organization’s internal decisions if that interference would affect the faith and mission of the organization itself.
244. The Schools made an internal decision, dictated by their Christian faith, that the health plans they make available to employees and students may not include, subsidize, provide, pay for, or in any way facilitate access to abortifacient drugs, devices, or related services.
245. The Mandate interferes with the Schools’ internal decisions concerning their structure and mission by requiring them to subsidize, provide access to, and facilitate practices that directly conflict with their Christian beliefs.
246. The Schools also made internal decisions to not be structured as integrated auxiliaries to a church, denomination, or association of churches.
247. The Mandate’s narrow religious exemption unconstitutionally punishes the Schools for this structural choice, and pressures them to become integrated auxiliaries of a church or denomination in order to gain the protection of the exemption.
248. Because the Final Mandate interferes with the Schools’ internal decision making in a manner that affects their faith and mission, it violates the Establishment Clause (and Free Exercise Clause) of the First Amendment.
249. Absent injunctive and declaratory relief against the Mandate, the Schools will suffer irreparable harm.
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FOURTH CLAIM FOR RELIEF Violation of the Free Speech Clause of the First Amendment
to the United States Constitution 250. Plaintiffs reallege all matters set forth in paragraphs 1-208 and incorporate them herein. 251. Defendants’ requirement to provide insurance coverage for education and counseling regarding contraception causing abortion forces the Schools to speak in a manner contrary to their religious beliefs. 252. The Schools teach that abortion violates God’s law and that any participation in the unjustified taking of an innocent human life contradicts their religious beliefs and convictions. 253. The Mandate compels the Schools to facilitate expression and activities that the Schools teach are inconsistent with their religious beliefs, expression, and practices. 254. The Mandate compels the Schools to facilitate access to government-dictated education and counseling related to abortion. 255. Defendants thus violate the Schools’ rights to be free from compelled speech, a right secured to them by the Free Speech Clause of the First Amendment. 256. The Mandate’s compelled speech requirement does not advance a compelling governmental interest. 257. Defendants have no narrowly tailored compelling interest to justify this compelled speech. 258. The Mandate violates the Schools’ rights secured to them by the Free Speech Clause of the First Amendment to the United States Constitution. 259. Absent declaratory and injunctive relief, the Schools will suffer irreparable harm.
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FIFTH CLAIM FOR RELIEF Violation of the Due Process Clause of the Fifth Amendment to the United States Constitution 260. Plaintiffs reallege all matters set forth in paragraphs 1-208 and incorporate them herein. 261. Because the Mandate sweepingly infringes upon religious exercise and speech rights that are constitutionally protected, it is unconstitutionally vague in violation of the due process rights of the Schools and other parties not before the Court. 262. Persons of common intelligence must necessarily guess at the meaning, scope, and application of the Mandate and its exemptions. 263. This Mandate lends itself to discriminatory enforcement by government officials in an arbitrary and capricious manner, and lawsuits by private persons, based on the government’s vague standard. 264. The Mandate vests Defendants with unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations that possess religious beliefs and/or that meet the government’s definition of “religious employers.” 265. This Mandate violates the Schools’ due process rights under the Fifth Amendment to the United States Constitution.
SIXTH CLAIM FOR RELIEF Violation of the First Amendment to the United States Constitution
Freedom of Expressive Association 266. Plaintiffs reallege all matters set forth in paragraphs 1-208 and incorporate them herein. 267. The Schools teach that abortion violates God’s law and that any participation in the unjustified taking of an innocent human life contradicts their religious beliefs and convictions.
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268. The Mandate compels the Schools to facilitate expression and activities that the Schools teach are inconsistent with their religious beliefs, expression, and practices.
269. Defendants’ actions thus violate the Schools’ right of expressive association protected by the Free Speech Clause of the First Amendment to the United States Constitution.
SEVENTH CLAIM FOR RELIEF Violation of the Administrative Procedure Act 270. Plaintiffs reallege all matters set forth in paragraphs 1-208 and incorporate them herein. 271. Because they did not give proper notice and an opportunity for public comment, Defendants did not take into account the full implications of the regulations by completing a meaningful consideration of the relevant matter presented. 272. Defendants did not consider or respond to the voluminous comments they received in opposition to the interim final rule. 273. Defendants issued its regulations on an interim final basis and only asked for comments thereafter. Yet Defendants signaled from regulatory text of its interim rules that it had no intention of considering the requests by religious organizations to provide them with exemptions, or to hold the effective date of its rules after it received and considered all the comments submitted. 274. Thus, Defendants imposed its rules without the required “open-mindedness” that agencies must have when notice-and-comment occurs. Defendants also did not have good cause to impose the rules without prior notice and comment. 275. Moreover, Defendants issued the Final Mandate with respect to Grace on June 28, 2013, and declared it effective August 1, 2013, with a “safe harbor” that imposed the Final Mandate on Grace’s employee plan year beginning January 1, 2014.
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276. The ACA provides, and Defendants admit, that any rule issued requiring coverage of preventive services under 42 U.S.C. § 300gg-13 cannot go into effect until at least a year after the rule is finalized. Under these provisions, the Final Mandate cannot be effective on Grace until its employee health insurance plan year starting after the summer of 2013, namely, Grace’s plan year starting January 1, 2015.
277. Thus the Final Rule, by its effective date of August 1, 2013 and its impact on Grace College on January 1, 2014, violates the ACA and Defendants’ regulations against imposing within a year after they are finalized, and/or violates the APA’s requirement that agencies be open-minded to comments before finalizing their rules.
278. Therefore, Defendants have violated the notice and comment requirements of 5 U.S.C. §§ 553 (b) and (c), have taken agency action not in accordance with procedures required by law, and the Schools are entitled to relief pursuant to 5 U.S.C. § 706(2)(D).
279. In promulgating the Mandate, Defendants failed to consider the constitutional and statutory implications of the mandate on the Schools and similar organizations.
280. Defendants’ explanation (and lack thereof) for its decision not to exempt the Schools and similar religious organizations from the Mandate runs counter to the evidence submitted by religious organizations during the comment period.
281. Thus, Defendants’ issuance of the Mandate was arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because the Mandate fails to consider the full extent of its implications and it does not take into consideration the evidence against it.
282. As set forth above, the Mandate violates RFRA and the First and Fifth Amendments.
283. The Mandate is also contrary to the provision of the ACA that states that “nothing in this title”—i.e., title I of the Act, which includes the provision dealing with “preventive
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services”—“shall be construed to require a qualified health plan to provide coverage of [abortion] services . . . as part of its essential health benefits for any plan year.” Section 1303(b)(1)(A).
284. The Mandate is also contrary to the provisions of the Weldon Amendment of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act of 2009, Public Law 110 329, Div. A, Sec. 101, 122 Stat. 3574, 3575 (Sept. 30, 2008), which provides that “[n]one of the funds made available in this Act [making appropriations for Defendants Department of Labor and Health and Human Services] may be made available to a Federal agency or program . . . if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.”
285. The Mandate also violates the provisions of the Church Amendment, 42 U.S.C. § 300a-7(d), which provides that “No individual shall be required to perform or assist in the performance of any part of a health service program or research activity funded in whole or in part under a program administered by the Secretary of Health and Human Services if his performance or assistance in the performance of such part of such program or activity would be contrary to his religious beliefs or moral convictions.”
286. The Mandate is contrary to existing law and is in violation of the APA under 5 U.S.C. § 706(2)(A).
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request the following relief: A. That this Court enter a judgment declaring the Mandate and its application to Plaintiffs and their insurance issuers or third-party administrators to be a violation of their rights protected by RFRA, the Free Exercise, Establishment, and Free Speech Clauses of the First
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Amendment to the United States Constitution, the Due Process Clause of the Fifth Amendment
to the United States Constitution, and the Administrative Procedure Act;
B. That this Court enter a permanent injunction prohibiting Defendants from
continuing to apply the Mandate to the Plaintiffs and their insurance issuers or third-party
administrators or in a way that violates the legally protected rights of any person, and prohibiting
Defendants from continuing to illegally discriminate against Plaintiffs by requiring them to
provide health insurance coverage or access to separate payments for contraceptives,
abortifacients, and related counseling to their employees and students;
C. That this Court award Plaintiffs court costs and reasonable attorney’s fees, as
provided by the Equal Access to Justice Act and RFRA (as provided in 42 U.S.C. § 1988); and
D. That this Court grant such other and further relief as to which the Plaintiffs may
be entitled.
Respectfully submitted this 6th day of September, 2013.
/s Gregory S. Baylor
Gregory S. Baylor (Texas Bar No. 01941500) Matthew S. Bowman (DC Bar No. 993261) ALLIANCE DEFENDING FREEDOM 801 G Street, NW, Suite 509 Washington, DC 20001 (202) 393-8690 (202) 347-3622 (facsimile) gbaylor@alliancedefendingfreedom.org mbowman@alliancedefendingfreedom.org
David A. Cortman (Georgia Bar No. 188810) ALLIANCE DEFENDING FREEDOM 1000 Hurricane Shoals Road, NE, Suite D-1100 Lawrenceville, GA 30043 (770) 339-0774 (770) 339-6744 (facsimile) dcortman@alliancedefendingfreedom.org
Kevin H. Theriot (Kansas Bar No. 21565) 45

case 3:12-cv-00459-JD-CAN document 54 filed 09/06/13 page 46 of 49
ALLIANCE DEFENDING FREEDOM 15192 Rosewood Leawood, KS 66224 (913) 685-8000 (913) 685-8001 (facsimile) ktheriot@alliancedefendingfreedom.org Jerry Mackey (California Bar No.90416) 13800 Biola Avenue La Mirada, CA 90639 (562) 903-4777 (562) 903-4748 (facsimile) university.legalcounsel@biola.edu Jane Dall Wilson (Atty No. 24142-71A) FAEGRE BAKER DANIELS LLP 300 North Meridian Street, Suite 2700 Indianapolis, IN 46204 (317) 237-0300 (317) 237-1000 (facsimile) jane.wilson@faegrebd.com Attorneys for Plaintiffs
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case 3:12-cv-00459-JD-CAN document 54 filed 09/06/13 page 49 of 49 CERTIFICATE OF SERVICE
I hereby certify that on September 6, 2013 I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to all counsel of record.
s/ Gregory S. Baylor
49

 
 case 3:12-cv-00459-JD-CAN document 55 filed 09/06/13 page 1 of 5

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

GRACE SCHOOLS and BIOLA UNIVERSITY, INC.
Plaintiffs,
v.
KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; THOMAS E. PEREZ, in his official capacity as Secretary of the United States Department of Labor; JACOB J. LEW, in his official capacity as Secretary of the United States Department of the Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; and UNITED STATES DEPARTMENT OF THE TREASURY,

) ) ) ) ) Case No. 3:12-cv-459 ) ) ) ) ) ) ) ) ) ) ) ) ) )

Defendants.

MOTION FOR PRELIMINARY INJUNCTION

Pursuant to Fed. R. Civ. P. 65 and L.R. 7.1, Plaintiffs Grace Schools and Biola University

(“the Schools”), by and through counsel, hereby move this Court to enter a preliminary

injunction, and state as follows:

1. The Schools request a preliminary injunction against Defendants, ordering them

not to apply or enforce their regulatory mandate requiring the Schools to facilitate, contrary to

their sincerely held religious beliefs, the provision of and/or payment for abortifacient drugs and

devices and related counseling, through their employee and student health insurance plans.

2. In support of this motion, the Schools submit an accompanying memorandum of

law.

case 3:12-cv-00459-JD-CAN document 55 filed 09/06/13 page 2 of 5
3. The Schools respectfully request a decision on this motion prior to December 1, 2013, especially if the Court has not by that time ruled on the cross-motions for summary judgment that the parties will likely file. A ruling by that date would provide Grace Schools sufficient time to plan and prepare in advance of the January 1, 2014 beginning of its next employee health plan year.
4. The beginning of Grace’s next employee plan year is January 1, 2014. The beginning of Biola’s next employee plan year is April 1, 2014. If injunctive relief is not afforded in advance of those dates, the Schools will be forced to choose between (a) following their consciences and suffering crippling financial penalties; and (b) facilitating the destruction of human life in violation of the Sixth Commandment, thereby transgressing their sincerely held religious beliefs. Terminating their employee health insurance plans in order to protect their consciences will have a devastating effect on the Schools’ employees, faculty and staff recruitment and retention, and operations more generally. The next Grace student plan year begins on July 25, 2014. The next Biola student plan year begins on August 1, 2014. If injunctive relief is not afforded in advance of those dates, the Schools will likely be forced to drop their student health insurance plans, in violation of their religious duty to provide for the well-being of their students.
5. As set forth in the accompanying memorandum of law, the Schools are likely to succeed on the merits of their claims, particularly under the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (RFRA). The U.S. Court of Appeals for the Seventh Circuit has twice enjoined application of the HHS Mandate, in both cases relying upon RFRA. See Grote v. Sebelius, 708 F.3d 850 (7th Cir. 2013); Korte v. Sebelius, 2012 WL 6757353 (7th Cir. 2013). Requiring the Schools to facilitate the provision of abortifacients substantially burdens their
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ability to exercise their religious beliefs in the sanctity, dignity, and value of human life and their
religious obligation to avoid violating the Ten Commandments. No compelling interest justifies
the Mandate’s burden on the Schools’ religious exercise, and other, less restrictive means of
pursuing its stated objectives are available to Defendants.
6. Without injunctive relief, the Schools, many of their students and employees, and
the public will be irreparably harmed. Defendants will suffer no measurable injury if the
injunction is granted, and thus the balancing of harms plainly favors the Schools.
7. As factual support for this motion, the Schools rest upon the Verified First
Amended Complaint filed September 6, 2013.
8. Plaintiffs’ counsel has conferred with Defendants’ counsel concerning this
motion, and the motion is opposed.
9. The Schools request oral argument on this motion.
Respectfully submitted this 6th day of September, 2013.
s/ Gregory S. Baylor___________________
Gregory S. Baylor (Texas Bar No. 01941500) Matthew S. Bowman (DC Bar No. 993261) ALLIANCE DEFENDING FREEDOM 801 G Street, NW, Suite 509 Washington, DC 20001 (202) 393-8690 (202) 347-3622 (facsimile) gbaylor@alliancedefendingfreedom.org mbowman@alliancedefendingfreedom.org
David A. Cortman (Georgia Bar No. 188810) ALLIANCE DEFENDING FREEDOM 1000 Hurricane Shoals Road, NE, Suite D-1100 Lawrenceville, GA 30043 (770) 339-0774 (770) 339-6744 (facsimile) dcortman@alliancedefendingfreedom.org
3

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Kevin H. Theriot (Kansas Bar No. 21565) ALLIANCE DEFENDING FREEDOM 15192 Rosewood Leawood, KS 66224 (913) 685-8000 (913) 685-8001 (facsimile) ktheriot@alliancedefendingfreedom.org Jerry Mackey (California Bar No.90416) 13800 Biola Avenue La Mirada, CA 90639 (562) 903-4777 (562) 903-4748 (facsimile) university.legalcounsel@biola.edu Jane Dall Wilson (Atty No. 24142-71A) FAEGRE BAKER DANIELS LLP 300 North Meridian Street, Suite 2700 Indianapolis, IN 46204 (317) 237-0300 (317) 237-1000 (facsimile) jane.wilson@faegrebd.com Attorneys for Plaintiffs
4

case 3:12-cv-00459-JD-CAN document 55 filed 09/06/13 page 5 of 5 CERTIFICATE OF SERVICE
I hereby certify that on September 6, 2013, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to all counsel of record.
s/ Gregory S. Baylor
5

 
 case 3:12-cv-00459-JD-CAN document 56 filed 09/06/13 page 1 of 20

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

GRACE SCHOOLS and BIOLA UNIVERSITY, INC.
Plaintiffs,
v.
KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; THOMAS E. PEREZ, in his official capacity as Secretary of the United States Department of Labor; JACOB J. LEW, in his official capacity as Secretary of the United States Department of the Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; and UNITED STATES DEPARTMENT OF THE TREASURY,

) ) ) ) ) Case No. 3:12-cv-459 ) ) ) ) ) ) ) ) ) ) ) ) ) )

Defendants.

MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

case 3:12-cv-00459-JD-CAN document 56 filed 09/06/13 page 2 of 20
TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................................................... ii INTRODUCTION ...........................................................................................................................1 BACKGROUND .............................................................................................................................1 ARGUMENT ...................................................................................................................................3 I. THE SCHOOLS ARE LIKELY TO SUCCEED ON THE MERITS .................................4
A. The Mandate Substantially Burdens the Schools’ Exercise of Religion. ................5 1. “Exercise of religion” ..................................................................................6 2. “Substantial burden” ....................................................................................6
B. The Mandate Does Not Further a Compelling Governmental Interest....................8 C. The Mandate Is Not Narrowly Tailored...................................................................9 II. A PRELIMINARY INJUNCTION IS NEEDED TO PREVENT IRREPARABLE HARM................................................................................................................................11 III. A PRELIMINARY INJUNCTION WOULD IMPOSE NO HARM ON THE GOVERNMENT................................................................................................................12 IV. A PRELIMINARY INJUNCTION WOULD SERVE THE PUBLIC INTEREST ..........13 CONCLUSION ..............................................................................................................................13 CERTIFICATE OF SERVICE ......................................................................................................15
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TABLE OF AUTHORITIES
CASES
Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6 (7th Cir. 1992) ...................................................................................................3
Beckwith Elec. Co. v. Sebelius, No. 8:13-cv-0648-T-17MAP, 2013 WL 3297498 (M.D. Fla. June 25, 2013) .............10, 13
Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729 (2011) ........................................................................................................9
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).............................................................................................................8
Cutter v. Wilkinson, 544 U.S. 709 (2005).............................................................................................................6
Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011) ...............................................................................................3
Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411 (2013) .......................................................................................................10
Geneva Coll. v. Sebelius, No. 2:12-cv-00207, 2013 WL 838238 (W.D. Pa. Mar. 6, 2013) .........................................9
Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S. of Am., Inc., 549 F.3d 1079 (7th Cir. 2008) .............................................................................................3
Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418 (2006)...................................................................................................4, 6, 8, 11
Grayson v. Schuler, 666 F.3d 450 (7th Cir. 2012) ...............................................................................................5
Grote v. Sebelius, 708 F.3d 850 (7th Cir. 2013) ...............................................................................6, 9, 10, 12
Henderson v. Kennedy, 253 F.3d 12 (D.C. Cir. 2001) ...............................................................................................6
Hobby Lobby Stores, Inc. v. Sebelius, No. 12-6294, 2013 WL 3216103 (10th Cir. June 27, 2013) ........................................4, 7, 9
Kaemmerling v. Lappin, 553 F.3d 669 (D.C. Cir. 2008) .........................................................................................4, 9
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Korte v. Sebelius, 2012 WL 6757353 (7th Cir. 2012) ............................................................................6, 9, 12
Mills v. District of Columbia, 571 F.3d 1304 (D.C. Cir. 2009) .........................................................................................11
Monaghan v. Sebelius, No. 12-15488, 2013 WL 1014026 (E.D. Mich. Mar. 14, 2013) .........................................10
Mylan Pharms. Inc. v. Shalala, 81 F. Supp. 2d 30 (D.D.C. 2000) .......................................................................................13
Newland v. Sebelius, 881 F. Supp. 2d 1287 (D. Colo. 2012).......................................................................8, 9, 12
Patrick v. LeFevre, 745 F.2d 153 (2d Cir. 1984).................................................................................................5
Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707 (1981).........................................................................................................5, 6
Tyndale House Publishers, Inc. v. Sebelius, No. 12-1635, 2012 WL 5817323 (D.D.C. Nov. 16, 2012) ........................................8, 9, 11
United States v. Seeger, 380 U.S. 163 (1965).............................................................................................................5
Wisconsin v. Yoder, 406 U.S. 205 (1972).....................................................................................................5, 6, 8
Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005) .............................................................................................10
STATUTES 26 U.S.C. § 4980D ...........................................................................................................................1 26 U.S.C. § 4980H ...........................................................................................................................1 42 U.S.C. § 300gg-13 ........................................................................................................................... 1 42 U.S.C. § 2000bb-1 ..................................................................................................................4, 9 42 U.S.C. § 2000bb-2 ......................................................................................................................5 42 U.S.C. § 2000cc-5 .......................................................................................................................5
iii

case 3:12-cv-00459-JD-CAN document 56 filed 09/06/13 page 5 of 20 OTHER AUTHORITIES 78 Fed. Reg. 39,870 (July 2, 2013) ................................................................................................. 1, 2 78 Fed. Reg. 8456 (Feb. 6, 2013) ....................................................................................................1 75 Fed. Reg. 41,726 (July 19, 2010)................................................................................................9 26 C.F.R. § 54.9815-2713A(a)-(c)...................................................................................................2 29 C.F.R. § 2590.715-2713A(d) ......................................................................................................2 45 C.F.R. § 147.131(c)(2)(i)(B) .......................................................................................................2 Hall v. Sebelius,
No. 13-cv-00295 (D. Minn. Apr. 2, 2013) (Dkt. # 11) ......................................................12 Mot. to Stay, Sharpe Holdings, Inc. v. U.S. Dep’t of Health & Human Servs.,
No. 2:12-cv-00092, (E.D. Mo. Mar. 11, 2013) (Dkt. # 41) ...............................................12 Sioux Chief Mfg. Co. v. Sebelius,
No. 4:13-cv-00036, (W.D. Mo. Feb. 28, 2013) (Dkt. # 9).................................................12
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INTRODUCTION Plaintiffs Grace Schools (“Grace”) and Biola University (“Biola”) seek preliminary injunction relief against a series of regulations (the “Mandate”) that force them to violate their religious beliefs. The Government has finalized the Mandate and indicated that enforcement will begin on January 1, 2014. See 78 Fed. Reg. 39,870 (July 2, 2013). The Mandate continues to require religious organizations, including the Schools, to provide, pay for, and/or facilitate access to abortion-inducing products, and related counseling, in a manner that is directly contrary to their religious beliefs.
BACKGROUND The Government promulgated the Mandate pursuant to its authority to require employer health plans to include coverage for women’s “preventive care and screenings.” 42 U.S.C. § 300gg-13(a)(4). By defining the phrase “preventive care” to include all “FDA-approved contraception,” the Mandate requires employer and student health plans to cover abortioninducing products, contraception, sterilization, and related counseling.1 Failure to provide such coverage exposes employers to fines of $100 a day per affected beneficiary. See 26 U.S.C.§ 4980D(b). Dropping their employee health plans altogether, moreover, subjects employers to substantial penalties of approximately $2,000 per employee. Id. § 4980H(a), (c)(1). The Mandate contains an extremely narrow “religious employer” exemption that is limited to churches, their integrated auxiliaries, denominations, and religious orders. 78 Fed. Reg. at 39,874 (citing 78 Fed. Reg. 8456, 8461 (Feb. 6, 2013)). The exemption does not protect the Schools. Defendants state that the exemption “does not undermine the governmental interests furthered by the contraceptive coverage requirement.” Id. They explain that “[h]ouses
1 See Women’s Preventive Services: Required Health Plan Coverage Guidelines, http://www hrsa.gov/ womensguidelines (last visited Sep. 5, 2013). The category of mandatory FDA-approved contraceptives includes the morning-after pill (Plan B) and Ulipristal (HRP 2000 or Ella), which can induce abortions.
1

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of worship and their integrated auxiliaries that object to contraceptive coverage on religious grounds are more likely than other employers to employ people of the same faith who share the same objection, and who would therefore be less likely than other people to use contraceptive services even if such services were covered under their plan.” Id. The Schools “employ people of the same faith who share the same objection,”2 yet they are denied the exemption.
The Final Rule continues to infringe on the Schools’ free exercise of religion. The vaunted “accommodation” is nothing more than an accounting gimmick whereby, as before, the Schools’ health insurance plans serve as the conduit by which “free” contraception is delivered to their employees and students. Eligible religious organizations (like the Schools) must provide a “self-certification” to their insurance issuer or (for self-insureds) to their third- party administrator, objecting to coverage for some or all FDA-approved contraceptives. That very self-certification, however, has the perverse effect of requiring the Schools’ own insurance issuer or third-party administrator to provide or arrange “payments for contraceptive services” for their employees and students. See 78 Fed. Reg. at 39,892 (codified at 26 C.F.R. § 54.9815-2713A(a)(c)). The mandated “payments” last only as long as the employees remain on the Schools’ health plans.3 And for self-insured entities (like Grace), the “self-certification actually “designat[es] . . . the third party administrator(s) as plan administrator and claims administrator for contraceptive benefits.” 78 Fed. Reg. at 39,879 (emphasis added). In short, under the original version of the Mandate and the Final Rule, the end result is the same: a nonexempt religious organization’s decision to offer a group health plan results in the provision of “free” abortion-inducing products
2 First Amended Complaint ¶¶ 28, 36-37, 56, 66-67. 3 See 29 C.F.R. § 2590.715-2713A(d) (for self-insured employers, the third-party administrator “will provide or arrange separate payments for contraceptive services . . . for so long as [employees] are enrolled in [their] group health plan”); 45 C.F.R. § 147.131(c)(2)(i)(B) (for employers offering insured plans, the issuer must “[p]rovide separate payments for any contraceptive services . . . for plan participants and beneficiaries for so long as they remain enrolled in the plan”).
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and related counseling to its employees and students in a manner directly contrary to the Schools’ religious beliefs.
Needless to say, this shell game does not address the Schools’ fundamental religious objection to improperly facilitating access to the objectionable products and services. This should come as no surprise to the Government, for the Schools and like-minded religious objectors repeatedly informed Defendants that the so-called “accommodation” (as set forth in the NPRM) would not relieve the burden on the Schools’ religious beliefs.4 Despite its representations that it was making a good-faith effort to address the religious objections of the Schools and like-minded organizations, the Government finalized the NPRM’s proposal without any material change. Consequently, the Schools are coerced, through threats of crippling fines and other pressure, into acting directly contrary to their sincerely held religious beliefs.
ARGUMENT Parties seeking preliminary injunctions must establish that they have “(1) no adequate remedy at law and will suffer irreparable harm if a preliminary injunction is denied and (2) some likelihood of success on the merits.” Ezell v. City of Chicago, 651 F.3d 684, 694 (7th Cir. 2011). Once these threshold requirements are met, the court balances each party’s likelihood of success against the potential harms. Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S. of Am., Inc., 549 F.3d 1079, 1100 (7th Cir. 2008). The more the balance of the equities tips in the movant’s favor, the lighter the burden of demonstrating that it will ultimately prevail. Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6, 12 (7th Cir. 1992). Here, assessment of the merits and the equities points unequivocally toward granting the injunction. Accordingly, this Court should preliminarily enjoin application of the Mandate to the Schools.
4 See First Amended Complaint ¶132.
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I. THE SCHOOLS ARE LIKELY TO SUCCEED ON THE MERITS.
Under the Religious Freedom Restoration Act (“RFRA”), the Federal Government is prohibited from “substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability,” unless it “demonstrates that application of the burden to the person is (1) in furtherance of a compelling governmental interest; and (2) the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1; Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418, 423 (2006). Here, the Mandate cannot possibly survive scrutiny under RFRA.5
A. The Mandate Substantially Burdens the Schools’ Exercise of Religion. Under RFRA, courts must first assess whether the challenged law imposes a “substantial[] burden” on the plaintiff’s sincere “exercise of religion.” 42 U.S.C. § 2000bb-1(a). This initial inquiry requires courts to (1) identify the particular exercise of religion at issue and then (2) assess whether the law substantially burdens that religious practice. See, e.g., Hobby Lobby Stores, Inc. v. Sebelius, No. 12-6294, 2013 WL 3216103, at *20 (10th Cir. June 27, 2013) (en banc) (stating that the court must (1) “identify the religious belief in this case,” (2) “determine whether this belief is sincere,” and (3) “turn to the question of whether the government places substantial pressure on the religious believer”); Kaemmerling v. Lappin, 553 F.3d 669, 678 (D.C. Cir. 2008) (distinguishing between the exercise of religion and the burden on that religious exercise). Here, the Mandate imposes a substantial burden on the Schools’ religious exercise by forcing them to do precisely what their religion forbids: facilitate access to abortion-inducing products and related counseling.
5 The Mandate also violates the Free Speech, Free Exercise, and Establishment Clauses of the First Amendment, the Due Process Clause of the Fifth Amendment, the Administrative Procedure Act, and various statutory prohibitions on compelled support for abortion and interference with student health plans. Because the RFRA claim is adequate to afford complete relief at this stage of the proceedings, these other arguments are not set forth in greater detail herein.
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1. “Exercise of religion” RFRA defines “exercise of religion” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. §§ 2000bb-2(4), 2000cc5(7)(A). Whether an act or practice is rooted in religious belief, and thus entitled to protection, does not “turn upon a judicial perception of the particular belief or practice in question.” Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707, 714 (1981). Instead, the Court must accept the Schools’ description of their beliefs and practices, regardless of whether the Court, or the Government, finds them “acceptable, logical, consistent, or comprehensible.” Id. at 714–15. “Courts,” as the Supreme Court has put it, “are not arbiters of scriptural interpretation.” Id. at 716. In keeping with the deference owed to private claims of religious belief, the judicial role is limited to “determining ‘whether the beliefs professed by [the plaintiff] are sincerely held and whether they are, in his own scheme of things, religious.’” Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir. 1984) (quoting United States v. Seeger, 380 U.S. 163, 185 (1965)); Grayson v. Schuler, 666 F.3d 450, 453-54 (7th Cir. 2012). By screening claims for sincerity, and allowing the Government to impose burdens that are truly necessary to serve a compelling interest, courts can apply RFRA to grant bona fide religious exemptions without “allowing every person to make his own standards on matters of conduct in which society as a whole has important interests.” Wisconsin v. Yoder, 406 U.S. 205, 216 (1972). The Supreme Court has thus repeatedly reaffirmed “the feasibility of case-by-case consideration of religious exemptions to generally applicable rules,” which can be “‘applied in an appropriately balanced way’ to specific claims for exemptions as they ar[i]se.” O Centro, 546 U.S. at 436 (quoting Cutter v. Wilkinson, 544 U.S. 709, 722 (2005)).
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Here, there can be no doubt that the Schools’ refusal to facilitate access to abortioninducing products, contraception, sterilization, and related counseling is a protected exercise of religion under RFRA. See Korte v. Sebelius, 2012 WL 6757353, at *3 (7th Cir. 2012) (holding that for-profit company exercises religion when it excludes morally objectionable items from its employee health plan); Grote v. Sebelius, 708 F.3d 850, 854 (7th Cir. 2013) (same). They invoke RFRA to vindicate the principle that the Government may not force them to take actions that violate their religious conscience. In short, by requiring the Schools to serve as the conduit by which FDA-approved abortifacients are delivered to their employees and students, the Mandate is a clear-cut effort to “force[] them to engage in conduct that their religion forbids.” Henderson v. Kennedy, 253 F.3d 12, 16 (D.C. Cir. 2001). And “the question here is not whether the reasonable observer would consider the plaintiffs complicit in an immoral act, but rather how the plaintiffs themselves measure their degree of complicity.” Hobby Lobby, at *22 (footnote omitted).
2. “Substantial burden” Once the Schools’ refusal to facilitate access to FDA-approved abortifacients is identified as a protected religious exercise, the “substantial burden” analysis is straightforward. As the Supreme Court has made clear, a federal law “substantially burdens” an exercise of religion if it compels one “to perform acts undeniably at odds with fundamental tenets of [one’s] religious beliefs,” Yoder, 406 U.S. at 218, or “put[s] substantial pressure on an adherent to modify his behavior and violate his beliefs.” Thomas, 450 U.S. at 716–18. In Yoder, for example, the Court found that a substantial burden was imposed by a $5 penalty imposed on an Amish family for refusing to follow a compulsory secondary-education law. In Thomas, the Court similarly held
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that the denial of unemployment compensation substantially burdened the pacifist convictions of a Jehovah’s Witness who refused to work at a factory manufacturing tank turrets.
Here, refusal to comply with the Mandate will subject the Schools to potentially fatal fines of $100 per day per affected beneficiary. See 26 U.S.C. § 4980D(b). If the Schools cease providing employee health insurance altogether, they will be subject to an annual fine of $2,000 per full-time employee after the first thirty employees. See 26 U.S.C. § 4980H(a), (c)(1). Such costs and penalties clearly impose the type of pressure that qualifies as a substantial burden under RFRA—far outweighing, for example, the $5 fine that was found to be a substantial burden in Yoder. In the face of such pressure, the Tenth Circuit recently held that a for-profit organization challenging the Mandate was likely to succeed on the merits of its RFRA claim, emphasizing that the Mandate imposed a substantial burden on religious exercise by “demand[ing],” on pain of onerous penalties, “that [plaintiffs] enable access to contraceptives that [they] deem morally problematic.” Hobby Lobby, 2013 WL 3216103, at *21. The same is true here. See also Korte at *3-*4; Grote at 854-55.
It is no answer to claim that the Schools, unlike the Hobby Lobby plaintiffs, may be eligible for the Government’s so-called accommodation, because that “accommodation” does nothing to resolve the conflict with Schools’ religious beliefs. For purposes of this Court’s analysis, what matters is whether the Government is coercing entities to take actions that violate their sincere religious beliefs. Hobby Lobby at *19 (“Our only task is to determine whether the claimant’s belief is sincere, and if so, whether the government has applied substantial pressure on the claimant to violate that belief.”). The fact remains that the accommodation compels the Schools, through their health insurance plans, to serve as the conduit through which objectionable products and services are provided to their employees and students, in violation of
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their sincerely held religious beliefs. These sincere religious beliefs are entitled to no less protection than the nearly identical sincere religious beliefs at issue in Hobby Lobby.
B. The Mandate Does Not Further a Compelling Governmental Interest. Under RFRA, the Government must “demonstrate that the compelling interest test is satisfied through application of the challenged law [to] the particular claimant whose sincere exercise of religion is being substantially burdened.” O Centro, 546 U.S. at 430–31. “[B]roadly formulated” or “sweeping” interests are inadequate. Id. at 431; Yoder, 406 U.S. at 221. Rather, the Government must show with “particularity how [even] admittedly strong interest[s]” “would be adversely affected by granting an exemption.” Yoder, 406 U.S. at 236; see also O Centro, 546 U.S. at 431. The Government, therefore, must show a specific compelling interest in dragooning “the particular claimant[s] whose sincere exercise of religion is being substantially burdened” into serving as the instruments by which its purported goals are advanced. Id. at 43031; Tyndale House Publishers, Inc. v. Sebelius, No. 12-1635, 2012 WL 5817323, at *15 (D.D.C. Nov. 16, 2012) (same). This, it cannot begin to do. At the most basic level, “a law cannot be regarded as protecting an interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547 (1993) (internal citation omitted); see also O Centro, 546 U.S. at 433; Newland v. Sebelius, 881 F. Supp. 2d 1287, 129798 (D. Colo. 2012). Here, the Government cannot claim an interest of the “highest order” because the Mandate already exempts millions of employees—through a combination of “grandfathering” provisions, the narrow exemption for “religious employers,” and the enforcement exceptions for small employers. As other courts have found, “the interest here cannot be compelling because the contraceptive-coverage requirement presently does not apply
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to tens of millions of people.” Hobby Lobby, 2013 WL 3216103, at *23; Newland, 881 F. Supp. 2d at 1298; Geneva Coll. v. Sebelius, No. 2:12-cv-00207, 2013 WL 838238, at *25 (W.D. Pa. Mar. 6, 2013); Tyndale, 2012 WL 5817323, at *18.
The Government’s interest also cannot be compelling because, at best, the Mandate would only “[f]ill” a “modest gap” in contraceptive coverage. Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2741 (2011). The Government acknowledges that contraceptives are widely available at free and reduced cost and are also covered by “over 85 percent of employersponsored health insurance plans.” 75 Fed. Reg. 41,726, 41,732 (July 19, 2010). In such circumstances, the Government cannot claim to have “identif[ied] an actual problem in need of solving.” Brown, 131 S. Ct. at 2738 (internal quotation marks and citation omitted). Simply put, the Government “does not have a compelling interest in each marginal percentage point by which its goals are advanced.” Id. at 2741 n.9. See also Korte at *4 (enjoining Mandate under RFRA where government invoked only “generalized interest[s]” in public health and equality); Grote, 708 F.3d at 855 (enjoining Mandate where government failed to justify substantial burden on religious exercise by demonstrating compelling state interest).
C. The Mandate Is Not Narrowly Tailored. Under RFRA, the Government must also show that the regulation “is the least restrictive means of furthering [a] compelling governmental interest.” 42 U.S.C. § 2000bb-1(b). Under that test, “[a] statute or regulation is the least restrictive means if no alternative forms of regulation would [accomplish the compelling interest] without infringing [religious exercise] rights.” Kaemmerling, 553 F.3d at 684 (internal quotation marks and citation omitted). The government, moreover, cannot meet its burden “unless it demonstrates that it has actually considered and rejected the efficacy of less restrictive measures before adopting the challenged
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practice.” Warsoldier v. Woodford, 418 F.3d 989, 999 (9th Cir. 2005); see also Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411, 2420 (2013) (stating that strict scrutiny requires a “serious, good faith consideration of workable . . . alternatives” to achieve the government’s goal (internal quotation marks and citation omitted)).
Here, the Government has myriad ways to achieve its asserted interests without conscripting the Schools to violate their religious beliefs. The Schools in no way recommend these alternatives, and, indeed, might oppose many of them as a matter of policy. But the fact that they remain available to the Government demonstrates that the Mandate cannot survive RFRA’s narrow-tailoring requirement. For example, the Government could: (i) directly provide abortifacient services to the few individuals who do not receive them under their health plans; (ii) offer grants to entities that already provide abortifacient services at free or subsidized rates and/or work with these entities to expand delivery of the services; (iii) directly offer insurance coverage for abortifacient services; or (iv) grant tax credits or deductions to women who purchase abortifacient services.6 In light of these alternatives, there is no possible justification for forcing the Schools to violate their religious beliefs. See Grote, 708 F.3d at 855 (government “has not demonstrated that requiring religious objectors to provide cost-free contraception coverage is the least restrictive means” of advancing its stated interests).
6 See, e.g., Beckwith Elec. Co. v. Sebelius, No. 8:13-cv-0648-T-17MAP, 2013 WL 3297498, at *18 n.16 (M.D. Fla. June 25, 2013) (“Certainly forcing private employers to violate their religious beliefs in order to supply emergency contraceptives to their employees is more restrictive than finding a way to increase the efficacy of an already established [government-run] program that has a reported revenue stream of $1.3 billion.”); Monaghan v. Sebelius, No. 12-15488, 2013 WL 1014026, at *11 (E.D. Mich. Mar. 14, 2013) (“[T]he Government has not established its means as necessarily being the least restrictive.”); Newland, 881 F. Supp. 2d at 1299 (Mandate not narrowly tailored in light of “the existence of government programs similar to Plaintiffs’ proposed alternative”)
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II. A PRELIMINARY INJUNCTION IS NEEDED TO PREVENT IRREPARABLE HARM. “It has long been established that the loss of constitutional freedoms, for even minimal
periods of time, unquestionably constitutes irreparable injury.” Mills v. District of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009) (internal quotation marks and citation omitted). “By extension, the same is true of rights afforded under the RFRA, which covers the same types of rights as those protected under the Free Exercise Clause of the First Amendment.” Tyndale, 2012 WL 5817323, at *18 (citing O Centro Espirita Beneficente União do Vegetal v. Ashcroft, 389 F.3d 973, 995 (10th Cir. 2004), aff’d, 546 U.S. 418). Here, coercing the Schools to facilitate access to abortifacients in direct violation of their faith is the epitome of irreparable injury.
The impending enforcement of the Mandate is also causing significant disruption to the Schools’ hiring and human-resources planning. Health plans do not take shape overnight, but instead require a number of analyses, negotiations, and decisions before the Schools can offer a health benefits package to their employees. Employers using an outside insurance issuer must work with actuaries to evaluate their funding reserves, and then negotiate with the insurer to determine the cost of the products and services they want to offer their employees. Employers that are self-insured must similarly negotiate with third-party administrators. Under normal circumstances, the Schools must begin the process of determining their health care package for a plan year at least one year before the plan year begins. The multiple levels of uncertainty surrounding the Mandate make this already lengthy process even more complex. In addition, if the Schools choose to follow their religious conscience instead of complying with the Mandate, they will be subject to massive fines and penalties. The Schools require time to budget for such additional expenses. Such jarring uncertainties adversely affect the Schools’ ability to hire and retain employees.
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The Seventh Circuit has twice concluded that forcing a conscientious objector to comply with the Mandate would impose irreparable harm. In Korte, the court stated, “[w]ithout an injunction pending appeal, the Kortes will be forced to choose between violating their religious beliefs by maintaining insurance coverage for contraception and sterilization services contrary to the teachings of their faith and subject their company to substantial financial penalties,” deeming this choice to inflict irreparable harm upon them. 2012 WL 6757353, at *4. See also Grote, 708 F.3d at 854. III. A PRELIMINARY INJUNCTION WOULD IMPOSE NO HARM ON THE
GOVERNMENT. The Government cannot possibly establish that it would suffer any substantial harm from a preliminary injunction pending final resolution of this case. The Government has not mandated contraceptive coverage for over two centuries, and there is no urgent need to enforce the Mandate immediately against the Schools before its legality can be adjudicated. In addition, given that courts have concluded that the Mandate already contains exemptions available to “over 190 million health plan participants and beneficiaries,” Newland, 881 F. Supp. 2d at 1298, the Government cannot plausibly claim that it will be harmed by a temporary delay in enforcement against the Schools. Indeed, any claim of harm to the Government is fatally undermined by the fact that it consented to or did not oppose preliminary injunctive relief in several other cases challenging the Mandate. See, e.g., Mot. to Stay, Sharpe Holdings, Inc. v. U.S. Dep’t of Health & Human Servs., No. 2:12-cv-00092, (E.D. Mo. Mar. 11, 2013) (Dkt. # 41); Order, Sioux Chief Mfg. Co. v. Sebelius, No. 4:13-cv-00036, (W.D. Mo. Feb. 28, 2013) (Dkt. # 9); Order, Hall v. Sebelius, No. 13-cv-00295, (D. Minn. Apr. 2, 2013) (Dkt. # 11). The Government “cannot claim irreparable harm in this case while acquiescing to preliminary injunctive relief in several similar cases.”
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Geneva Coll. v. Sebelius, No. 2:12–cv–00207, 2013 WL 1703871, at *12 (W.D. Pa. Apr. 19, 2013). Indeed, “[i]f the government is willing to grant exemptions for no less than one third of all Americans, and it is willing to consent to injunctive relief in cases that do not fall within those exemptions, then it can suffer no appreciable harm” were an injunction entered here. Beckwith, 2013 WL 3297498, at *18. In short, especially when balanced against the serious irreparable injury being inflicted on the Schools, any harm the Government might claim from a preliminary injunction is de minimis. IV. A PRELIMINARY INJUNCTION WOULD SERVE THE PUBLIC INTEREST.
“It is in the public interest for courts to carry out the will of Congress and for an agency to implement properly the statute it administers.” Mylan Pharms. Inc. v. Shalala, 81 F. Supp. 2d 30, 45 (D.D.C. 2000). In addition, “pursuant to RFRA, there is a strong public interest in the free exercise of religion.” O Centro, 389 F.3d at 1010. Thus, the public interest favors protecting the Schools’ religious liberty by enjoining enforcement of the Mandate until it is permanently struck down.
CONCLUSION For the foregoing reasons, this Court should grant the Schools’ motion for preliminary injunction. Respectfully submitted this 6th day of September, 2013.
s/ Gregory S. Baylor_________ Gregory S. Baylor (Texas Bar No. 01941500) Matthew S. Bowman (DC Bar No. 993261) ALLIANCE DEFENDING FREEDOM 801 G Street, NW, Suite 509 Washington, DC 20001 (202) 393-8690 (202) 347-3622 (facsimile)
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case 3:12-cv-00459-JD-CAN document 56 filed 09/06/13 page 19 of 20
gbaylor@alliancedefendingfreedom.org mbowman@alliancedefendingfreedom.org
David A. Cortman (Georgia Bar No. 188810) ALLIANCE DEFENDING FREEDOM 1000 Hurricane Shoals Road, NE, Suite D-1100 Lawrenceville, GA 30043 (770) 339-0774 (770) 339-6744 (facsimile) dcortman@alliancedefendingfreedom.org
Kevin H. Theriot (Kansas Bar No. 21565) ALLIANCE DEFENDING FREEDOM 15192 Rosewood Leawood, KS 66224 (913) 685-8000 (913) 685-8001 (facsimile) ktheriot@alliancedefendingfreedom.org
Jerry Mackey (California Bar No.90416) 13800 Biola Avenue La Mirada, CA 90639 (562) 903-4777 (562) 903-4748 (facsimile) university.legalcounsel@biola.edu
Jane Dall Wilson (Atty No. 24142-71A) FAEGRE BAKER DANIELS LLP 300 North Meridian Street, Suite 2700 Indianapolis, IN 46204 (317) 237-0300 (317) 237-1000 (facsimile) jane.wilson@faegrebd.com
Attorneys for Plaintiffs
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case 3:12-cv-00459-JD-CAN document 56 filed 09/06/13 page 20 of 20 CERTIFICATE OF SERVICE
I hereby certify that on September 6, 2013 I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to all counsel of record.
s/ Gregory S. Baylor
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 case 3:12-cv-00459-JD-CAN document 59 filed 09/27/13 page 1 of 61

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

)

GRACE SCHOOLS and BIOLA UNIVERSITY, INC.,

) ) )

Plaintiffs,

) )

v.

) )

)

KATHLEEN SEBELIUS, in her official

)

capacity as Secretary, United States

)

Department of Health and Human Services, et al.,

) ) )

)

Defendants.

)

Case No. 3:12-cv-00459-JD-CAN

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

case 3:12-cv-00459-JD-CAN document 59 filed 09/27/13 page 2 of 61
TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................................... iii
INTRODUCTION ...........................................................................................................................1
BACKGROUND .............................................................................................................................4
STANDARD OF REVIEW .............................................................................................................9
ARGUMENT .................................................................................................................................10
I. PLAINTIFFS’ CLAIMS LACK MERIT...........................................................................10
A. Plaintiffs’ Religious Freedom Restoration Act Claim Is Without Merit ...............10
1. The regulations do not substantially burden plaintiffs’ exercise of religion.....................................................................................10
a. The regulations impose no more than a de minimis burden on plaintiffs’ exercise of religion because the regulations require virtually nothing of plaintiffs ................................11
b. Even if the regulations were found to impose some more than de minimis burden on plaintiffs’ exercise of religion, any such burden would be far too attenuated to be “substantial” under RFRA ...................................................................17
2. Even if there were a substantial burden on religious exercise, the regulations serve compelling governmental interests and are the least restrictive means to achieve those interests .................................20
a. The regulations significantly advance compelling governmental interests in public health and gender equality..............20
b. The regulations are the least restrictive means of advancing the government’s compelling interests ...............................................27
B. The Regulations Do Not Violate the Free Exercise Clause ...................................30
C. The Regulations Do Not Violate the Establishment Clause ..................................33
D. The Regulations Do Not Violate the Right to Free Speech Or Expressive Association .....................................................................................35
E. The Regulations Do Not Violate the Due Process Clause .....................................38
i

case 3:12-cv-00459-JD-CAN document 59 filed 09/27/13 page 3 of 61 F. Plaintiffs’ APA Claims Fail ...................................................................................39
1. The regulations were promulgated in accordance with the APA............................................................................................................39
2. The regulations are neither arbitrary nor capricious ..................................41 3. The regulations do not violate restrictions relating to abortion .................41 II. PLAINTIFFS CANNOT ESTABLISH IRREPARABLE HARM, AND AN INJUNCTION WOULD INJURE THE GOVERNMENT AND THE PUBLIC..............45 CONCLUSION ..............................................................................................................................47
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TABLE OF AUTHORITIES
CASES
Abdulhaseeb v. Calbone, 600 F.3d 1301 (10th Cir. 2010) .........................................................................................16
Adams v. Comm'r of Internal Revenue, 170 F.3d 173 (3d Cir. 1999).........................................................................................28, 29
Am. Family Ass'n v. FCC, 365 F.3d 1156 (D.C. Cir. 2004) .........................................................................................31
Am. Friends Serv. Comm. Corp. v. Thornburgh, 951 F.2d 957 (9th Cir. 1991) .............................................................................................32
Annex Medical, Inc. v. Sebelius, No. 12-cv-2804, 2013 WL 101927(D. Minn. Jan. 8, 2013)…………………………11, 18
Ashcroft v. Iqbal, 556 U.S. 662 (2009).............................................................................................................9
Ass'n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150 (1970)...........................................................................................................42
Autocam Corp. v. Sebelius, No. 1:12-CV-1096, 2012 WL 6845677 (W.D. Mich. Dec. 24, 2012) ....................... passim
Autocam Corp. v. Sebelius, __ F.3d __, 2013 WL 5182544 (6th Cir. Sept. 17, 2013) ..............................................3, 11
Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004) .........................................................................................32
Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687 (1994)...........................................................................................................33
Barnhart v. Walton, 535 U.S. 212 (2002)...........................................................................................................44
Bedrossian v. Northwestern Memorial Hosp., 409 F.3d 840 (7th Cir. 2005) .............................................................................................45
Bhd. of R.R. Signalmen v. Surface Transp. Bd., 638 F.3d 807 (D.C. Cir. 2011) ...........................................................................................44
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Bowen v. Roy, 476 U.S. 693 (1986)...........................................................................................................12
Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000)...........................................................................................................37
Braunfeld v. Brown, 366 U.S. 599 (1961)...............................................................................................10, 17, 26
Briscoe v. Sebelius, 927 F. Supp. 2d 1109 (D. Colo. 2013)...............................................................................36
Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487 (10th Cir. 1998) ...........................................................................................20
Catholic Charities of Diocese of Albany v. Serio, 859 N.E.2d 459 (N.Y. 2006)...................................................................................... passim
Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67 (Cal. 2004) ...........................................................................................23, 31, 36
Chacon v. Granata, 515 F.2d 922 (5th Cir. 1975) .............................................................................................45
Children's Healthcare Is a Legal Duty, Inc. v. Min De Parle, 212 F.3d 1084 (8th Cir. 2000) ...........................................................................................34
Church of Scientology of Ga., Inc. v. City of Sandy Springs, Ga., 843 F. Supp. 2d 1328 (N.D. Ga. 2012) ..............................................................................15
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)................................................................................................... passim
City of Boerne v. Flores, 521 U.S. 507 (1997)...........................................................................................................16
Civil Liberties for Urban Believers v. City of Chi., 342 F.3d 752 (7th Cir. 2003) .................................................................................12, 14, 19
Combs v. Homer-Center Sch. Dist., 540 F.3d 231 (3d Cir. 2008)...............................................................................................10
Conestoga Wood Specialties Corp. v. Sebelius, 724 F.3d 377 (3d Cir. 2013).........................................................................................11, 33
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Conestoga Wood Specialties Corp. v. Sebelius, 917 F. Supp. 2d 394 (E.D. Pa. Jan. 11, 2013)............................................................ passim
Connection Distrib. Co. v. Reno, 154 F.3d 281 (6th Cir. 1998) .............................................................................................46
Cornish v. Dudas, 540 F. Supp. 2d 61 (D.D.C. 2008) .....................................................................................46
Corp. of the Presiding Bishop v. Amos, 483 U.S. 327 (1987)...........................................................................................................35
Cutter v. Wilkinson, 544 U.S. 709 (2005).....................................................................................................33, 34
DKT Mem'l Fund, Ltd. v. Agency for Int'l Dev., 887 F.2d 275 (D.C. Cir. 1989) ...........................................................................................41
Dialysis Ctrs., Ltd. v. Schweiker, 657 F.2d 135 (7th Cir. 1981) .............................................................................................42
Dickerson v. Stuart, 877 F. Supp. 1556 (M.D. Fla. 1995) ..................................................................................20
Dole v. Shenandoah Baptist Church, 899 F.2d 1389 (4th Cir. 1990) ...........................................................................................23
Droz v. Comm'r of IRS, 48 F.3d 1120 (9th Cir. 1995) .............................................................................................34
Eden Foods, Inc. v. Sebelius, No. 13-cv-11229, 2013 WL 1190001 (E.D. Mich. Mar. 22, 2013) .......................11, 18, 31
Elrod v. Burns, 427 U.S. 347 (1976)...........................................................................................................44
Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872 (1990)...........................................................................................................30
Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548 (1976)...........................................................................................................44
Fegans v. Norris, 537 F.3d 897 (8th Cir. 2008) .............................................................................................29
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case 3:12-cv-00459-JD-CAN document 59 filed 09/27/13 page 7 of 61
Garner v. Kennedy, 713 F.3d 237 (5th Cir. 2013) .............................................................................................15
Geneva Coll. v. Sebelius, No. 2:12-cv-00207, 2013 WL 838238 (W.D. Penn. Mar. 6, 2013) ...................................31
Gilardi v. Sebelius, 926 F. Supp. 2d 273 (D.D.C. 2013) .......................................................................11, 16, 19
Gillette v. United States, 401 U.S. 437 (1971).....................................................................................................33, 34
Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006)...............................................................................................18, 23, 26
Gooden v. Crain, 353 F. App'x 885, 888 (5th Cir. 2009)...............................................................................29
Gov't Empls. Ins. Co. v. Benton, 859 F.2d 1147 (3d Cir. 1988).............................................................................................43
Graham v. Comm'r, 822 F.2d 844 (9th Cir. 1987) .......................................................................................23, 29
Gray v. Romero, 697 F. Supp. 580 (D.R.I. 1988)..........................................................................................42
Grote Indus., LLC v. Sebelius, 914 F. Supp. 2d 943 (S.D. Ind. 2012) ........................................................................ passim
Grote v. Sebelius, 708 F.3d 850 (7th Cir. 2013) .......................................................................................18, 20
Henderson v. Kennedy, 253 F.3d 12 (D.C. Cir. 2001) .............................................................................................10
Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278 (W.D. Okla. 2012) ....................................................................10, 31
Hobby Lobby Stores, Inc. v. Sebelius, 133 S. Ct. 641 (2012) .........................................................................................................10
Hobby Lobby v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) ...................................................................................15, 19
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case 3:12-cv-00459-JD-CAN document 59 filed 09/27/13 page 8 of 61
Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010) .......................................................................................................38
Holiday Inns of Am., Inc. v. B & B Corp., 409 F.2d 615 (3d Cir. 1969)...............................................................................................45
Intercommunity Ctr. for Justice & Peace v. INS, 910 F.2d 42 (2d Cir. 1990).................................................................................................32
Judge v. Quinn, 612 F.3d 537 (7th Cir. 2010) ...............................................................................................9
Kaemmerling v. Lappin, 553 F.3d 669 (D.C. Cir. 2008) ................................................................................... passim
Korte v. U.S. Dep't of Health & Human Servs., 912 F. Supp. 2d 735 (S.D. Ill. 2012)......................................................................11, 19, 31
Larson v. Valente, 456 U.S. 228 (1982)...............................................................................................33, 34, 35
Legatus v. Sebelius, 901 F. Supp. 2d 980 (E.D. Mich. 2012).............................................................................25
Liberty Univ., Inc. v. Lew, __ F.3d __, 2013 WL 3470532 (4th Cir. July 11, 2013)....................................................35
Living Water Church of God v. Charter Twp. of Meridian, 258 Fed. App'x 729 (6th Cir. 2007) .......................................................................14, 15, 19
M.K. Chambers Co. v. HHS, No. 13-cv-11379, 2013 WL 1340719 (E.D. Mich. Apr. 3, 2013) ............................. passim
McEachin v. McGuinnis, 357 F.3d 197 (2d Cir. 2004).........................................................................................14, 19
McNeilly v. Land, 684 F.3d 611 (6th Cir. 2012) .............................................................................................45
Mead v. Holder, 766 F. Supp. 2d 16 (D.D.C. 2011) .....................................................................................20
Mersino Mgmt. Co. v. Sebelius, __ F. Supp. 2d __, 2013 WL 3546702 (E.D. Mich. July 11, 2013).......................11, 16, 46
vii

case 3:12-cv-00459-JD-CAN document 59 filed 09/27/13 page 9 of 61
Motor Vehicle Mfrs. Ass'n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983).......................................................................................................40, 41
Murphy v. State of Ark., 852 F.2d 1039 (8th Cir. 1988) ...........................................................................................29
Navajo Nation v. U.S. Forest Serv., 479 F.3d 1024 (9th Cir. 2007) ..........................................................................................23
New Life Baptist Church Acad. v. Town of E. Longmeadow, 885 F.2d 940 (1st Cir. 1989) ........................................................................................28, 29
O'Brien v. HHS, 894 F. Supp. 2d 1149 (E.D. Mo. 2012)...................................................................... passim
Olsen v. DEA, 878 F.2d 1458 (D.C. Cir 1989) ..........................................................................................33
Olsen v. Mukasey, 541 F.3d 827 (8th Cir. 2008) .............................................................................................31
Parker v. Levy, 417 U.S. 733 (1974)...........................................................................................................38
Potter v. Dist. of Columbia, 558 F.3d 542 (D.C. Cir. 2009) ...........................................................................................19
Roberts v. U.S. Jaycees, 468 U.S. 609 (1984).....................................................................................................22, 37
Rumsfeld v. Forum for Academic & Inst. Rights, Inc. (“FAIR), 547 U.S. 47 (2006).................................................................................................35, 36, 37
S. Ridge Baptist Church v. Indus. Comm'n of Ohio, 911 F.2d 1203 (6th Cir. 1990) ...............................................................................24, 26, 29
Sharpe Holdings, Inc. v. HHS, No. 2:12-CV-92-DDN, 2012 WL 6738489 (E.D. Mo. Dec. 31, 2012) .............................30
Sherbert v. Verner, 374 U.S. 398 (1963).....................................................................................................18, 23
Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998)...............................................................................................................9
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case 3:12-cv-00459-JD-CAN document 59 filed 09/27/13 page 10 of 61
Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) ...........................................................................................47
Thomas v. Review Bd. of the Ind. Emp't Sec. Div., 450 U.S. 707 (1981).........................................................................................10, 15, 18, 19
U.S. Civil Serv. Comm'n v. Nat'l Ass'n of Letter Carriers, 413 U.S. 548 (1973)...........................................................................................................38
United States v. Amer, 110 F.3d 873 (2d Cir. 1997)...............................................................................................31
United States v. Israel, 317 F.3d 768 (7th Cir. 2003) .............................................................................................27
United States v. Lafley, 656 F.3d 936 (9th Cir. 2011) .............................................................................................29
United States v. Lee, 455 U.S. 252 (1982)...........................................................................................................23
United States v. NCR Corp., 688 F.3d 833 (7th Cir. 2012) ...............................................................................................9
United States v. O'Brien, 391 U.S. 367 (1968)...........................................................................................................36
United States v. Oliver, 255 F.3d 588 (8th Cir. 2001) .............................................................................................23
United States v. Schmucker, 815 F.2d 413 (6th Cir. 1987) .............................................................................................27
United States v. Wilgus, 638 F.3d 1274 (10th Cir. 2011) ...................................................................................27, 28
United States v. Williams, 553 U.S. 285 (2008)...........................................................................................................38
United States v. Winddancer, 435 F. Supp. 2d 687 (M.D. Tenn. 2006)......................................................................23, 24
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982)...........................................................................................................38
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case 3:12-cv-00459-JD-CAN document 59 filed 09/27/13 page 11 of 61
Vision Church v. Vill. of Long Grove, 468 F.3d 975 (7th Cir. 2006) .......................................................................................10, 15
Walz v. Tax Commission of New York, 397 U.S. 664 (1970)...........................................................................................................35
Washington v. Klem, 497 F.3d 272 (3d Cir. 2007)...............................................................................................14
Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982)...........................................................................................................46
Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338 (2d Cir. 2007)...............................................................................................15
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008).................................................................................................................9
Wisconsin v. Yoder, 406 U.S. 205 (1972)...............................................................................................15, 18, 23
STATUTES
5 U.S.C. § 553(b), (c).....................................................................................................................39 26 U.S.C. § 45R .............................................................................................................................25 26 U.S.C. § 4980H(c)(2)................................................................................................................25 42 U.S.C. § 18011..........................................................................................................................24 42 U.S.C. § 18021(a)(1).................................................................................................................42 42 U.S.C. § 18023(b)(1)(A)(i) .......................................................................................................42 42 U.S.C. § 2000bb-1 et seq ..........................................................................................................10 42 U.S.C. §§ 300.................................................................................................................... passim 42 U.S.C. § 300gg-13(a)(4) .............................................................................................................5 45 C.F.R. § 147.131 ............................................................................................................... passim 45 C.F.R. § 147.140 .......................................................................................................................24 45 C.F.R. § 46.202(f) .....................................................................................................................44 Pub. L. No. 103-141, 107 Stat. 1488 (1993)..................................................................................10 Pub. L. No. 111-148, 124 Stat. 119 (2010)......................................................................................4 Pub. L. No. 112-74, §§ 506, 507, 125 Stat. 786, 1111-12 (Dec. 23, 2011) ...................................42
RULES AND REGULATIONS
62 Fed. Reg. 8610 (Feb. 25, 1997) ................................................................................................44 75 Fed. Reg. 34,540 (June 17, 2010) .............................................................................................24 75 Fed. Reg. 41,726 (July 19, 2010)..................................................................................21, 40, 47
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76 Fed. Reg. 46,621 (Aug. 3, 2011).................................................................................................6 77 Fed. Reg. 16,501 (Mar. 21, 2012).........................................................................................6, 39 77 Fed. Reg. 8725 (Feb. 15, 2012) ........................................................................................ passim 78 Fed. Reg. 39,869 (July 2, 2013)........................................................................................ passim 78 Fed. Reg. 8456 (Feb. 6, 2013) ..............................................................................................6, 40
LEGISLATIVE MATERIAL 139 Cong. Rec. S14350-01, S14352 ..............................................................................................16 148 Cong. Rec. H6566, H6580 ......................................................................................................44 155 Cong. Rec. S12106-02, S12114 ........................................................................................22, 46 155 Cong. Rec. S12265-02, S12274 ..............................................................................................22 H.R. Rep. No. 111-443 ..................................................................................................................28
FEDERAL RULES OF CIVIL PROCEDURE Fed. R. Civ. P. 12(b)(1)....................................................................................................................9 Fed. R. Civ. P. 12(b)(6)....................................................................................................................8 Fed. R. Civ. P. 56(a) ........................................................................................................................9
MISCELLANEOUS Guttmacher Institute, State Policies in Brief: Insurance Coverage of
Contraceptives (June 2013) .................................................................................................5 HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines .....................6 HealthCare.gov, Affordable Care Act Rules on Expanding Access to Preventive
Services for Women (August 1, 2011) .............................................................................43 INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING
THE GAPS 19-20, 109 (2011) ...............................................................................................4 Kaiser Family Foundation and Health Research & Educational Trust, Employer
Health Benefits 2012 Annual Survey) ..............................................................................24 Office of Population Affairs, Memorandum (Apr. 23, 1997) .......................................................44 U.S. Preventive Services Task Force A and B Recommendations,
http://www.uspreventiveservicestaskforce.org/uspstf/uspsabrecs.htm ................................5
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INTRODUCTION Plaintiffs Grace Schools and Biola University ask this C ourt to p reliminarily enjoin regulations that ar e intended to acc ommodate religious exercise while helping to ensure that women have access to health coverage, without cost-sharing, for preventive services that medical experts deem necessary for women’s health and well-being. Subject to an exem ption for houses of worship and their in tegrated auxiliaries, and accommodations for certain o ther non-profit religious organizations, as discussed below, the regulations that plaintiffs challenge require certain group health plans and health insurance issuers to provide coverage, without cost-sharing (such as a copayment, coinsurance, or a deduc tible), for, among other things, all Food and Drug Administration (FDA)-approved cont raceptive methods, sterilization procedures, and patient education and counseling for women with reproduc tive capacity, as prescr ibed by a health care provider. When the contraceptive-coverage requirem ent was first established, in August 2011, certain non-profit religious organi zations objected on religious grounds to having to provide contraceptive coverage in the group health plans they offer to their em ployees. Although, in the government’s view, these organ izations were m istaken to claim that an accommodation was required under the First Am endment or the R eligious Freedom Restoration Act (RFRA), the defendant Departments decided to accommodate the concerns expressed by these organizations. First, they established an exem ption for the gr oup health plans of hous es of worship and their integrated auxiliaries (and any a ssociated group health insuran ce coverage). In addition, they established accommodations for the group health plan s of eligible non-prof it religious organizations, like plaintiffs (and any associated group health insurance c overage), that relieve them of responsibility to contract, arrange, pay, or refer for c ontraceptive coverage or services, but that als o ensure th at the women who part icipate in th ese plans are not denied access to contraceptive coverage without cost-sharing. To be eligib le for an accomm odation, the organization merely needs to certify that it meets the eligibility criteria, i.e., that it is a non-profit organization that holds itself out as religious and has a religious objection to providing coverage
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for some or all contraceptives. Once the organization certifies that it meets these criteria, it need not contract, arrange, pay, or refer for contracep tive coverage or services. If the organization has third-party insurance—like Biol a, and like Grace Schools does fo r its student plan—the thirdparty insurer takes on the responsib ility to provide contraceptive coverage to the organization’s employees and covered dependents. If the group hea lth plan of the organization is self-insured— like Grace Schools’ employee pla n—its third-party adm inistrator (TPA) has resp onsibility to arrange contraceptive coverage for the organi zation’s employees and covered dependents. In neither case does the objecting employer bear th e cost (if any) of providing contraceptive coverage; nor does it administer such coverage; nor does it contract or otherwise arrange for such coverage; nor does it refer for such coverage.
Remarkably, plaintiffs now declare that th ese accommodations them selves violate their rights under RFRA and the First Am endment. They contend that th e mere act of certifying that they are eligible for an accommodation is a s ubstantial burden on their relig ious exercise because, once they make the certification, th eir employees will be able to obtain contraceptiv e coverage through other parties. Th is extraordinary contention s uggests that plaintiffs not only seek to avoid paying for, adm inistering, or otherwise provid ing contraceptive coverage themselves, but also seek to prevent the wom en who work for their organizations from obtaining such coverage, even if through other parties.
At bottom, plaintiffs’ position seems to be that any as serted burden, no m atter how de minimis, amounts to a substantial burden under RFRA . That is not the law. Congress am ended the initial v ersion of RFRA to add the word “ substantially,” and thus made clear that “any burden” would not suffice. Although these regulat ions require virtually nothing of the m, plaintiffs claim that the regulati ons run afoul of their sincerely held religious beliefs prohibiting them from providing or facilitati ng health coverage for certain c ontraceptive services, and that the challenged regulations violate RFRA, the First and Fifth Am endments, and the Administrative Procedure Act (APA). Plain tiffs move for a prelim inary injunction on their RFRA claim, which should be deni ed because plaintiffs have not shown that they are likely t o
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succeed on the m erits of that claim. Moreover, all of plaintiffs’ claims fail, and thus should be dismissed in their entirety; alte rnatively, the Court should ente r summary judgment in favor of the government.
With respect to plaintiffs’ RFRA claim, plaintiffs cannot establish a substantial burden on their religious exercise—as they must—because th e regulations do not require plaintiffs to change their behavior in any significant way. Plaintiffs are not required to contract, arrange, pay, or refer for contraceptive coverage. To the contrary, plaintiffs are free to continue to refuse to do so, to voice their disapp roval of contraception, and to encourage their employees to refrain from using contraceptive services. Plaint iffs are required only to infor m their issuers/TPAs that th ey object to providing contracep tive coverage, which they have done or would have to do voluntarily even absent these regu lations in order to ensure that that th ey are not responsible for contracting, arranging, paying, or referring for such coverage. Plaintiffs can hardly claim that it is a violation of RFRA to require them to do almost exactly what they would do in the ordinary course.
Furthermore, plaintiffs’ challenge re sts largely on the theo ry that even the extre mely attenuated connection between them and the independent provision by issuers/TPAs of payments for contraceptive services to which plainti ffs object on religious grounds—but for which plaintiffs pay nothing—amounts to a substantial burden on their religious exercise. This cannot be. Regardless of how plaintiffs frame their religious beliefs, courts must independently consider whether a given law imposes a subs tantial burden on those beliefs. See Autocam Corp. v. Sebelius, No. 1:12-CV-1096, 2012 WL 6845677, at *6 ( W.D. Mich. Dec. 24, 2012), aff’d, __ F.3d __, 2013 WL 5182544 (6th Cir. Sept. 17, 2013). The regulations impose, at most, only the most de minimis burden on plaintiffs’ religious exercise— one too slight and attenuated to be “substantial” under RFRA, and little different from plaintiffs’ payment of salaries to their employees, which those employees can use to purchase contraceptive services if they so choose.
Moreover, even if the challenged regulations were deemed to impose a substantial burden on plaintiffs’ religious exercise, the regulatio ns would not violate RFRA because they are
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narrowly tailored to serve two compelling govern mental interests: improving the health of women and newborn children, and equalizing the provision of pr eventive care for wom en and men so that wom en can partic ipate in the work force, and society m ore generally, on an equal playing field with men.
Plaintiffs’ First Am endment claims are equa lly meritless. Indeed, nearly every cou rt to consider similar First Amendment challenges to the prior version of the regulations rejected the claims, and their analysis applies here. Nor do the regulations violate the Due Process Clause. Plaintiffs also cannot su cceed on their APA claims. They lack prudential stand ing to raise some of their arguments, and in any event, the regu lations are in accordance with the APA and with federal law. Finally, plaintiffs cannot satis fy the rem aining requirements for obtaining a preliminary injunction.
For these reasons, and those explained below, plaintiffs’ m otion for a preliminary injunction should be denied, and defendants’ motion to dism iss or, in the alternative, for summary judgment should be granted.
BACKGROUND Before the Patient Protection and Affordab le Care Act (“ACA”), Pub. L. No. 111-148, 124 Stat. 119 (2010), many Americans did not receive the preventive health care they needed to stay healthy, avoid or delay the onset of dis ease, lead productive lives, and reduce health care costs. Due largely to co st, Americans used pr eventive services at abou t half the recommended rate. See INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS 1920, 109 (2011) (“IOM R EP.”), AR at 317-18, 407. 1 Section 1001 of the ACA—which includes the preventive services coverage provision relevant here—seeks to cure this problem by m aking preventive care accessible and affordable for many more Americans. Specifically, the provision requires all group health plans and health insurance issuers that offer non-grandfathered group or individual health coverage to provide coverage for certain preventive services without cost-
1 Where appropriate, defendants have provided parallel citations to the Administrative Record (AR), which is being filed contemporaneously with this motion and brief.
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sharing, including, “[for] women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [(HRSA)].” 42 U.S.C. § 300gg-13(a)(4).2
Because there were n o existing HRSA gui delines relating to preventive care and screening for women, the Department of Health and Human Services (HHS) requested that the Institute of Medicine (IOM) de velop recommendations to implement the requirement to provide coverage, without cost-sharing, of pr eventive services for wom en. IOM REP. at 2, AR at 300. 3 After conducting an extensive science-based re view, IOM recommended that HRSA guidelines include, among other things, well-wom an visits; breastfeeding support; dom estic violence screening; and, as relevant here, “the full range of [FDA ]-approved contraceptive m ethods, sterilization procedures, and patient educat ion and counseling for wom en with reproductive capacity.” Id. at 10-12, AR at 308-10. FDA-approve d contraceptive m ethods include diaphragms, oral contraceptiv e pills, emergency contraceptives (such as Plan B and Ella), and intrauterine devices (“IUDs”). See id. at 105, AR at 403. IOM determ ined that coverage, without cost-sharing, for these services is necessary to increase access to such services, and thereb y reduce unintended pregna ncies (and the nega tive health outcomes that d isproportionately accompany unintended pregnancies) and promote healthy birth spacing. See id. at 102-03, AR at 400-01.4
2 This provision also applies to immunizations, cholesterol screening, blood pressure screening, mammography, cervical cancer screening, screening and counseling fo r sexually transmitted infections, domestic violence counseling, depression screening, obesity screening and counseling, diet counseling, hearing loss screening for newborns, autism screening for children, developmental screening for children, alcohol misuse counseling, tobacco use counseling and interventions, well-woman visits, breastfeeding support and supplies, and many other preventive services. See, e.g., U.S. Preventive Services Task Force A and B Rec ommendations, http://www.uspreventiveservicestaskforce.org/uspstf/uspsabrecs.htm (last visited Sept. 11, 2013). 3 IOM, which was established by the National Academy of Sciences in 19 70, is fun ded by Congress to provide expert advice to the federal government on matters of public health. IOM REP. at iv, AR at 289. 4 At least twenty-eight states have laws requiring health insurance policies that cover prescription drugs to also provide coverage for FD A-approved contraceptives. See Guttmacher Institute, State Policies in Brief: Insurance Coverage of Contraceptives (June 2013), AR at 1023-26.
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On August 1, 2011, HRSA adopted guidelines consistent with IOM’s recommendations, subject to an exemption relating to certain r eligious employers authorized by regulations issued that same day (the “2011 a mended interim final regulations”). See HRSA, Women’s Preventive Services: Required Health Plan Coverage Guid elines (“HRSA Guidelines”), AR at 283 -84.5 Group health plans established or maintained by these religious employers (and associated group health insurance coverage) are ex empt from any requirement to cover contraceptive services consistent with HRSA’s guidelines. See id.; 45 C.F.R. § 147.131(a).
In February 2012, the government adopted in final regulations the definition of “religious employer” contained in the 2011 a mended interim final regulations wh ile also creating a temporary enforcement safe harbor for non-gr andfathered group health plans sponsored by certain non-profit organizations with religious objections to contraceptive coverage (and any associated group health insurance coverage). See 77 Fed. Reg. 8725, 8726-27 (Feb. 15, 2012), AR at 213-14. The government committed to undertake a new rulemaking during the safe harbor period to adopt new regulations to further accommodate non-grandfathered non-profit religious organizations’ religious objections to covering contraceptive services. Id. at 8728, AR at 215. The regulations challenged here (the “2013 fina l rules”) repres ent the culm ination of that process. See 78 Fed. Reg. 39,869 (July 2, 2013), AR at 1-31; see also 77 Fed. Reg. 16,501 (Mar. 21, 2012) (Advance Notice of Proposed Rulem aking (ANPRM)), AR at 186-93; 78 Fed. Reg. 8456 (Feb. 6, 2013) (Notice of Proposed Rulemaking (NPRM)), AR at 165-85.
The 2013 final rules represent a significant accommodation by the governm ent of the religious objections of c ertain non-profit religious organizations while promoting two important policy goals. The regulations pr ovide women who work for non-profit religious organizations
5 To qualify for the religious employer exemption contained in the 2011 amended interim final regulations, an employer had to meet the following criteria:
(1) The inculcation of religious values is the purpose of the organization; (2) the organization primarily employs persons who share the religious tenets of the organization; (3) the organization serves primarily persons who share the religious tenets of the organization; and (4) the organization is a non profit organization as described in section 60 33(a)(1) and section
6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended. 76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011), AR at 220.
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with access to contracep tive coverage without co st sharing, thereby ad vancing the com pelling

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

health care. The regulations adva nce these interests in a nar rowly tailored fashion that does not

require non-profit religious organizations with re ligious objections to providing contraceptive

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

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

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

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

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

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

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

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

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

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

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

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

coverage requirement for group health plans

established or maintained by “eligible

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

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

that satisfies the following criteria:

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

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

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

(4) The organization self-certifies, in a f orm and manner specified by the S ecretary, that it satisf ies the criteria in paragra phs (b)(1) through (3) of this section, and makes such self-certification available for examination upon request by the first

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day of the first p lan year to which the accommodation in paragraph (c) of this section applies. 45 C.F.R. § 147.131(b); see also 78 Fed. Reg. at 39,874-75, AR at 6-7. Under the 2013 final rules, an eligible orga nization is not required “to contract, arrange, pay, or refer for contraceptive coverage” to w hich it has religious objections. 78 Fed. Reg. at 39,874, AR at 6. To be relieved of any such obligations, the 2013 fina l rules require only that an eligible organization complete a self-certification form stating that it is an elig ible organization and provide a copy of that self-cer tification to its issuer or TPA. Id. at 39,878-79, AR at 10-11. Its participants and benef iciaries, however, w ill still ben efit from separate payments for contraceptive services without cost sharing or other charge. Id. at 39,874, AR at 6. In the case of an organization with an insured gro up health pl an—such as Grace, with respect to its student health plan, and Biola—the orga nization’s health insurance issu er, upon receipt of the selfcertification, must provide separate paym ents to plan participants and ben eficiaries for contraceptive services without cost sharing, premium, fee, or other charge to plan participants or beneficiaries, or to the eligible organization or its plan. See id. at 39,875-77, AR at 7-9. In the case of an organization with a self-insured group health plan—such as Grace—the organization’s TPA, upon receip t of the self-certification, must provide or arrange separate p ayments for contraceptive services for part icipants and beneficiaries in the plan without cost-sharing, premium, fee, or other charge to plan participants or beneficiaries, or to the eligible organization or its plan. See id. at 39,879-80, AR at 11-12. Any costs incurred by the TPA will be reimbursed through an adjustment to Federally-facilitated Exchange (FFE) user fees. See id. at 39,880, AR at 12. The 2013 final rules generally apply to group h ealth plans and health insurance issuers for plan years beginning on or after January 1, 2014, see id. at 39,872, AR at 4, except that the amendments to the relig ious employer exemption apply to group health plans and group health insurance issuers for plan years beginning on or after August 1, 2013, see id. at 39,871, AR at 3.
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STANDARD OF REVIEW Defendants move to dism iss the Amended Complaint in its entir ety for failure to state a claim upon which relief m ay be granted pursuant to Federal Rule of Civ il Procedure 12(b)(6). Under this Rule, “the tenet th at a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a caus e of action, supported by m ere conclusory statem ents, do not suffice.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). Defendants also m ove to dism iss one count, see infra at Section I.F.3, under Federal Rule of Civil Procedure 1 2(b)(1) for l ack of subject matter jurisdiction. The party invoking federal jurisdicti on bears the burden of establishing its existence, a nd the Court m ust determine whether it has jurisdiction before addressing the merits of a claim. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 104 (1998). To the exte nt that th e Court m ust consider the administrative record in addition to the face of the Am ended Complaint, defendants move, in the alternative, for summ ary judgment pursuant to Federal Rule of Civil Procedure 56. A party is entitled to summary judgm ent where the administrative record demonstrates “that there is no g enuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). This memorandum also responds to plainti ffs’ motion for a prelim inary injunction on their RFRA claim . A prelim inary injunction is an “extraordinary rem edy that m ay only be awarded upon a clear showing that the pl aintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). A plaintiff “m ust establish that he is likely to succeed on the merits, that he is likely to suffer irreparabl e harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20; see United States v. NCR Corp., 688 F.3d 833, 837 (7th Cir. 2012).6
6 While the Seventh Circuit has applied the “sliding scale” analysis after Winter, see, e.g., Judge v. Quinn, 612 F.3d 537, 546 (7th Cir. 2010), and defendants acknowledge that this Court is bound by the Seventh Circuit on this issue, the government reserves the right to argue that the “sliding scale” an alysis is in consistent with Winter and subsequent Supreme Court precedent. In any event, the “sliding scale” analysis does not relieve plaintiffs of their burden to show that they are likely to succeed on the m erits. See Judge, 612 F.3d at 546; NCR Corp., 688 F.3d at 837.
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ARGUMENT I. PLAINTIFFS’ CLAIMS LACK MERIT
A. Plaintiffs’ Religious Freedom Restoration Act Claim Is Without Merit 1. The regulations do not substantia lly burden plaintiffs’ exercise of religion
Under RFRA, Pub. L. No. 103-141, 107 St at. 1488 (1993) (codified at 42 U.S.C. § 2000bb-1 et seq.), the federal government “shall not substantially burden a person’s exercise of religion” unless that burde n is the least restrictive means to further a compelling governm ental interest. 42 U.S.C. 2000 bb-1. Importantly, “only substantial burdens on the exercise of religion trigger the compelling interest requirement.” Henderson v. Kennedy, 253 F.3d 12, 17 (D.C. Cir. 2001) (emphasis added). “A substantial burden ex ists when government action puts ‘substantial pressure on an adherent to m odify his behavior and to violate his beliefs.’” Kaemmerling v. Lappin, 553 F.3d 669, 678 (D.C . Cir. 2008) (citing Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707, 718 (1981)); see Vision Church v. Vill. of Long Grove , 468 F.3d 975, 997 (7th Cir. 20 06) (noting same in the context of the Religious Land Us e and In stitutionalized Persons Act (RLUIPA)). “An inconsequential or de minimis burden on religious practice does not rise to this level, nor does a burden on ac tivity unimportant to the adherent’s religious scheme.” Kaemmerling, 553 F.3d at 678; see also Braunfeld v. Brown, 366 U.S. 599, 606 (1961) (“To strike down, without the m ost careful scrutiny, legislation which imposes only an indirect burden on the exercise of religion, i.e., legislation which does not m ake unlawful the religious practice itself, would radically restrict the oper ating latitude of the le gislature.”); Combs v. Homer-Center Sch. Dist., 540 F.3d 231, 262 (3d Cir. 2008) (Sciri ca, C.J., concurring) (“In our modern regulatory state, virtually all legislation (including neutral laws of general applicability) imposes an incidental burden at som e level by placing indirect costs on an individual’s activity. Recognizing this . . . [t]he federal governm ent . . . ha[s] identified a substantiality threshold as the tipping point for requiring heightened justifications for governmental action.”).
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For two reasons, plaintiffs cannot show that the challenged regulations substantially burden their religious exercise. 7 First, becau se the regulations require virtua lly nothing of
plaintiffs, and certainly do not require plaintiffs to modify their behavior in any meaningful way,
the regulations do not im pose any m ore than a de minimis burden on plaintiffs—let alone a
substantial one. Second, even if this Court were to find that th e regulations impose some burden
on plaintiffs’ religious exercise, any such burden would be far too attenuated to be substantial.
a. The regulations impose no more t han a de minimis burden on plaintiffs’ exercise of religion because the regulations require virtually nothing of plaintiffs
To put this case in its s implest terms, plaintiffs challenge regulations that require them to
do next to nothing, except what they would have to do even in the absence of the regulations.
Plaintiffs, as eligible organizations, are not required to contract, arrange, pay, or refer for
contraceptive coverage. To the cont rary, they are free to co ntinue to refuse to do so, to vo ice
their disapproval of contracep tion, and to encourage their em ployees to refrain from using
contraceptive services. Plaintiffs need only fulfill the self-certification requirement and provide
the completed self-certification to their is suers/TPAs. They need not provide paym ents for
contraceptive services to their employees. Instead, third parties—plaintiffs’ issuers/TPAs—
provide payments for contraceptive services, at no cost to plain tiffs. In short, with respect to
contraceptive coverage, plainti ffs need not do anything m ore than they did prior to th e
7 Plaintiffs repeatedly refer to cases involving for-profit companies that object to the contraceptive coverage regulations. See, e.g., Pls.’ Br. at 4-10. B ut those cases are ina pposite because for-profit corporations—unlike plaintiffs—do not qualify for the accomm odations for eli gible organizations. Furthermore, plaintiffs disregard the substantial body of opinions in the government’s favor. See Hobby Lobby S tores, Inc. v. Sebelius, 133 S. Ct. 641 (2012) (Sotomayor, J., in chambers) (denying application for injunction pending appellate review); Conestoga Wood Specialties Corp. v. Sebelius, 724 F.3d 377 (3d Cir. 2013); Autocam Corp. v. Sebelius, __ F.3d __, 2013 WL 5182544 (6th Cir. Sept. 17, 2013); Mersino Mgmt. Co. v . Sebelius, __ F. Supp. 2d __, 2013 WL 3546702 (E.D. Mich. July 11, 2013); M.K. Chambers Co. v. HHS, No. 13-cv-11379, 2013 WL 1340719 (E.D. Mich. Apr. 3, 2013); Eden Foods, Inc. v. Sebelius, No. 13-cv-11229, 2013 WL 1190001 (E.D. Mich. Mar. 22, 2013); Gilardi v. Sebelius, 926 F. Supp. 2d 273, 282 (D.D.C. 2013), appeal pending sub nom. Gilardi v. HHS, No. 13-5069 (D.C. Cir.); Conestoga Wood Specialties Corp. v. Sebelius, 917 F. Supp. 2d 394 (E.D. Pa. Jan. 11, 2013); Annex Medical, Inc. v. Sebelius, No. 12-cv-2804, 2013 WL 101927 (D. Minn. Jan. 8, 2013), appeal pending, No. 13-1118 (8th Cir.); Grote Indus., LLC v. Sebelius, 914 F. Supp. 2d 943 (S.D. Ind. 2012), appeal pending No. 13-1077 (7th Cir.); Autocam, 2012 WL 6845677; Korte v. U.S. Dep’t of Health & Human Servs., 912 F Supp. 2d 735 (S.D. Ill. 2012), appeal pending, No. 12-3841 (7th Cir.); O’Brien v. HHS, 894 F. Supp. 2d 1149 (E.D. Mo. 2012), appeal pending, No. 123357 (8th Cir.).
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promulgation of the challenged regulations—that is, to inform their issuers/TPAs that they object to providing contraceptive coverage in order to ensure that they are not responsible for contracting, arranging, paying, or referring for such coverage . Thus, the regulations do not require plaintiffs “to modify [their] religious behavior in any way.” Kaemmerling, 553 F.3d at 679. The Court’s inquiry should end here. A law cannot be a substantial burden on religious exercise when “it involves no ac tion or forbearance on [ plaintiffs’] part, nor . . . otherwise interfere[s] with any religious act in which [plaintiffs] engage[].” Kaemmerling, 553 F.3d at 679; see also Civil Liberties for Urban Be lievers v. City of Chi. , 342 F.3d 752, 761 (7th Cir. 2003) (holding, in the context of RLUIPA, that “a substa ntial burden on religious exercise is one that necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise . . . effectively impracticable”).
Because the regulations place no burden at all on plaintiffs, they plainly place no cognizable burden on their religio us exercise. Plaintiffs’ contrary argum ent rests on an unprecedented and sweeping theory of what it mean s for religious exercise to be burdened. Not only do plaintiffs wa nt to be free from contracting, arranging, paying, or referring for contraceptive services for their employees—w hich, under these regulations, they are—but plaintiffs would also prevent anyone else from providing such coverage to their em ployees, who might not subscribe to plaintiffs’ religious beliefs. That this is the de facto impact of plaintiffs’ stated objections is made clear by their assertion that RFRA is violated whenever they “trigger” a third party’s provision to plaintiffs’ employees of services to which plaintiffs object. Am. Compl. ¶¶ 153, 155; see Pls.’ Br. at 2. This theory would m ean, for example, that even the go vernment would not realistically be able to provide contrace ptive coverage to pl aintiffs’ employees, because such coverage would be “trigger[ed],” id., by plaintiffs’ objection to providing such coverage themselves. But RFRA is a shield, not a sword, see O’Brien, 894 F. Supp. 2d at 115860, and accordingly it does not prevent the g overnment from providing altern ative means of achieving important statutory objectives onc e it has provided a religious accommodation. Cf. Bowen v. Roy, 476 U.S. 693, 699 (1986) (“The Free Ex ercise Clause sim ply cannot be
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understood to require the Governm ent to conduct it s own internal affairs in ways that com port with the religious beliefs of particular citizens.”).
Plaintiffs’ RFRA challenge is s imilar to th e claim that the D.C. Circuit rejected in Kaemmerling. There, a federal prisoner objected to the FBI’s coll ection of his DNA profile. 553 F.3d at 678. In concluding that this collecti on did not substantially burden the prisoner’s religious exercise, the court reas oned that “[t]he extraction and storage of DNA information are entirely activities of the FBI, in which Kae mmerling plays no role an d which occur af ter the BOP has taken his fluid or tissue sample (to which he does not object).” Id. at 679. In the court’s view, “[a]lthough the government’s activities with his fluid or ti ssue sample after the BOP takes it may offend Kaemmerling’s religious beliefs, they cannot be sa id to ham per his religious exercise because they do not pressure [him] to modify his behavior and to violate his beliefs.” Id. (internal citation and q uotation marks omitted). The same is true he re, where th e provision of contraceptive services is “entirely [an] activit[y] of [a third party], in which [plaintiffs] play[] no role.” Id. As in Kaemmerling, “[a]lthough the [third party]’s activities . . . m ay offend [plaintiffs’] religious beliefs, they cannot be said to hamper [their] religious exercise.” Id.
Perhaps understanding the tenuous ground on whic h their RFRA claim rests, given that the regulations do not require them to contract, arrange, pay, or refer for contraceptive services, plaintiffs attempt to circumvent this problem by advancing the novel theory that the regulations require them to som ehow “facilitate acces s” to contraception coverage, a nd that it is this “facilitation” that vio lates plaintiffs’ religious beliefs. See, e.g., Pls.’ Br. at 4. B ut under the challenged regulations plaintiffs need only to self-certify that they object to providing coverage for contraceptive services and that they otherwis e meet the criteria for an eligible organization, and to share that self-certification with their issuers/TPAs. In other words, plaintiffs are required to inform their issu ers/TPAs that they object to providing contraceptive coverage, which they have done or would have to do vo luntarily anyway even absent these regulations in order to ensure that they are not res ponsible for contrac ting, arranging, paying, or referring for contraceptive coverage. The sole difference is that they must inform their issuers/TPAs that their
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objection is for religious reasons—a statement which they have alr eady made repeatedly in this litigation and elsewhere.
Furthermore, any burden im posed by the pu rely administrative self-certification requirement—which should take plaintiffs a matter of minutes—is, at most, de minimis, and thus cannot be “substantial” under RFRA. The s ubstantial burden hurdle is a high one. Living Water Church of God v. Charter Twp. of Meridian , 258 Fed. App’x 729, 734 (6th Cir. 2007); see also Kaemmerling, 553 F.3d at 678 (“An inconsequential or de minimis burden on religious practice does not rise to this level [of a substantial burden].”); Washington v. Klem, 497 F.3d 272, 279-81 (3d Cir. 2007); McEachin v. McGuinnis, 357 F.3d 197, 203 n.6 (2d Cir. 2004); Civil Liberties for Urban Believers, 342 F.3d at 761. Indeed, if this is not a de minimis burden, it is hard to see what would be. In fact, plaintiffs’ alternative proposals only confirm that the alleged “burden” of selfcertification is de minimis. They contend that, as an alternative to the accommodations developed by the Departm ents, the federal governm ent should somehow expand or create other public programs so as to provide contraceptive coverage to the w omen who participa te in plain tiffs’ group health plans. RF RA plainly does not require defendants to expand or create governm ent programs, particularly where, as here, th ere is no statutory authority to do so. See infra at 27-30. But, in any event, plaintiffs’ own proposals w ould entail the sam e putative “burden” as the existing accommodations, or an even greater burden: one way or another, plaintiffs would have to certify that they are elig ible for an ac commodation and that they object to providing contraceptive coverage, and the result would be that the wom en who participa te in their plan would get contraceptive coverage through another source such as Medicaid. The governm ent would of course, as it does with Medicaid, have to verify employment and/or dependent beneficiary status with the elig ible organization. The current a ccommodations are thus likely to require less of plaintiffs’ involve ment than would be required under a government program that would separately provide contraceptive coverage for their employees and dependents.8
8 Plaintiffs state th at, for self-insured eligible organizations, the self-certification form “designat[es]. . . th e third party administrator(s) as pla n administrator and claim s administrator for c ontraceptive benefits.” Pls.’ Br. at 2 (quoting 78 Fed. Reg. at 39,879, AR at 11). It is not clear what legal significance plaintiffs attach to this statement,
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Contrary to plaintiffs’ sugges tion, the m ere fact that plai ntiffs claim that the self-

certification requirement imposes a substantial bur den on their religious exercise does not m ake

it so. See Conestoga Wood Specialties Corp. v. Sebelius , 917 F. Supp. 2d 394, 413 (E.D. Pa .

2013) (“[W]e reject the notion . . . that a plain tiff shows a burden to be substantial simply by

claiming that it is.”), aff’d, 724 F.3d 377 (3d Cir. 2013). Under RF RA, plaintiffs are entitled to

their sincere religious beliefs, but they are not entitled to decide what does and does not impose a

substantial burden on such beliefs. Although “[

c]ourts are not arbiters of scriptural

interpretation,” Thomas, 450 U.S. at 716, “RFRA still requ ires the court to determ ine whether

the burden a law imposes on a plaintiff’s st ated religious belief is ‘substantial.’” Conestoga, 917

F. Supp. 2d at 413. Plaintiffs would lim it the C ourt’s inquiry to tw o prongs: first, whether

plaintiffs’ religious objection to the challenged regulations are sincere, and second, whether the

regulations apply significant pressure to plaintiffs to com ply. But plaintiffs ignore a critical third

criterion of the “substantial burden” test, which gives meaning to the term “substantial”: whether

the challenged regulations actually require plaintiffs to modify their behavior in a significant—or

more than de minimis—way. See Living Water Church of God , 258 Fed. App’x at 734-36

(reviewing cases); see also, e.g., Vision Church, 468 F.3d at 997; Garner v. Kennedy, 713 F.3d

237, 241-42 (5th Cir. 2013); Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338, 348-49

(2d Cir. 2007); Church of Scientology of Ga., Inc. v. City of Sandy Springs, Ga., 843 F. Supp. 2d

1328, 1353-54 (N.D. Ga. 2012). As plaintiffs the mselves appear to recognize, a “law

‘substantially burdens’ an exercise of religion if it com pels one ‘to perform acts undeniably at

odds with fundamental tenets of [one’s] re ligious beliefs,’” Pls.’ Br. at 6 (quoting Wisconsin v.

Yoder, 406 U.S. 205, 218 (1972)) (em phasis added), “or ‘put[s] substantial pressure on an

but what is cl ear is that self-in sured entities are subject to the same self-certification req uirement as th ird-partyinsured entities; they will use the same self-certification form, on which they will state o nly that they are nonprofit religious organizations with a religious objection to providing contraceptive coverage—nothing more. As discussed above, this self-certification requirement is, at most, a de minimis administrative burden that req uires no more of eligible entities—whether self-insured or third-party-insured—than what they would have to do anyway absent the challenged regulations.
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adherent to modify his behavior and violate his beliefs,’” id. (quoting Thomas, 450 U.S. at 71718) (emphasis added).9
Under plaintiffs’ alternative interpretation of RFRA, courts would play virtually no role in determining whether an alleged burden is “s ubstantial”—as long as a plaintiff’s religious belief is sincere, that woul d be the end of the inquiry. See Pls.’ Br. at 5. Plain tiffs would thus be allowed to evade RFRA’s thresho ld by sim ply asserting that the bur den on their religious exercise is “substantial,” thereby paradoxically reading the term “substantial” out of RFRA. See Gilardi, 926 F. Supp. at 282 (“[T]he Court declines to follow several recent cases suggesting that a plaintiff can m eet his burden of establishing that a law creates a ‘s ubstantial burden’ upon his exercise of religion simply because he claims it to be so.”); Autocam, 2012 WL 6845677, at *6 (“The Court does not doubt the sincerity of Plaintiff Kennedy’s decision to draw the line he does, but the Court still has a duty to assess whet her the claim ed burden—no m atter how sincerely felt—really amounts to a substantial burden on a person’s exercise of religion.”); see also Grote, 914 F. Supp. 2d at 949. “If every plaintiff were perm itted to unilaterally determ ine that a law burdened their religious beliefs, and courts were required to assume that such burden was substantial, simply because the plaintiff claimed that it was the case, then the standard expressed by Congress under the RFRA woul d convert to an ‘any burden’ standard.” Conestoga, 917 F. Supp. 2d at 413-14; see also Autocam, 2012 WL 6845677, at *7; Grote, 914 F. Supp. 2d at 952; Mersino, 2013 WL 3546702, at *16. 10 The result would be to subj ect every act of Congress to
9 In Hobby Lobby v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (en banc), a bare majority of the en banc Tenth Circuit concluded that, in determining whether a burden is sub stantial, a co urt’s “only task is to determine whether the claimant’s belief is si ncere, and if so, whether the government has applied substantial pressure on the clai mant to violate that belief.” Id. at 1137. The government believes that the majority’s ruling in Hobby Lobby was wrong on this and many other points. However, even if this Court were inclined to agree with the Tenth Circuit, the majority proceeded to rely on Abdulhaseeb v. Calbone, 600 F.3d 1301 (10th Cir. 2010), which makes clear that in order for a law to impose a su bstantial burden, it mu st require some actu al change in religious behavior—either forced participation in conduct or forced abstention from conduct. See Hobby Lobby, 723 F.3d at 1138 (citing Abdulhaseeb, 600 F.3d at 1315). The Hobby Lobby substantial burden analysis is also inapposite because for-profit corporations are not eligible for the accommodations. 10 RFRA’s legislative history makes clear that Congress did not intend such a relaxed standard. The initial version of RFRA prohibited the government from imposing any “burden” on free exercise, substantial or otherwise. Congress amended the bill to add the word “substantially,” “to make it clear that the compelling interest standards set forth in the act” apply “only to Government actions [that] place a substantial burden on the exercise of” religious liberty. 139
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strict scrutiny every tim e any plaintiff could arti culate a sincerely held religious objection to
compliance with that la w. The “most dem anding test known to constitutional law,” City of
Boerne v. Flores , 521 U.S. 507, 534 (1997), w ould thus be transform ed into a norm against which Congress must always legislate.11
For the reasons stated above, the regulati ons do not im pose a substantial burden on
plaintiffs’ religious exercise, a nd thus plaintiffs’ m otion for a preliminary injunction should be
denied, and plaintiffs’ RFRA clai ms (Count I of the Amended Complaint) should be dism issed
or summary judgment granted to defendants.
b. Even if the regulations were found to impose some more than de minimis burden on plaintiffs’ exercise of religion, any such burden would be far too attenuated to be “substantial” under RFRA
Although the regulations do not require plainti ffs to contract, arrange, pay, or refer for
contraceptive coverage, plaintiffs’ complaint appears to be that the regulations require plaintiffs
to indirectly facilitate conduct on the part of their employees that they find objectionable (i.e., the
use of certain contraceptives). But this complaint has no limits. An employer provides numerous
benefits, including a salary and ot her fringe benefits, to its em ployees and by doing so in som e
sense facilitates whatever use its employees make of those benefits. Plaintiffs not only seek to be
free from the requirement to contract, arra nge, pay, or refer for contraceptive coverage
themselves—which they are under these regulations —but also seek to prevent anyone else from
providing such coverage to their employees. But an employer has no right to control the choices
Cong. Rec. S14350-01, S14352 (daily ed. Oct. 26, 1993) (statement of Sen. Kennedy); see also id. (text of Amendment No. 1082). 11 Plaintiffs seem to recognize that this general imposition of strict scrutiny would be both doctrinally inappropriate and practically problematic. But it is no answer to blithely assert, as they do, that courts can prevent these problems by “screening claims for si ncerity.” Pls.’ Br. at 5. See Braunfeld, 366 U.S. at 606 (noting that we are a “cosmopolitan nation m ade up of people of almost every conceivable religious preference”); Autocam, 2012 WL 6845677, at *7 (“[Such a theory] would subject virtually every government action to a potential private veto based on a person’s ability to articulate a sincerely held objection tied in some rational way to a particular religious belief. Such a rule would paralyze the normal process of governing, and threaten to replace a generally uniform pattern of economic and social regulation with a patchwork array of theocratic fiefdoms. After all, almost every governmental decision involves policy choices. And religiously inclined pers ons can often since rely trace their pre ferred policy outcome to some religious and moral principle. . . . Applying RFRA in a way that permits the disappointed side simply to opt out because it tied its opposition to a religious or moral principle would be a reci pe for chaos, not a meaningful protection of religious liberty.”).
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of its em ployees, who m ay not share its religious beliefs, when m aking use of their benefits. Those employees have a legitimate interest in access to the preventive services coverage made available under the challenged regulations.
Indeed, courts have held that claim s raised b y for-profit com panies challenging the contraceptive coverage regulati ons, which require them to pr ovide the relevant coverage themselves, are too attenuated to amount to a substantial burden unde r RFRA. Any burden on plaintiffs, which are elig ible for the accommodations, is a fortiori too attenuated to be substantial. For example, the district court in Conestoga reasoned that the ultim ate decision of whether to use contraception “rests not with [the employer], but with [the] e mployees” and that “any burden imposed by the regulations is too at tenuated to be considered substantial.” 917 F. Supp. 2d at 414-15. The Conestoga district court further explained that the indirect nature of any burden imposed by the regulations distinguishe d them from the statu tes challenged in Yoder, Sherbert, Thomas, and Gonzales. See id. at 415. Other courts, too, have relied on sim ilar reasoning to reject similar plaintiffs’ RFRA claims. See, e.g., Autocam, 2012 WL 6845677, at *6 (“The incremental difference between providing the benefit directly, rather than indirectly, is unlikely to qualify as a substantial burden on the Autocam Plaintiffs.”); O’Brien, 894 F. Supp. 2d at 1158-60 (“[RFRA] is not a m eans to force on e’s religious practices upon others. RFRA does not protect against the slight burden on religi ous exercise th at arises when one’s m oney circuitously flows to support th e conduct of other free-exercise -wielding individuals who hold religious beliefs that differ from one’s own.”).12
As these courts concluded, the preventive services coverage regulations result in only an indirect impact on for-profit companies, which must provide contraceptive coverage themselves. Any burden on plaintiffs and sim ilar eligible organizations that qualify for the acco mmodations is even m ore attenuated. Not only are plaintiffs separated from the use of contraception by “a series of ev ents” that must occu r before the use of contraceptiv e services to whic h plaintiffs
12 See also Grote v. Sebelius, 708 F.3d 850 (7th Cir. 2013) (Rovner, J., dissenting); Eden Foods, 2013 WL 1190001 at *4; Annex Medical, 2013 WL 101927 at *4-*5; Grote, 914 F. Supp. 2d at 949-52.
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object would “come into play,” Conestoga, 917 F. Supp. 2d at 414-15, but they are also further insulated by the fact that a third party—plaintiffs’ issuers/TPAs—and not plaintiffs, will actually contract, arrange, pay, and refer for such services, and thus plaintiffs are in no way subsidizing— even indirectly—the use of prev entive services that they find objectionable. Under plaintiffs’ theory, their religious exercise is substantially burdened w hen one of their em ployees and her health care provider m ake an i ndependent determination that th e use o f certain co ntraceptive services is appropriate, and when such serv ices are paid for exclusiv ely by plain tiffs’ issuers/TPAs—with none of the cost being passe d on to plaintiffs—and no adm inistration of the payments by plaintiffs, solely be cause plaintiffs self-certified that they have religious objections to providing contraceptive coverage and so informed their issuers/TPAs.
But a burden sim ply cannot be “substantial” under RFRA when it is attenuated. Cases that find a substantial burden uniform ly involve a direct burden on the pl aintiff rather than a burden imposed on another entity. See, e.g., Potter v. Dist. of Columbia, 558 F.3d 542, 546 (D.C. Cir. 2009); see also Grote, 914 F. Supp. 2d at 951-52; Conestoga, 917 F. Supp. 2d at 413-14. A plaintiff cannot establish a substa ntial burden on his relig ious exercise by invoking this type of trickle-down theory; to c onstitute a substantial burden within the m eaning of RFRA, the burden must be imposed on the plaintiff himself. See Conestoga, 917 F. Supp. 2d at 411, 413; Korte v. U.S. Dep’t of Health & Human Servs. , 912 F. Supp. 2d 735, 748 (S.D. Ill. 2012), appeal pending, No. 12-3841 (7th Cir.); Autocam, 2012 WL 6845677, at *7; Grote, 914 F. Supp. 2d at 950-51.13 Here, of course, there is no such direct burden. In fact , given that any paym ent for
13 Thomas is not to the contrary. In Thomas, the Suprem e Court recognized that “a compulsion may certainly be indirect and still constitute a substantial burden, such as the denial of a benefit found in Thomas.” Conestoga, 917 F. Supp. 2d at 415 n.15. But that is not so where the burden itself is indirect, as it is here. See id.; Gilardi, 926 F. Supp. 2d at 283. As previously explained, in Hobby Lobby, 723 F.3d 1114, a bare majority of the en banc Tenth Circuit concluded that the word “substantial” in RFRA refers to the “intensity of coercion” rather than to the directness or indirectness of the burden, if any, on a plaintiff’s religious exercise. Id. at 1137-40. The Tenth Circuit’s conclusion that the substantial burden requirement relates to the intensity of the coercion, however, is in consistent with Kaemmerling, discussed above, as well as other decisions that have analyzed “substantial burden” in terms of the degree to which the challenged law directly imposes a requirement or prohibition on religious practice. See 553 F.3d at 678-79; Living Water Church of God, 258 F. App’x at 734; McEachin, 357 F.3d at 203 n.6; Civil Liberties for Urban Believers, 342 F.3d at 761. And, again, the Hobby Lobby substantial burden analysis is inapplicable to this case. See supra note 9.
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contraceptive services is made by plaintiffs’ issuers/TPAs, the regulations have even less impact on plaintiffs’ religious exercise than plaintiffs’ paym ent of salaries to their em ployees, which those employees can use to purchase contraceptives. See O’Brien, 894 F. Supp. 2d at 1160; see also Conestoga, 917 F. Supp. 2d at 414 (“The f act that Conestoga’s employees are free to look outside of their insurance coverage and pay for and use any contra ception . . . through the salary they receive from Conestoga, amply illustrates this point.”); Grote, 708 F.3d at 861 (Rovner, J., dissenting) (“To the extent this burdens the Grotes’ religious interests, it is wor th considering whether the burden is different in kind from th e burden of knowing that an e mployee might be using his or her Grote Industries paycheck (or money in a health care reimbursement account) to pay for contraception him or herself.”); Autocam, 2012 WL 6845677, at *6.
Plaintiffs remain free t o refuse t o contract, arrange, pay, or refer for contraceptive coverage; to voice their disapproval of contra ception; and to encourage their employees t o refrain from using contraceptive services. The preventive services coverage regulations therefore affect plaintiffs’ relig ious practice, if at all, in a highly attenuated way. In short, because th e preventive services co verage regulations “are several degrees rem oved from imposing a substantial burden on [plaintiffs],” O’Brien, 894 F. Supp. 2d at 1160, the Court should dism iss plaintiffs’ RFRA claim, or grant summary judgment to defendants, even if it finds—contrary to the government’s argument—that the challenged re gulations impose some burden on plaintiffs’ religious exercise.
2. Even if there w ere a substantial burden on religious exercise, the regulations serve compelling governmental interests and are the least restrictive means to achieve those interests a. The regulations significantly advance compelling govern mental interests in public health and gender equality
Even if plaintiffs were able to de monstrate a substantial burden on their religious exercise, they would not prevail because th e challenged regulations are justified by two compelling governmental interests, and are the leas t restrictive means to achieve those interests. First, the promotion of public health is unquestionably a compelling governmental interest. Mead
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v. Holder, 766 F. Supp. 2d 16, 43 (D.D.C. 2011); see also, e.g., Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487, 498 (10th Cir. 1998); Dickerson v. Stuart, 877 F. Supp. 1556, 1559 (M.D. Fla. 1995). And the challenged regu lations further this compelling interest by “expanding access to and utilization of recomm ended preventive services for wom en.” 78 Fed. Reg. at 39,887, AR at 19.
The primary predicted benefit of the preventi ve services coverage regulations is that “individuals will experience im proved health as a result of reduced tran smission, prevention or delayed onset, and earlier treatment of disease.” 75 Fed. Reg. 41,726, 41,733 (July 19, 2010), AR at 233; see also 77 Fed. Reg. at 8728, AR at 215; 78 Fed. Reg. at 39,872, 39,887, AR at 4, 19. “By expanding coverage and eliminating cost sharing for recommended preventive services, [the regulations are] expected to increas e access to and utilization of these services, which are no t used at optim al levels today.” 75 Fed. Reg. at 41,733, AR at 233; 78 Fed. Reg. at 39,873 (“Research [ ] shows that cost sharing can be a significan t barrier to access to con traception.” (citation omitted)), AR at 5.14
Increased access to the full range of FDA-approved contraceptive services is a key part of these predicted health outcom es, as unintended pregnancies have proven in m any cases to have negative health consequences for women and developing fetuses. See 78 Fed. Reg. at 39,872, AR at 4. As IOM concluded in identifying services recommended to “prevent conditions harmful to women’s health and well-being,” unintended pre gnancy may delay “entry into prenatal care,” prolong “behaviors that present risks for the de veloping fetus,” and cause “depression, anxiety, or other conditions.” IOM REP. at 20, 103-04, AR at 318, 401-02. Contraceptive coverage further helps to avo id “the in creased risk of adverse pregnancy outcomes for pregnancies that are too closely spaced.” Id. at 103, AR at 401; see also 78 Fed. Reg. at 39,872 (“Short interpregnancy intervals in particular h ave been as sociated with low birth weight, pr ematurity, and s mall-for-
14 Plaintiffs miss the point, therefore, when they attempt to minimize the magnitude of these interests by arguing that the contraceptive methods to which they object are “widely available.” See Pls.’ Br. at 9. Although a majority of employers cover FDA-approved contraceptives, see IOM REP. at 109, AR at 407, many women forgo preventive services because of cost-s haring imposed by their health plans, see id. at 1 9-20, 109, AR at 3 17-18, 407. The challenged regulations eliminate that cost-sharing. 78 Fed. Reg. at 39,873, AR at 5.
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gestational age births.” ) (citing studies), AR at 4. And “[c]ontracep tives also h ave medical benefits for wom en who are co ntraindicated for pregnancy, and there are demonstrative preventive health benefits from contraceptives relating to co nditions other than p regnancy (for example, prevention of certain cancers, m enstrual disorders, and acne.” 78 Fed. Reg. at 39,872, AR at 4; see also IOM Rep. at 103-04 (“[P]regnancy m ay be contraindicated for wom en with serious medical conditions such as pulm onary hypertension . . . and cyanotic hea rt disease, and for women with the Marfan Syndrome.”), AR at 401-02.
Closely tied to this interest is a related, but separate, compelling interest that is furthered by the regulations: assuring that women have equal access to hea lth care services. 78 Fed. Reg. at 39,872, 39,887, AR a t 4, 19. As the Suprem e Court explained in Roberts v. U.S. Jaycees, 468 U.S. 609 (1984), there is a fundam ental “importance, both to the individual and to society, of removing the barriers to econom ic advancement and political and social integration that have historically plagued certain disa dvantaged groups, including wom en.” Id. at 626. Thus, “[a]ssuring women equal access to . . . goods, privileges, and advantages clearly furthers compelling state interes ts.” Id. By including in the ACA gende r-specific preventive health services for wom en, Congress m ade clear that th e goals and benefits of effective preventive health care apply equally to women, who might otherwise be excluded from such benefits if their unique health care needs were not taken into acc ount in the ACA. As ex plained by members of Congress, “women have different health need s than m en, and these needs often generate additional costs. Women of childbearing age spend 68 percent more in out-of-pocket health care costs than men.” 155 Cong. Rec. S12106-02, S12114 (da ily ed. Dec. 2, 2009) (s tatement of Sen. Feinstein); 78 Fed. Reg. at 39,887, A R at 19; IO M REP. at 19, AR at 31 7. These costs result in women often forgoing preventive care and place wom en in the workforce at a disadvantag e compared to their male coworkers. See, e.g., 155 Cong. Rec. S12265-02, S12274 (daily ed. Dec. 3, 2009) (statement of Sen. Murray); 78 Fed. R eg. at 39,887, AR at 19; IOM R EP. at 20, AR at 318. Congress’s attem pt to equalize the provision of preventive health ca re services, with the resulting benefit of wom en being able to contribute to the same degree as m en as healthy and
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productive members of society, fu rthers a co mpelling governmental interest. Cf. Catholic
Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67, 92-93 (Cal. 2004).15
Although the challenged regulations further these two compelling governmental interests,
while simultaneously accommodating the religious objections of eligible organizations, plaintiffs
maintain that the inte rests underlying the regulations cannot be considered com pelling when
millions of people are not protected by the regu lations at the moment. Pls.’ Br. at 8. But this is
not a case where underinclusive enforcem ent of a law suggests that the governm ent’s
“supposedly vital interest” is not really com pelling. Church of the Lukumi Babalu Aye, Inc. v.
City of Hialeah, 508 U.S. 520, 546-47 (1993). Many of the “exemptions” referred to by plaintiffs
are not exemptions from the preventive s ervices coverage regulations at all, but are instead
provisions of the ACA that exclude individuals and entities from other requirements imposed by
the ACA. Or they ref lect the go vernment’s attempts to balance th e compelling interests
underlying the challenged regulations against othe r significant interests supporting the com plex
administrative scheme created by the ACA. See Lee, 455 U.S. at 259 (“The Court has long
15 In arguing that the government’s interests are not compelling, plaintiffs suggest the government must separately analyze the impact of and ne ed for the regulations as to each and every employer and employee in America. See Pls.’ Br. at 8. But this level of specificity would be impossible to establish and would render this regulatory scheme—and potentially every regulatory scheme that is challenged due to religious objections—completely unworkable. See United States v. Lee , 455 U.S. 252, 259-60 (1982). In practice, courts have not required the government to analyze the impact of a regulation on the single entity seeking an exemption, but have conducted the inquiry with respect to all similarly situated individuals or organizations. See, e.g., id. at 260 (considering the impact on the tax system if all religious adherents—not just the plaintiff—could opt out); United States v. Oliver, 255 F.3d 588, 589 (8th Cir. 2001) (per curiam) (“Oliver has argued a one-man exemption should be made, however, there is nothing so peculiar or special with Oliver’s situation which warrants an exce ption. There a re no safeguards to prevent similarly situated individuals from assertin g the same privilege and leading to uncontrolled eagle harvesting.”); Dole v. S henandoah Baptist Church, 899 F.2d 1389, 1398 (4th Cir. 1990) (“There is n o principled way of exempting the school without exempting all other sectarian schools and thereby the thousands of lay teachers and staff members on their payrolls.”); see also, e.g. , Graham v. Comm’r, 822 F.2d 8 44, 853 (9th Cir. 1987), overruled in part on other grounds by Navajo Nation v. U.S. Forest Serv., 479 F.3d 1024, 1033 (9th Cir. 2007) (en banc); United States v. Winddancer, 435 F. Supp. 2d 687, 697 (M.D. Tenn. 2006). Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 435 (2006), is not to the contrary. To be sure, the Court rejected “slipperyslope” arguments for refusing to accommodate a particular claimant. See 546 U.S. at 435-36. But it construed the scope of the requested exemption as e ncompassing all members of the plaintiff religious sect. See id. at 433. Similarly, the exemption in Yoder, 406 U.S. 205, encompassed all Amish children; and the exemption in Sherbert v. Verner, 374 U.S. 398 (1963), encompassed all individuals who had a religious objection to working on Saturdays. See O Centro, 546 U.S. at 431. The Court’s warning in O Centro against “slippery-slope” arguments was a rejection of arguments by analogy—that is, speculation that providing an exemption to one group will lead to exemptions for other non-similarly situated groups. It was not an invitation to ignore the reality that an exemption for a particular claimant might necessarily lead to an exemption for an entire category of similarly situated entities.
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recognized that balance must be struck between the valu es of the com prehensive social security system, which rests on a com plex of actuarial factors, and the con sequences of allowing religiously based exemptions.”); Winddancer, 435 F. Supp. 2d at 695-98 (recognizing that the regulations governing access to eagle parts “strik e a delicat e balance” between competing interests). And the existing exceptions do not undermine the governm ent’s interests in a significant way. See Lukumi, 508 U.S. at 547; S. Ridge B aptist Church v. Indus. Comm’n of Ohio, 911 F.2d 1203, 1208-09 (6th Cir. 1990) (rejectin g the plaintiff’s ar gument that the existence of exem ptions indicates that a law is not the lea st restrictive means of achieving a compelling interest where the exem ptions do not undermine that interest); see also 78 Fed. Reg. at 39,887, AR at 19.
For example, the grandfathering of certain hea lth plans with respect to certain provisions of the ACA is not sp ecifically limited to the p reventive services coverage regulations. See 42 U.S.C. § 18011; 45 C.F.R. § 147.140. In fact, the effect of grandfathering is not really a permanent “exemption,” but rather, over the long term, a transition in the m arketplace with respect to several provisions of the ACA, incl uding the preventive servi ces coverage provision. See 78 Fed. Reg. at 39,887 n.49, AR at 19. The gra ndfathering provision reflects Congress’s attempts to balance competing interests—specifically, the interest in spreading the benefits of the ACA, including those provided by the preventive serv ices coverage provision, and the interest in maintaining existing c overage and easing the transition into the new regulatory regime established by the ACA—in the context of a complex statutory scheme. See 75 Fed. Reg. 34,538, 34,546 (June 17, 2010).
This incremental transition does no thing to call into question the compelling interests furthered by the p reventive services coverag e regulations. Even unde r the grandfathering provision, it is projected that more group health plans will tr ansition to the requirements under the regulations as time goes on. Defendants have estimated that a majority of group health plans will have lo st their gran dfather status by the end of 2013. See id. at 34,552; see also Kaiser Family Foundation and Health Research & Educa tional Trust, Em ployer Health Benefits 2012
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Annual Survey at 7-8, 190 (indicating that 58 per cent of firm s had at l east one grandfathered health plan in 2012, down from 72 percent in 2011, and that 48 percent of covered workers were in grandfathered health plans in 2012, down from 56 percent in 2011), AR at 663-64, 846. Thus , any purported adverse effect on the com pelling interests underlying the regulatio ns will be quickly mitigated, which is in s tark contrast to the permanent exemption plaintiffs seek. Plaintiffs would have this Court b elieve that an interest cannot tru ly be “com pelling” unless Congress is willing to impose it on everyone all at once despite competing interests, but plaintiffs offer no support for such an untenable proposition. See Legatus v. Sebelius, 901 F. Supp. 2d 980, 994 (E.D. Mich. 2012) (“[T]he gra ndfathering rule seems to be a reasonable plan for instituting an incredibly complex health care law while balancing competing interests.”).
Moreover, 26 U.S.C. § 4980H(c)(2) does not, as plaintiffs claim, exempt small employers from the preventive services coverage regulations. See 42 U.S.C. § 300gg-13(a); 78 Fed. Reg. at 39,887 n.49, AR at 19. Instead, it excludes em ployers with fewer than fifty full-tim e equivalent employees from the employer responsibility provision, meaning that, starting in 2015, such employers are not subject to the possibility of a ssessable payments if they do not provide health coverage to their full-time employees and their dependents. See 26 U.S.C. § 4980H(c)(2). Small businesses that do offer non-grandfathered health coverage to their em ployees are required to provide coverage for recomm ended preventive services, including c ontraceptive services, without cost-sharing. 78 Fed. Reg. at 39,887 n.49, AR at 19. And there is reason to believe that small employers will co ntinue to of fer health coverage to their em ployees, because the ACA, among other things, provides tax incentives for small businesses to encourage the purchase of health insurance. See 26 U.S.C. § 45R. But even if a s mall business were to choose not to offer health coverage, em ployees of such business could ge t health insurance coverage that is facilitated by other ACA provisions—prim arily those establishing both sm all group market and individual market health insurance exchanges and those establishing tax credits to m ake the purchase of coverage through such exchanges mo re affordable—and the c overage they receive
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through such exchanges will include coverage of all recommended preventive services, including contraception. 78 Fed. Reg. at 39,887 n.49, AR at 19.
The only true exem ption from the preventive services coverage regulations is the exemption for the group health plans of religious employers. 45 C.F.R. § 147.131(a). But there is a rational distinction between this narrow exception and the expansion plaintiffs seek. Houses of worship and their in tegrated auxiliaries that object to contraceptive coverage on religious grounds are, as a group, m ore likely than other employers to e mploy people of the sa me faith who share the sam e objection, and who would theref ore be less likely than other people to use contraceptive services even if such se rvices were covered under their plan. See 78 Fed. Reg. at 39,874, 39,877, AR at 6, 19. In any event, it would be perverse to hold that the governm ent’s provision of a lim ited religious exemption eliminates its compelling interest in the regulation, thus effectively extending the same exemption to anyone else who wants it under RFRA. Such a reading of RFRA woul d discourage the governm ent from accommodating relig ion, the exac t opposite of what Congress intended to accomplish in enacting RFRA.
Granting plaintiffs the m uch broader exemption they request w ould undermine defendants’ ability to en force the regulations in a rational manner. See Gonzales v. O Centro Espirita Beneficente Uniao Do Ve getal, 546 U.S. 418, 435 (2006). We are a “cosm opolitan nation made up of people of almost every conceivable religious preference,” Braunfeld, 366 U.S. at 606; see also S. Ridge Baptist Church , 911 F.2d at 1211, and m any people object to various medical services. If any organization with a religious objection were able to claim an exemption from the operation of th e preventive services coverage regulations—even where the regulations require virtually nothing of the organizatio n—it is dif ficult to se e how defendants could administer the regulations in a m anner that would achieve Congress’s goals of improving the health of wom en and newborn children and equa lizing the coverage o f preventive services for women. See United States v. Israel , 317 F.3d 768, 772 (7th Cir. 2003) (recognizing that plaintiff’s RFRA logic “would l ead to significant adm inistrative problems for the [governm ent] and open the door to a . . . proliferation of cl aims”). Indeed, wom en who receive their health
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coverage through employers like plaintiffs would face negativ e health and other outcom es because they had obtained employment with an organization that objects to its employees’ use of contraceptive services, even when those servic es are paid for, adm inistered, and otherwise provided by a third party. See id. (noting consequences “for the public and the government”); 77 Fed. Reg. at 8728, AR at 215; 78 Fed. Reg. at 39,887, AR at 19.
b. The regulations are the least re strictive means of advancing the government’s compelling interests
When determining whether a particular regulato ry scheme is the “least res trictive,” the appropriate inquiry is whether the individual or organization with religious objections, and those similarly situated, can be exempted from the scheme—or whether the schem e can otherwise be modified—without undermining the government’s compelling interests. See, e.g., United States v. Schmucker, 815 F.2d 413, 417 (6th Cir. 1987) (describing the least restrictive m eans test as “the extent to which accommodation of defendant would im pede the state’s objectives”); United States v. Wilgus, 638 F.3d 1274, 1289-95 (10th Cir. 2011). Th e government is not required “to do the im possible—refute each and every conc eivable alternative regulation s cheme.” Wilgus, 638 F.3d at 1289. Instead, the governm ent need only “refute the alternative schem es offered by the challenger.” Id.
Instead of explaining how plaintiffs and sim ilarly situated eligible organizations could be exempted from the regulations without significant dam age to the governm ent’s compelling interests, plaintiffs conjure up, without any statutory support, several brand ne w statutory and regulatory schemes—most of which would requi re the governm ent to pay for contraceptive coverage—that they claim would be less restrictive. See Pls.’ Br. at 10. Yet plaintiffs fail t o recognize that such alternatives would be incom patible with the fundame ntal statutory schem e set forth in the ACA, which plaintif fs do not challenge in this lawsuit. Congress did not adopt a single (government) payer system financed th rough taxes and instead opted to build on the existing system of e mployment-based coverage. See H.R. Rep. No. 111-443, pt. II, at 984-86 (2010). Plaintiffs point to no statutory authority for any of their proffered less restrictive
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alternatives. Nor is there any indication that Congress would ha ve contemplated that agency action could be invalidated under RFRA bec ause the agency, in discharging its statutorily delegated authority, failed to adopt an alternative scheme for which it lacked statutory authority. Thus, even if defendants wanted to adopt one of plaintiffs’ non-employer-based alternatives, they would be constrained by the statute from doing so. See 78 Fed. Reg. at 39,888, AR at 20.
Furthermore, plaintiffs themselves indicate that they “in no way recommend [their proposed] alternatives, and, indeed, m ight oppose many of them as a matter of policy.” Pls.’ Br. at 10. Indeed, as noted above, it is not clear why the governm ent’s provision of contraceptive coverage to women based upon their employer’s objection to providing it would not be subject to exactly the sam e RFRA claim that plaintiffs advance here. By their own admission then, plaintiffs’ proposals would do little—if anythi ng—to satisfy their religious objections, and therefore should not be c onsidered viable less restrictive alternatives. See New Life Baptist Church Acad. v. Town of E. Longmeadow , 885 F.2d 940, 950-51 (1st Ci r. 1989) (Breyer, J.) (considering the lim ited extent to which an alterna tive would alleviate a re ligious burden in rejecting it as a “less restrictive alternative,” even though the plaintiff had expressed a preference for the alternative over the ch allenged requirements). An eligible org anization’s objection to providing or paying for contracepti ve coverage would still “facili tate” its ava ilability—in this case, by the government—and the eligible organization would likely be called upon to verify or certify matters such as the non-provision of c ontraceptive coverage, and e mployment or plan beneficiary status.
Finally, even if plaintiffs w ould be satisfied by their proposed alternatives, just because plaintiffs can devise an entire ly new legislative and adm inistrative scheme does not m ake that scheme a feasible less restrictive means, see Wilgus, 638 F .3d at 1289; Adams v. Comm’r of Internal Revenue, 170 F.3d 173, 180 n.8 (3d Cir. 1999) (“ A judge would be unim aginative indeed if he could not co me up with something a little less ‘drastic’ or a little less ‘restrictive’ in almost any situation, and thereby enable himself to vote to strike legisl ation down.’” (quotations omitted)), particularly where such alternatives would co me at enormous adm inistrative and
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financial cost to the government. A proposed alternative scheme is not an adequate alternative— and thus not a viable les s restrictive means to achieve a compelling interest—if it is not feasible. See, e.g., New Life Baptist, 885 F.2d at 947; Graham, 822 F.2d at 852. In determ ining whether a proposed alternative scheme is feasible, courts of ten consider the additional adm inistrative and fiscal costs of the schem e. See, e.g., S. Ridge Baptist Church , 911 F .2d at 1206; Fegans v. Norris, 537 F.3d 897, 905-06 (8th Cir. 2008); United States v. Lafley, 656 F.3d 936, 942 (9th Cir. 2011); New Life Baptist, 885 F.2d at 947. Defendants consider ed plaintiffs’ alternatives and determined that they w ere not feasible becau se the agen cies lacked statutory authority to implement them, they would i mpose considerable new costs and other burdens on the government, and they would otherwise be impractical. See 78 Fed. Reg. at 39,888, AR at 20; see also, e.g., Lafley, 656 F .3d at 942; Gooden v. Crain , 353 F. App’x 885, 888 (5th Cir. 2009); Adams, 170 F.3d at 180 n.8.
Nor would the proposed alternatives be equa lly effective in advancing the government’s compelling interests. See 78 Fed. Reg. at 39,888, AR at 20; see also, e.g. , Kaemmerling, 553 F.3d at 684 (finding that m eans was least restrictive where no a lternative means would achieve compelling interests); Murphy v. State of Ark. , 852 F.2d 1039, 1042-43 (8th Cir. 1988) (sam e). As discussed above, Congress determ ined that th e best way to achieve the goals of the ACA, including expanding preventive services coverage , was to build on the existing em ployer-based system, and the anticipated benefits of the regulations are attribut able not only to the fact that recommended contraceptive services will be available to women with no cost-sharing, but also to the fact that these services will be available through the exis ting employer-based system of health coverage through which women will f ace minimal logistical and a dministrative obstacles to receiving coverage of their care. Plaintiffs ’ alternatives, by contrast, have none of these advantages. They would require establis hing entirely new governm ent programs and infrastructures or fundam entally altering an ex isting one, and would a lmost certainly require women to take burdensom e steps to find out a bout the availability of and sign up for a new benefit, thereby ensuring that fewe r women would take advantage of it. See 78 Fed. Reg. at
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39,888, AR at 20. Nor do plaintiffs offer any sugge stion as to how these program s could be integrated with the em ployer-based system or how wom en would obtain governm ent-provided preventive services in practice. Thus, plain tiffs’ proposals—in additi on to raising m yriad administrative and logistical difficulties and being unauthorized by any statute and not funded by any appropriation—are less likely to achieve the co mpelling interests furthered by the regulations, and therefore do not represent reasonable less restrictive means. Id.
Because plaintiffs have failed to put forth vi able less restrictive alternatives that would achieve the government’s compelling interests, the Court should reject plain tiffs’ argument that the regulations fail strict scrutiny.
B. The Regulations Do Not Violate the Free Exercise Clause The Supreme Court has made clear that a la w that is neutral and generally applicable does not run afoul of the Free Exercise Clause even if it prescribes cond uct that an individual’s religion proscribes or has the incidental effect of burdening a particular religious practice. Empt. Div., Dep’t of Human Res. of Or. v. Smith , 494 U.S. 872, 879 (1990); see also Lukumi, 508 U.S. at 531-32. “Neutrality and general applicability are interrelated.” Lukumi, 508 U.S. at 531. A law is neutral if it does not target religiously motivated conduct either on its face or as ap plied. Id. at 533. A neutral law has as its purpose som ething other than the disapproval of a particular religion, or of religion in general. Id. at 545. A law is generally app licable so long as it does not selectively impose burdens only on conduct motivated by religious belief. Id. Unlike such selective laws, the preventive se rvices coverage regulations are neutral and generally applicable. Indeed, nearly every court to have consid ered a free exercise challeng e to the prior version of the regulations has rejected it, concluding that the regulations are neutral and generally applicable.16 “The regulations were passed, not with the object of interfering with
16 See MK Chambers, 2013 WL 1340719, at *5; Eden Foods, 2013 WL 1190001, at *4-5; Conestoga, 917 F. Supp. 2d at 409-10; Grote, 914 F. Supp. 2d at 952-53; Autocam, 2012 WL 6845677, at *5; Korte, 912 F. Supp. 2d at 74447; Hobby Lobby Stores, Inc. v. Se belius, 870 F. Supp. 2d 1278, 1289-90 (W.D. Okla. 2012), rev’d on ot her grounds, 2013 WL 3216103; O’Brien, 894 F. Supp. 2d at 1160-62; see also Catholic Charities of Diocese of Albany v. Serio, 859 N.E.2d 459, 468-69 (N.Y. 2006) (rejecting similar challenge to state law); Catholic Charities of Sacramento, 85 P.3d at 81-87. But see Sharpe Holdings, Inc. v. HHS, No. 2:12-CV-92-DDN, 2012 WL 6738489, at
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religious practices, but instead to improve women’s access to health care and lessen the disparity between men’s and wom en’s healthcare costs.” O’Brien, 894 F. S upp. 2d at 1161. The regulations reflect expert medical recommendations about the medical necessity of contraceptive services, without regard to any religious m otivations for or against such services. See, e.g., Conestoga, 917 F. Supp. 2d at 410 (“It is clear from the history of the regulations and the report published by the Institute of Medi cine that the purpose of the [r egulations] is n ot to ta rget religion, but instead to prom ote public health and gender equality.”); Grote, 914 F. Supp. 2d at 952-53 (“[T]he purpose of the regulations is a secu lar one, to wit, to promote public health and gender equality.”).
The regulations, moreover, do not pursue their purpose “only agai nst conduct motivated by religious belief.” Lukumi, 508 U.S. at 545; see United States v. Amer, 110 F.3d 873, 879 (2d Cir. 1997) (concluding law that “punishe[d] conduc t within its reach wit hout regard to whether the conduct was religiously m otivated” was generall y applicable). The regulations apply to all non-grandfathered health plans that do not qualif y for the religious employer exem ption or the accommodations for eligible organizations. Thus, “it is just not true . . . that the burdens of the [regulations] fall on religious orga nizations ‘but almost no others.’” Am. Family Ass’n v. FCC, 365 F.3d 1156, 1171 (D.C. Cir. 2004) (quoting Lukumi, 508 U.S. at 536); see O’Brien, 894 F. Supp. 2d at 1162; Autocam, 2012 WL 6845677, at *5; Grote, 914 F. Supp. 2d at 953.
The existence of express exceptions or accommodations for objectively defined categories of entities, like grandf athered plans, religious employers, and eligible organizations, “does not mean that [the regula tions do] not apply generally.” Autocam, 2012 WL 6845677, at *5. “General applicability does not mean absolute universality. ” Olsen v. Mukasey , 541 F.3d 827, 832 (8th Cir. 2008); accord Axson-Flynn v. Johnson, 356 F.3d 1277, 1298 (10th Cir. 2004); Am. Friends Serv. Comm. Corp. v. Thornburgh , 951 F.2d 957, 960-61 (9th Cir. 1991) (concluding employer verification statute was generally appli cable even though it exem pted
*5 (E.D. Mo. Dec. 31, 2012); Geneva Coll. v. Sebel ius, No. 2:12–cv–00207, 2013 WL 838238, at * 24-26 (W.D. Penn. Mar. 6, 2013).
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independent contractors, household em ployees, and employees hired prior to November 1986 because exemptions “exclude[d] entire, o bjectively-defined categories of em ployees”); Intercommunity Ctr. for Justice & Peace v. INS, 910 F.2d 42, 44 (2d Cir. 1990) (same). “Instead, exemptions undermining ‘general applicability’ are those tending to suggest disfavor of religion.” O’Brien, 894 F. Supp. 2d at 1162. The exception for grandfathered plans is available on equal term s to all em ployers, whether religi ous or secular. And the religious employer exemption and elig ible organization accommodations serv e to accom modate religion, not to disfavor it. Id.; see also Conestoga , 917 F. Supp. 2d at 410 (“The fact that exem ptions were made for religious em ployers . . . . shows that the gov ernment made efforts to a ccommodate religious beliefs, which counsels in favor of the regulations’ neutrality.”); Grote, 914 F. Supp. 2d at 953 (“[C]arving out an exem ption for defi ned religious entities . . . tends to support an argument in favor of neutrality. ”). Indeed, the religious employer exemption “presents a strong argument in favor of neutrality” by “demonstrating that the object of the law was not to infringe upon or restrict practices because of their religious m otivation.” O’Brien, 894 F. Supp. 2d at 1161 (quotations om itted). The reg ulations are not rendered unlawful “m erely because the [religious employer exemption] does not extend as far as Plaintiffs wish.” Grote, 914 F. Supp. 2d at 953. Thus, these categorical exceptions and accommodations do not trigger strict scrutiny.
Finally, Plaintiffs’ unsupported assertions that the regulations were “designed” to “target the Schools and others like them ,” and that defendants promulgated the regulations “in order to suppress the religious exercise of the Schools and others,” Am . Compl. ¶ 233-34, are m ere rhetorical bluster. There is no indication that the regulations are anything ot her than an effort to increase women’s access to and utilizati on of recommended preventive services. See O’Brien, 894 F. Supp. 2d at 1161; Conestoga, 917 F. Supp. 2d at 410; Grote, 914 F. Supp. 2d at 952-53. And it cannot be disputed that defendants have made extensive efforts—through the religious employer exemption and the eligible organization accommodations—to accommodate religion in
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ways that will not un dermine the goal of ensu ring that women have access to coverage fo r recommended preventive services without cost sharing.17
For these reasons Count II fails. C. The Regulations Do Not Violate the Establishment Clause “The clearest command of the Esta blishment Clause is th at one re ligious denomination cannot be officially preferred over another.” Larson v. Valente , 456 U.S. 228, 244 (1982) (emphasis added). A law that discrim inates among religions by “aid[ing] one r eligion” or “prefer[ring] one religion over anothe r” is subject to strict scrutiny. Id. at 246; see also Olsen v. DEA, 878 F.2d 1458, 1461 (D.C. Cir. 1989) (observing that “[a] statutory exemption authorized for one church alone, and for which no other c hurch may qualify,” creates a “den ominational preference”). Thus, for exam ple, the Supreme Court has struck down on Establishm ent Clause grounds a state statute that was “d rafted with the explicit inte ntion” of requiring “particular religious denominations” to comply with registration and reporting requirements while excluding other religious denominations. Larson, 456 U.S. at 254; see also Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet , 512 U.S. 687, 703-07 (1994) (striking down statute that created special school district for religious enclave of Satm ar Hasidim because it “singl e[d] out a particu lar religious sect for specia l treatment”). The Court, on the ot her hand, has upheld a statute that provided an exemption from military service for persons who had a conscientious objection to all wars, but not those who objected to only a particular war. Gillette v. United States, 401 U.S. 437 (1971). The Court explained that the statu te did not discriminate among religions because “n o particular sectarian affiliation” was require d to qualify for conscien tious objector status. Id. at 450-51. “[C]onscientious objector status was availa ble on an equal basis to both the Quaker and the Roman Catholic.” Larson, 456 U.S. at 247 n.23; see also Cutter v. Wilkinson, 544 U.S. 709, 724 (2005) (upholding RLUIPA a gainst Establishment Clause challenge because it did not
17 Even if the regulations were not neutral or generally applicable, plaintiffs’ free exercise challenge still would fail because the regulations satisfy strict scrutiny. See supra.
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“confer[] . . . privileged status on any particular religious sect” or “single[] out [any] bona fide

faith for disadvantageous treatment”).

Like the statutes at is sue in Gillette and Cutter, the preventive s ervices coverage

regulations do not grant any de nominational preference or ot herwise discriminate among

religions. It is of no mom ent that the religious employer exemption and accommodations for

eligible organizations apply to some employers but not others. “[T]he Establishment Clause does

not prohibit the government from [differentiating between organizations based on their structure

and purpose] when granting religious accommodations as long as the distinction[s] drawn by the

regulations . . . [are] not ba sed on religious affiliation.” Grote, 914 F. Supp. 2d at 954; accord

O’Brien, 894 F. Supp. 2d at 1163; see also, e.g., Children’s Healthcare Is a Legal Duty, Inc. v.

Min De Parle, 212 F.3d 1084, 1090-93 (8th Cir. 2000); Droz v. Comm’r of IRS , 48 F.3d 1120,

1124 (9th Cir. 1995) (concluding that religious exem ption from self-employment Social Security

taxes did not violate the Establishment Clause even though “some individuals receive

exemptions, and other individuals with identical beliefs do not”); Catholic Charities of the

Diocese of Albany , 859 N.E.2d at 468-69 (“This ki

nd of distinctio n—not between

denominations, but between religious organizations based on the nature of their activities—is not

what Larson condemns.”). Here, the distinctions established by the regulations are not so drawn.

The regulations’ definitions of religious em ployer and eligible organization “do[] not

refer to any particular denom ination.” Grote, 914 F. Supp. 2d at 954. The exemption and

accommodations are av ailable on a n equal bas is to o rganizations affiliated with a ny and a ll

religions. The regulations, therefore, do not di scriminate among religions in violation of the

Establishment Clause. Indeed, every court to have considered an Establishment Clause challenge

to the prior version of the regul ations—which also included a requirement that the organization

be an organization as described in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code

of 1986, as am ended—has rejected it. See, e.g., O’Brien, 894 F. Supp. 2d at 1162 (upholding

prior version of religious employer exemption because it did “not differentiate between religions,

but applie[d] equally to all denom inations”); Conestoga, 917 F. Supp. 2d at 416-17 (sam e);

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Grote, 914 F. Supp. 2d at 954 (same); see also Liberty Univ., Inc. v. Lew , __ F.3d__, 2013 W L 3470532, at *17-18 (4th Cir. July 11, 2013) (upholding another religious exemption contained in the ACA against an Establishm ent Clause challenge because the exemption “makes no explicit and deliberate distinctions between sects” (quotation omitted)).
“As the Suprem e Court has frequently articu lated, there is space betw een the religion clauses, in which there is ‘room for play in the joints;’ governm ent may encourage the free exercise of religion by granti ng religious acco mmodations, even if not required by the Free Exercise Clause, without running afoul of the Establishm ent Clause.” O’Brien, 894 F. Supp. 2d at 1163 (citations om itted). Accommodations of religion are poss ible because the type of legislative line-drawing to which th e plaintiffs object in this case is cons titutionally permissible. Id.; Conestoga, 917 F. Supp. 2d at 417; see, e.g., Walz v. Tax Commission of New York, 397 U.S. 664, 672-73 (1970) (upholding property tax exem ption “to religious organizations for religious properties used solely for religious worship”); Corp. of the Presiding Bishop v. Amos , 483 U.S. 327, 334 (1987) (upholding Title VII’s exem ption for religious organizations).18 For all of these reasons, Count III fails.19
D. The Regulations Do Not Violate the Right to Free S peech or Expressive Association Plaintiffs’ free speech claims fare no better. The right to freedom of speech “prohibits the government from telling people what they m ust say.” Rumsfeld v. Forum for Academic & Inst. Rights, Inc. (“FAIR”), 547 U.S. 47, 61 (2006). But the preven tive services coverage regulations do not “compel speech”—by plaintiffs or any othe r person, employer, or entity—in violation of the First Amendment. Nor do they limit what plaintiffs may say. Plaintiffs remain free under the regulations to express whatever views they may have on the use of contraceptive services (or any
18 Even if th e regulations discriminate among religions (and they do not), they are valid under the Establishment Clause, because they satisfy strict scrutiny. See supra; Larson, 456 U.S. at 251-52. 19 Plaintiffs also that the regulations interfere with plaintiffs’ “internal decisions.” Am. Compl. ¶¶ 243-48. But that is merely a restatement of plaintiffs’ substantial burden theory, which fails for reasons explained already.
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other health care services) as well as their views about the regulat ions. Plaintiffs, moreover, may encourage their employees not to use contraceptive services.
Indeed, every court to review a Free Speech challenge to the prior contraceptive-coverage regulations has rejected it, in part, because the regulations deal with conduct. See MK Chambers Co. v. U.S. Dep’t of Health & Human Servs., Civil Action No. 13–11379, 2013 WL 1340719, *6 (E.D. Mich. Apr. 3, 2013) (“Li ke the [law at issue in FAIR], the contraceptive requirem ent regulates conduct, not speech.” (quotations omitted)); Briscoe v. Sebelius, 927 F. Supp. 2d 1109 (D. Colo. 2013) (“The plai ntiffs cite no authority and I am not aware of any authority holding that such conduct qualifies as speech so as to trigger First Amendment protection.”); Conestoga, 917 F. Supp. 2d at 418; Grote, 914 F. Supp. at 955; Autocam, 2012 WL 6845677, *8; O’Brien, 894 F. Supp. 2d at 1165-67; see also Catholic Charities of Sacramento, 85 P.3d at 89; Catholic Charities of Diocese of Albany , 859 N.E.2d at 465. The accomm odations likewise regu late conduct by relieving an eligible organization of th e obligation “to contract, arrange, pay, or refer for contraceptive coverage” to which it has religious objections. 78 Fed. Reg. at 39,874, AR at 6.
The regulations also do not requ ire plaintiffs to subsidize an y conduct that is “inherently expressive.” FAIR, 547 U.S. at 66; see also United Sta tes v. O’Brien, 391 U.S. 367, 376 (1968) (recognizing that some forms of “symbolic speec h” are protected by the First Amendment). As an initial matte r, the re gulations explicitly prohibit plaintiffs’ issuers/TPAs from imposing any cost sharing, premium, fee, or other charge on plaintiffs or their plans with respect to the separate payments for contraceptive services m ade by the issuers /TPAs. See 78 Fed. Reg. at 39,880, AR at 12. P laintiffs, therefore, are not funding or subsidizing anything pert aining to contraceptive coverage. Moreover, even if plaintiffs played so me role in an issuer’s or TPA’s provision of payments for contraceptive services (and they do not), making payments for health care serv ices is not the sort of conduct the Suprem e Court has recognized as inherently expressive. See Conestoga, 917 F. Supp. 2d at 418; Grote, 2012 W L 6725905, at *10; Autocam, 2012 WL 6845677, at *8 (“Including contraceptiv e coverage in a health car e plan is not inherently expressive conduct.”); O’Brien, 894 F. Supp. 2d at 1166-67 (“Givi ng or receiving health care is
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not a s tatement in the s ame sense as wearing a black arm band or burni ng an Am erican flag.” (internal citations omitted)); Catholic Charities of Sacramento , 85 P.3d at 89 (“a law regulating health care benefits is n ot speech”); Diocese of Albany, 859 N.E.2d at 465; see also FAIR, 547 U.S. at 65-66 (m aking space for m ilitary recruiters on cam pus is not conduct that indicates colleges’ support for, or sponsorship of, recruiters’ message).
Furthermore, plaintiffs are wrong when th ey contend that the regulations require plaintiffs to “facilitate access” to “counseling related to abortion.” Compl. ¶ 254. The regulations simply require coverage of “education and c ounseling for women with reproductive capacity.” HRSA Guidelines, AR a t 130-31. The conversations that may take place between a patient and her doctor cannot be known or screened in ad vance and may cover any num ber of options. To the extent that p laintiffs intend to argue that the cov ered education and counseling is objectionable because som e of the conversati ons between a doctor and one of plaintiffs’ employees might be supportive of som ething to which th ey object, accepting th is theory would mean that the Firs t Amendment is violated by the m ere possibility of an em ployer’s disagreement with a potential subject of disc ussion between an em ployee and her doctor, and would extend to all such intera ctions, not just those that ar e the su bject of the challenged regulations. The First Am endment does not require such a drastic result. See, e.g., Conestoga , 2013 WL 140110, at *17.
Finally, the regulations do not violate the righ t to expressive association. To be s ure, “[t]he right to speak is often exercised most effectively by combining one’s voice with the voices of others.” FAIR, 547 U.S. at 68. “If the governm ent were free to restrict indi viduals’ ability to join together and speak, it could essentially silence views that the F irst Amendment is intended to protect.” Id. But the preventive services coverage re gulations do not interfere with plaintiff’ s right of expressive association. The regulations do not interfere in any way with the com position of plaintiffs’ workforces, f aculties, or student bodies. See Boy Scouts of Am. v. Dale , 530 U.S. 640, 656 (2000) (holding Boy Scouts’ freedom of expressive association was violated by law requiring organization to accept gay man as a scoutmaster); Roberts, 468 U.S. at 623 (concluding
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statute that forced group to accept women against its desires was subject to strict scrutiny). The regulations do not force plaintiffs to hire employees they do not wish to hire or to adm it students they do not desire to be a part of their schools . Moreover, plaintiffs, as well as their em ployees and students, are free to associate to voice thei r disapproval of the use o f contraception and the regulations. Even the statu te at iss ue in FAIR, which required law schools to allow m ilitary recruiters on campus if other recruiters were allowed on campus, did not violate the law schools’ right to expression association. 547 U.S. at 68-70. The preventive services coverage regulations do not even im plicate plaintiffs’ right. See MK Chambers, 2013 WL 1340719, at *6 (rejecting expressive association challenge to prior version of regulations); Diocese of Albany, 859 N.E. 2d at 465 (upholding sim ilar state law because it “does [not] compel [plaintiffs] to a ssociate, or prohibit them from associating, with anyone”).
Accordingly, plaintiffs’ free speech and e xpressive association claim s—Counts IV and VI—fail.
E. The Regulations Do Not Violate the Due Process Clause Plaintiffs’ claim that the prev entive services coverage regulati ons violate the Fifth Amendment’s Due Process Clause is m isdirected and baseless. A law is not uncon stitutionally vague unless it “fails to provide a person of ordinary intellig ence fair notice of what is prohibited” or “is so standardless that it author izes or encourages seriously d iscriminatory enforcement.” United States v. Williams, 553 U.S. 285, 304 (2008). Courts relax these standards where, as here, the law in question imposes civil rather than criminal penalties and does no t “interfere[] with the rig ht of free speech or of association .” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99 (1982). In any event, “perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity.” Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2719 (2010). Plaintiffs do not even attem pt to identif y a source of vag ueness or confusion in the regulations. See Am. Compl. ¶¶ 261-62. And plaintiffs evid ently have no difficulty determ ining what the regulations require of them ; at the very least, then, the regulations are not vague as
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applied to P laintiffs. See U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers , 413 U.S. 548, 579 (1973) (“Surely, there seem ed to be little question in the m inds of the plaintiffs who brought this lawsuit as to the m eaning of the law, or as to whet her or not the conduct in which they desire to engage was or was not prohibited by the Act.”); Parker v. Levy, 417 U.S. 733, 756 (1974) (“One to whose conduct a statute clearly applies may not successfully challenge it for vagueness.”). As in Humanitarian Law Project , “the dispositive point” is that th e regulations’ terms “are clear in their application to plainti ffs’ proposed conduct, which m eans that plaintiffs’ vagueness challenge must fail.” 130 S. Ct. at 2720.
Finally, plaintiffs m isunderstand the regulati ons when they assert that the regulations provide defendants with “unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations that possess religious beliefs.” A m. Compl. ¶ 264. That is incorrect. Under the regulations at issue he re, an organization that is or ganized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (a)(3)(A)(iii) of the Internal Revenue Code of 1986, as am ended, qualifies for the exem ption. 45 C.F.R. § 147.131(a). And an organization that satisfies the four criteria to be an “eligible organization” is eligible for the accom modations. Id. § 137.131(b). There is ther efore simply no discretion that is left to defendants to decide who is exempt or who is accommodated; the regulations set out the criteria for both determinations.20 Similarly, there is no m erit to plaintiffs’ allegation that the regulations—which contain specific criteria—will lead to discriminatory enforcement. For these reasons, Count V fails.
F. Plaintiffs’ APA Claims Fail 1. The regulations were promulgated in accordance with the APA
Plaintiffs assert that def endants failed to comply with the APA’s notice and comm ent procedures and the ACA’s tim ing provisions. These allegations are baseles s. The APA’s rulemaking provisions generally require that agencies provide notice of a proposed rule, invite
20 The regulations permitted HRSA to create a religious employer exemption, and identified the criteria for such an exemption, and HRSA did so in its August 1, 2 011 action. See HRSA Guidelines. Any employer that m eets the criteria of a “religious em ployer” is exempt from the contraceptive-coverage requirement. See id.; see, e.g., Grote, 2012 WL 6725905, at *8.
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and consider public comme nts, and adopt a final rule that includes a statement of basis an d purpose. See 5 U.S.C. § 553(b), (c). Defendants complied with these requirements.21
As to the challenged regulations, defe ndants issued the ANPRM on March 21, 2012, and solicited comments on it. 77 Fed. R eg. 16,501. Defendants then considered those comments and issued the NPRM on February 6, 2013, requesting comments on the proposals contained in it. 78 Fed. Reg. at 8457, AR at 166. Defendants received over 400,000 comments, and the preamble to the 2013 final rules contains a detailed discussi on both of the comments defendants received and of defendants’ responses to those comments. See 78 Fed. Reg. at 39,871-39,888, AR at 3-20. The mere fact that the regulations as ultim ately issued may not satisfy the p references of each and every commenter is certainly no t evidence that those comments were not considered. Given the range of interests and views am ong commenters, it is unlikely—if not im possible—that any regulation will be fully in line with the comments made by every commenter.
Plaintiffs also contend the regulations violate the ACA because plaintiffs believe they did not exist in final form for one year prio r to going into ef fect. This argum ent is based on a misunderstanding of both the ACA and the regulat ions. The provision of the ACA to which plaintiff refers, 42 U.S.C. § 300gg-13(b), requires only that there be a minim um interval of not less than one year between the date on which a recommendation or guideline is issued—here, the HRSA Guidelines—and the plan year for which the coverage of the services included in that recommendation or guideline m ust take effect. See 75 Fed. Reg. at 41,729, AR at 229. That requirement is clearly satisfied here: HR SA published its guide lines on August 1, 2011, see HRSA Guidelines, supra, and these regulations apply for plan years beginning on or after January 1, 2014, see 78 Fed. Reg. at 39,870, AR at 2. Nothing in the ACA prevents defendants from amending the regulations as they have done here, and because the required in terval relates only to the issuance of new recommendations or guidelines, nothing in the ACA requires
21 To the extent plaintiffs attempt to raise any alleged insufficiencies or improprieties as to the prior, interim final rules, they are simply irrelevant. The regulations plaintiffs challenge here are an entirely different set of regulations. The relevant question is whether defendants complied with the APA as to these regulations, and as shown below, there is no question that they did.
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defendants to provide an interval of one year between the promulgation of these amendments and the date on which the required coverage must take effect.
2. The regulations are neither arbitrary nor capricious Plaintiffs’ claim that the re gulations are arb itrary and ca pricious is belied by the policymaking path discussed above, which illustrates that the regulations are neither arbitrary nor capricious. See Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (agency action m ust be upheld so l ong as “the agency’s path m ay reasonably be discerned”); DKT Mem’l Fund, Ltd. v. Agency for Int’l Dev. , 887 F.2d 275, 281 (D.C. Cir. 1989) (“The APA has never been construed to grant to th is or any other court th e power to review the wisdom of policy decisions of the President.”). Th e preamble to the rules al so sets out that pa th in detail, see 78 Fed. Reg. at 39,871-88, AR at 3-20, and ther e can be no serious question that it can be reasonably discerned. Similarly, plaintiffs’ brazen claim that defendants failed to consider the constitutional and statutory im plications of the regulations is flatly contradicted by the record, which explicitly discusses that very issue. See 78 Fed. Reg. at 39,886-88, AR at 18-20. Instead of pointing to anywhere in the r ecord where defendants did not “articulate a satisfactory explanation for [their] action,” State Farm, 463 U.S. at 43, plaintiffs resort to complaining about the content of th e regulations themselves. Just as the fact that plaintiffs are disappointed that the regulations are not in keeping w ith all of their comm ents does not m ean that defendants failed to consider plaintiffs’ comments, plaintiffs’ contrary policy preferences do not render the regulations arbitrary or capricious. The regul ations are consistent with th e proposals contained in the ANPRM and the NPRM, and, as the re cord reflects, represent the logical outgrowth of those proposals and the hundreds of thousands of comments received.
3. The regulations do not violate restrictions relating to abortion Plaintiffs contend the regulations violate the APA because they conflict with three federal statutes dealing with abortion: section 1303(b)(1 ) of the ACA, the W eldon Amendment, and the Church Amendment. Plaintiffs appear to reason that, becau se the p reventive services coverage
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regulations require group health plans to cover emergency contraception, such as Plan B, they in

effect require plaintiffs to provide coverage for abortions in violation of federal law.

This set of argum ents should be rejected at the outset because plaintiffs lack prudential

standing to assert it. The doctrine of prudential standing requires that a plaintiffs’ claim fall

within “the zone of interests to be prote cted or regu lated by th e statute or constitutional

guarantee in question.” Ass’n of Data Processing Serv. Orgs., Inc. v. Camp , 397 U.S. 150, 153

(1970). But the necessary link between plain tiffs and each of these statu tes is missing here. See

Dialysis Ctrs., Ltd. v. Schweiker, 657 F.2d 135, 138 (7th Cir. 1981); O’Brien, 894 F. Supp. 2d at

1167-68 (holding that plaintiff lacked prudential standing to raise sim ilar claims).

Section 1303(b)(1) of the ACA provi des that “nothing in this title . . . shall be construed to

require a qualified health plan to provide

coverage of [abortion services],” 42 U.S.C.

§ 18023(b)(1)(A)(i), but plaintiffs are neither health insurance issuers nor purchasers of a qualified health plan.22 They therefore do not fall within the zone of interests to be protected by

the statute in question. Sim ilarly, the W eldon Amendment denies funds made available in the

Consolidated Appropriations Act of 2012 to any fe deral, state, or local agency, program , or

government that “subjects any inst itutional or individual health car e entity to discrim ination on

the basis that the health care entity does not p rovide, pay for, provide coverage of, or refer for

abortions.” Pub. L. No. 112-74, §§ 506, 507, 125 St at. 786, 1111-12 (Dec. 23, 2011). Plaintif fs

are not institutional or individual health care entities, see id. at § 507(d)(2), so they are not within

this statute’s zone of interests either. Finally, the Church Amendment protects individuals from

being required to “perform or assist in the performance of any part of a health service program or

research activity funded . . . by the S ecretary of Health and Hum an Services if his perform ance

or assistance . . . would be cont rary to his religious beliefs or moral convictions.” 42 U.S.C. §

22 A “q ualified health plan,” within the meaning of this provision, is a h ealth plan that has been cert ified by the health insurance exchange “through which such plan is offered” and that is offered by a health insurance issuer. 42 U.S.C. § 18021(a)(1). Health insurance exchanges are to be set up by states n o later than January 1, 2014. Id. § 18031. Plaintiffs’ health insurance plans were n ot purchased on a health insurance exchange, and so none is a “qualified health plan.”
42

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300a-7(d). By merely providing a health plan to its employees, plaintiffs are not required to, and in fact do n ot, “perform or assi st in the performance” of a “hea lth service program or research activity funded . . . under a program administered by the Secretary of Health and Hum an Services” within the meaning of the Church Amendment. See Gray v. Romero, 697 F. Supp. 580, 590 n.6 (D.R.I. 1988). Nor are plaintiffs “individual[ s]” under that provision. They are therefore not within the Church Amendment’s zone of interests either.
Even if the Court were to reach th e merits of these claim s, plaintiffs’ prem ise that the contraceptive coverage regulati ons require abortion coverage is fundamentally incorrect. The regulations do not require that a ny health plan cover abortion as a preventive service, or that it cover abortion at all, as that term is defined in federal law. Rather, the regulations require only that non-grandfathered, non-exempt and non-accommodated group health plans cover all FDAapproved “contraceptive m ethods, sterilization procedures, and patient education and counseling,” as prescribed by a health care provider. See HRSA Guidelines, supra. And the government has made clear that the preventive services covered by the regulations do not include abortifacient drugs.23 Although plaintiffs believe that Pl an B, ella, and certain IUDs are abortifacient drugs or cause abortions, neither the government nor this Court is required to accept that characterization, which is inconsistent with the FDA’s scientific assessment and with federal law. While plaintiffs’ religious beliefs may define abortion m ore broadly than federal law to include emergency contraception and certain IUDs, statutory interpretation requires that terms be construed as a m atter of law and not in acco rdance with any particular indiv idual’s views or beliefs. E.g., Gov’t Empls. Ins. Co. v. Benton, 859 F.2d 1147, 1149 (3d Cir. 1988).
In recommending what contraceptive services should be covered by health plans w ithout cost-sharing, the IOM Report iden tified the contraceptives that have been approved by the FDA as safe and effective. See IOM R EP. at 10, AR at 308. And the list of FDA-approved
23 HealthCare.gov, Affordable Care Act Rules on Expanding Access to Preventive Services for Women (August 1, 2011), available at http://www.hhs.gov/healthcare/facts/factsheets/2011/08/womensprevention08012011a.html (last visited Sept. 27, 2013); see also IOM REP. at 22 ( recognizing that abortion services are outsi de the scope of permissible recommendations), AR at 320.
43

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

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

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

than abortifacients. See Prescription Drug Products; Certain Combined Oral Contraceptives fo r

Use as Postcoital Em ergency Contraception, 62 Fed. Reg. 8610, 8611 (Feb. 25, 19 97) (noting

that “emergency contraceptive pills are not effective if the wom an is pregnant” and that there is

“no evidence that [em ergency contraception] will have a n adverse e ffect on an established

pregnancy”); 45 C.F.R. § 46.202 (f) (“Pregnancy encompasses the period of ti me from

implantation until de livery.”). In lig ht of this conclusion by the FDA, HHS inf ormed Title X

grantees, which are required to o ffer a rang e of accep table and effective fam ily planning

methods—and may not offer abortion except under limited circumstances (e.g., rape, incest, or

when the life of the wom an would be in danger)—t hat they “should consider the availability of

emergency contraception the sam e as any other method which has been established as safe and

effective.” Office of Population

Affairs, Memorandum (Apr. 23, 1997),

http://www.hhs.gov/opa/pdfs/opa-97-02.pdf (last visited Sept. 27, 2013); see also 42 U.S.C. §§

300, 300a-6.

Because they reflect a settled understanding of FDA-approved contraceptives that is in

accordance with existin g federal laws prohibiti ng federal f unding for certain abo rtions, the

regulations are consistent with over a decade of regulatory policy and practice and thus cannot be deemed contrary to any law dea ling with abo rtion.24 See Bhd. of R.R. Signalmen v. Surface

Transp. Bd., 638 F.3d 807, 815 (D.C. Cir. 2011) (giving particular deference to an agency’s

longstanding interpretation) (citing Barnhart v. Walton, 535 U.S. 212, 220 (2002)).

24 Representative Weldon, the sponsor of the Weldon Amendment, himself did not consider the word “abortion” in the statute to include FDA-approved emergency contraceptives. See 148 Cong. Rec. H6566, H6580 (daily ed. Sept. 25, 2002) (“The provision of cont raceptive services has neve r been defined as abortion in Federal statute, nor has emergency contraception, what has commonly been interpreted as th e morning-after pill. . . . [U]nd er the current FDA policy[,] that is co nsidered contraception, and it is no t affected at all by this statute.”). His stat ement leaves little doubt that the Weldon Amendment was not intended to apply to emergency contraceptives. See Fed. Energy Admin. v. Algo nquin SNG, Inc., 426 U.S. 548, 564 (1976) (indicating that a st atement of o ne of the legislation’s sponsors deserves to be accorded substantial weight in interpreting a statute).
44

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Plaintiffs’ APA claims—collected at Count VII— thus fail. II. PLAINTIFFS CANNOT ESTABLI SH IRREPARABLE HARM, AND AN
INJUNCTION WOULD INJURE THE GOVERNMENT AND THE PUBLIC “The loss of First Am endment freedoms, for even m inimal periods of tim e, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). Even assuming arguendo that sam e rule applies to a st atutory claim under RFRA, plaintiffs have not shown that the challenged regula tions violate their First Amendm ent or RFRA rights, so there has been no “loss of First Am endment freedoms” for any period of time, id. In this respect, the merits and irreparable injury prongs of the prel iminary injunction analysis merge together, and plaintiffs cannot show irreparable injury w ithout also sho wing a likelihood of success on th e merits, which they cannot do. See McNeilly v. Land, 684 F.3d 611, 621 (6th Cir. 2012). Plaintiffs’ motion f or preliminary injunctive relief suffers from an addition al, critical flaw: The harm that Biola alleges is in no way imminent. See Bedrossian v. Northwestern Memorial Hosp., 409 F.3d 840, 844 (7th Cir. 2005) (noting that the irreparable harm must be imminent); Chacon v. Granata, 515 F.2d 922, 925 (5th Cir. 1975) (“An injunction is appropriate only if the antic ipated injury is imminent and irreparable.”) (emphasis added); Holiday Inns of Am., Inc. v. B & B Corp., 409 F.2d 615, 618 (3d Cir. 1969) (“The dramatic and drastic power of injunctive force may be unleashed only against conditions generating a presently existing actual threat[.]”) (emphasis added). Because defendants have extended the enforcement safe harbor to encompass plan years that begin b etween August 1 and Decem ber 31, 2013, the challeng ed regulations will not b e enforced by defendants against Biola until April 1, 2014, when its n ext plan year begins.25 Am. Compl. ¶ 179. There is ample time between now and then for the parties to litigate the m erits of Biola’s claim s in th e normal course of m otions practice, without the extraordinary relief of a prelim inary injunction. It is also no answer to say, as plaintiffs do, that they require a preliminary injunction because of “uncertainty” surrounding the regulations. P ls.’ Br. at 11. There is n o uncertainty—the regulations have been issued in final form, and
25 Similarly, Grace’s st udent health plan year does not begin until July 25, 2014, see Am. Compl. ¶ 18 1, so the challenged regulations will not be enforced by defendants against Grace as to that health plan until July 25, 2014.
45

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defendants’ health plans m ust comply as of the first plan year beginning on or after January 1, 2014. To the extent any uncertainty rem ains as to these obligations, it has been introduced only by the filing of this lawsuit.
As to the final two preliminary injunction factors—the balance of equities and the public interest—“there is inherent harm to an agency in preventing it f rom enforcing regulations that Congress found it in the public interest to dire ct that agency to develop and enforce.” Cornish v. Dudas, 540 F. Supp. 2d 61, 65 (D.D.C. 2008); see also C onnection Distrib. Co. v. Reno , 154 F.3d 281, 296 (6th Cir. 1998) (indicating that gran ting an injunction against the enforcement of a likely constitutional statute woul d harm the governm ent). Enjoining the p reventive services coverage regulations as to plaintiffs woul d undermine the governm ent’s ability to achieve Congress’s goals of improving th e health of wom en and newbor n children and equalizing the coverage of preventive services for women and men.26
It would also be con trary to the pub lic interest to deny plaintiffs ’ employees (and their families) the benefits of the preventive se rvices coverage regulations. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 312-13 (1982) (“[C]ourts . . . should pay particular regard for the public consequences in em ploying the extraordinary remedy of injunction.”). Those em ployees should not be deprived of the be nefits of payments provided by a third party that is not their employer for the full range of FD A-approved contraceptive services , as prescribed by a health care provider, on the basis of their em ployers’ religious objection. Many wom en do not use contraceptive services because th ey are not covered by their h ealth plan o r require costly copayments, coinsurance, or deductibles. IOM R EP. at 19-20, 109, AR at 317-18, 407; 77 Fed. Reg. at 8727, AR at 214; 78 Fed. Reg. at 39,887, AR at 19. As a result, in m any cases, both
26 Plaintiffs note that defendants consented to preliminary injunctions in some cases inv olving for-profit corporations, see Pls.’ Br. at 12-13, but defendants’ consent in those cases was n othing more than an effort to conserve judicial and go vernmental resources. Those cases were filed after m otions panels in those circuits had preliminary enjoined the regulations pending appeal in sim ilar cases. See Mersino, 2013 WL 3546702 at *16 (“[W]here the government has conceded to injunctive relief, it appears that it has generally done so in jurisdictions where the legal lan dscape has been set against them, and continuing to litigate the claims in those jurisdictions would be a wast e of both judicial and cl ient resources.”). The government continues to oppose preliminary injunctions sought by for-profit corporations in other circuits, and opposes in all circu its preliminary injunctions sought by non-profit entities as to the regulations challenged in this case.
46

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women and developing fetuses suffer negative health consequences. See IOM REP. at 20, 102-04, AR at 318, 400-02; 77 Fed. Reg. at 8728, AR at 215. And wom en are put at a com petitive disadvantage due to their lost pr oductivity and the disproportionate financial burden they bear in regard to preventive health services. 155 Cong. Rec. S12106-02, S12114 (daily ed. Dec. 2, 2009); see also IOM REP. at 20, AR at 318.
Enjoining defendants from enforcing, as to pl aintiffs, the preventive services coverage regulations—the purpose of wh ich is to elim inate these burdens, 75 Fed. Reg. at 41,733, AR a t 233; see also 77 Fed. Reg. at 8728, AR at 215—would thus in flict a very real harm on the public and, in particular, a readily id entifiable group of individuals. See Stormans, Inc. v. Selecky , 586 F.3d 1109, 1139 (9th Cir. 2009) (v acating preliminary injunction en tered by district court and noting that “[t]here is a general public in terest in ensuring that all citizens have timely access to lawfully prescribed m edications”). Plaintiffs’ health plans cover nearly 2,000 people. Com pl. ¶¶45, 50, 71. Accordingly, even assum ing plaintiffs were likely to succeed on the m erits (which they are not for the reasons explained above), any potential harm to plaintiffs resulting from their offense at a third party providing paym ent for contraceptive services at no cost to, and with no administration by, plaintiffs’ w ould be outweighed by the signifi cant harm an injunction would cause these employees and their families.
CONCLUSION For the foregoing reasons, defenda nts respectfully ask that the Court deny plaintiffs’ motion for a prelim inary injunction, and grant defendants’ motion to dism iss or, in the alternative, for summary judgment on all of plaintiffs’ claims. Respectfully submitted this 27th day of September, 2013,
STUART F. DELERY Assistant Attorney General DAVID A. CAPP United States Attorney
47

case 3:12-cv-00459-JD-CAN document 59 filed 09/27/13 page 60 of 61
JENNIFER RICKETTS Director SHEILA M. LIEBER Deputy Director _/s/ Michael C. Pollack______________ MICHAEL C. POLLACK (NY Bar) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW, Room 6143 Washington, DC 20530 Tel: (202) 305-8550 Fax: (202) 616-8470 Email: michael.c.pollack@usdoj.gov Attorneys for Defendants
48

case 3:12-cv-00459-JD-CAN document 59 filed 09/27/13 page 61 of 61 CERTIFICATE OF SERVICE
I hereby certify that on September 27, 2013, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which sent notice of such filing to all parties.
_/s/ Michael C. Pollack__________ MICHAEL C. POLLACK
49

 
 case 3:12-cv-00459-JD-CAN document 60 filed 09/27/13 page 1 of 3

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

)

GRACE SCHOOLS and BIOLA

)

UNIVERSITY, INC.,

)

Plaintiffs,

)

v.

)

)

KATHLEEN SEBELIUS, in her official

)

capacity as Secretary, United States

)

Department of Health and Human Services, et )

al.,

)

)

Defendants.

)

)

)

)

)

Case No. 3:12-cv-00459-JD-CAN

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

Pursuant to Federal Rules of Civil Pro cedure 12(b)(1) and 12(b)(6), defendants hereby

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

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

accompanying memorandum.

Respectfully submitted this 27th day of September, 2013,

STUART F. DELERY Assistant Attorney General

DAVID United

A. CAPP States Attorney

JENNIFER

RICKETTS Director

SHEILA Deputy

M. LIEBER Director

_/s/ Michael C. Pollack______________

1

case 3:12-cv-00459-JD-CAN document 60 filed 09/27/13 page 2 of 3

MICHAEL Trial United Civil

C. POLLACK (NY Bar) Attorney
States Department of Justice Division, Federal Programs Branch 20 Massachusetts Avenue NW, Room 6143 Washington, DC 20530 Tel: (202) 305-8550 Fax: (202) 616-8470 Email: Michael.C.Pollack@usdoj.gov
Attorneys for Defendants

2

case 3:12-cv-00459-JD-CAN document 60 filed 09/27/13 page 3 of 3 CERTIFICATE OF SERVICE
I hereby certify that on Septem ber 27, 2013, I el ectronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which sent notice of such filing to all parties.
_/s/ Michael C. Pollack __________ MICHAEL C. POLLACK
3

 
 case 3:12-cv-00459-JD-CAN document 61 filed 09/27/13 page 1 of 61

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

)

GRACE SCHOOLS and BIOLA UNIVERSITY, INC.,

) ) )

Plaintiffs,

) )

v.

) )

)

KATHLEEN SEBELIUS, in her official

)

capacity as Secretary, United States

)

Department of Health and Human Services, et al.,

) ) )

)

Defendants.

)

Case No. 3:12-cv-00459-JD-CAN

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

case 3:12-cv-00459-JD-CAN document 61 filed 09/27/13 page 2 of 61
TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................................... iii
INTRODUCTION ...........................................................................................................................1
BACKGROUND .............................................................................................................................4
STANDARD OF REVIEW .............................................................................................................9
ARGUMENT .................................................................................................................................10
I. PLAINTIFFS’ CLAIMS LACK MERIT...........................................................................10
A. Plaintiffs’ Religious Freedom Restoration Act Claim Is Without Merit ...............10
1. The regulations do not substantially burden plaintiffs’ exercise of religion.....................................................................................10
a. The regulations impose no more than a de minimis burden on plaintiffs’ exercise of religion because the regulations require virtually nothing of plaintiffs ................................11
b. Even if the regulations were found to impose some more than de minimis burden on plaintiffs’ exercise of religion, any such burden would be far too attenuated to be “substantial” under RFRA ...................................................................17
2. Even if there were a substantial burden on religious exercise, the regulations serve compelling governmental interests and are the least restrictive means to achieve those interests .................................20
a. The regulations significantly advance compelling governmental interests in public health and gender equality..............20
b. The regulations are the least restrictive means of advancing the government’s compelling interests ...............................................27
B. The Regulations Do Not Violate the Free Exercise Clause ...................................30
C. The Regulations Do Not Violate the Establishment Clause ..................................33
D. The Regulations Do Not Violate the Right to Free Speech Or Expressive Association .....................................................................................35
E. The Regulations Do Not Violate the Due Process Clause .....................................38
i

case 3:12-cv-00459-JD-CAN document 61 filed 09/27/13 page 3 of 61 F. Plaintiffs’ APA Claims Fail ...................................................................................39
1. The regulations were promulgated in accordance with the APA............................................................................................................39
2. The regulations are neither arbitrary nor capricious ..................................41 3. The regulations do not violate restrictions relating to abortion .................41 II. PLAINTIFFS CANNOT ESTABLISH IRREPARABLE HARM, AND AN INJUNCTION WOULD INJURE THE GOVERNMENT AND THE PUBLIC..............45 CONCLUSION ..............................................................................................................................47
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TABLE OF AUTHORITIES
CASES
Abdulhaseeb v. Calbone, 600 F.3d 1301 (10th Cir. 2010) .........................................................................................16
Adams v. Comm'r of Internal Revenue, 170 F.3d 173 (3d Cir. 1999).........................................................................................28, 29
Am. Family Ass'n v. FCC, 365 F.3d 1156 (D.C. Cir. 2004) .........................................................................................31
Am. Friends Serv. Comm. Corp. v. Thornburgh, 951 F.2d 957 (9th Cir. 1991) .............................................................................................32
Annex Medical, Inc. v. Sebelius, No. 12-cv-2804, 2013 WL 101927(D. Minn. Jan. 8, 2013)…………………………11, 18
Ashcroft v. Iqbal, 556 U.S. 662 (2009).............................................................................................................9
Ass'n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150 (1970)...........................................................................................................42
Autocam Corp. v. Sebelius, No. 1:12-CV-1096, 2012 WL 6845677 (W.D. Mich. Dec. 24, 2012) ....................... passim
Autocam Corp. v. Sebelius, __ F.3d __, 2013 WL 5182544 (6th Cir. Sept. 17, 2013) ..............................................3, 11
Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004) .........................................................................................32
Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687 (1994)...........................................................................................................33
Barnhart v. Walton, 535 U.S. 212 (2002)...........................................................................................................44
Bedrossian v. Northwestern Memorial Hosp., 409 F.3d 840 (7th Cir. 2005) .............................................................................................45
Bhd. of R.R. Signalmen v. Surface Transp. Bd., 638 F.3d 807 (D.C. Cir. 2011) ...........................................................................................44
iii

case 3:12-cv-00459-JD-CAN document 61 filed 09/27/13 page 5 of 61
Bowen v. Roy, 476 U.S. 693 (1986)...........................................................................................................12
Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000)...........................................................................................................37
Braunfeld v. Brown, 366 U.S. 599 (1961)...............................................................................................10, 17, 26
Briscoe v. Sebelius, 927 F. Supp. 2d 1109 (D. Colo. 2013)...............................................................................36
Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487 (10th Cir. 1998) ...........................................................................................20
Catholic Charities of Diocese of Albany v. Serio, 859 N.E.2d 459 (N.Y. 2006)...................................................................................... passim
Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67 (Cal. 2004) ...........................................................................................23, 31, 36
Chacon v. Granata, 515 F.2d 922 (5th Cir. 1975) .............................................................................................45
Children's Healthcare Is a Legal Duty, Inc. v. Min De Parle, 212 F.3d 1084 (8th Cir. 2000) ...........................................................................................34
Church of Scientology of Ga., Inc. v. City of Sandy Springs, Ga., 843 F. Supp. 2d 1328 (N.D. Ga. 2012) ..............................................................................15
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)................................................................................................... passim
City of Boerne v. Flores, 521 U.S. 507 (1997)...........................................................................................................16
Civil Liberties for Urban Believers v. City of Chi., 342 F.3d 752 (7th Cir. 2003) .................................................................................12, 14, 19
Combs v. Homer-Center Sch. Dist., 540 F.3d 231 (3d Cir. 2008)...............................................................................................10
Conestoga Wood Specialties Corp. v. Sebelius, 724 F.3d 377 (3d Cir. 2013).........................................................................................11, 33
iv

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Conestoga Wood Specialties Corp. v. Sebelius, 917 F. Supp. 2d 394 (E.D. Pa. Jan. 11, 2013)............................................................ passim
Connection Distrib. Co. v. Reno, 154 F.3d 281 (6th Cir. 1998) .............................................................................................46
Cornish v. Dudas, 540 F. Supp. 2d 61 (D.D.C. 2008) .....................................................................................46
Corp. of the Presiding Bishop v. Amos, 483 U.S. 327 (1987)...........................................................................................................35
Cutter v. Wilkinson, 544 U.S. 709 (2005).....................................................................................................33, 34
DKT Mem'l Fund, Ltd. v. Agency for Int'l Dev., 887 F.2d 275 (D.C. Cir. 1989) ...........................................................................................41
Dialysis Ctrs., Ltd. v. Schweiker, 657 F.2d 135 (7th Cir. 1981) .............................................................................................42
Dickerson v. Stuart, 877 F. Supp. 1556 (M.D. Fla. 1995) ..................................................................................20
Dole v. Shenandoah Baptist Church, 899 F.2d 1389 (4th Cir. 1990) ...........................................................................................23
Droz v. Comm'r of IRS, 48 F.3d 1120 (9th Cir. 1995) .............................................................................................34
Eden Foods, Inc. v. Sebelius, No. 13-cv-11229, 2013 WL 1190001 (E.D. Mich. Mar. 22, 2013) .......................11, 18, 31
Elrod v. Burns, 427 U.S. 347 (1976)...........................................................................................................44
Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872 (1990)...........................................................................................................30
Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548 (1976)...........................................................................................................44
Fegans v. Norris, 537 F.3d 897 (8th Cir. 2008) .............................................................................................29
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case 3:12-cv-00459-JD-CAN document 61 filed 09/27/13 page 7 of 61
Garner v. Kennedy, 713 F.3d 237 (5th Cir. 2013) .............................................................................................15
Geneva Coll. v. Sebelius, No. 2:12-cv-00207, 2013 WL 838238 (W.D. Penn. Mar. 6, 2013) ...................................31
Gilardi v. Sebelius, 926 F. Supp. 2d 273 (D.D.C. 2013) .......................................................................11, 16, 19
Gillette v. United States, 401 U.S. 437 (1971).....................................................................................................33, 34
Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006)...............................................................................................18, 23, 26
Gooden v. Crain, 353 F. App'x 885, 888 (5th Cir. 2009)...............................................................................29
Gov't Empls. Ins. Co. v. Benton, 859 F.2d 1147 (3d Cir. 1988).............................................................................................43
Graham v. Comm'r, 822 F.2d 844 (9th Cir. 1987) .......................................................................................23, 29
Gray v. Romero, 697 F. Supp. 580 (D.R.I. 1988)..........................................................................................42
Grote Indus., LLC v. Sebelius, 914 F. Supp. 2d 943 (S.D. Ind. 2012) ........................................................................ passim
Grote v. Sebelius, 708 F.3d 850 (7th Cir. 2013) .......................................................................................18, 20
Henderson v. Kennedy, 253 F.3d 12 (D.C. Cir. 2001) .............................................................................................10
Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278 (W.D. Okla. 2012) ....................................................................10, 31
Hobby Lobby Stores, Inc. v. Sebelius, 133 S. Ct. 641 (2012) .........................................................................................................10
Hobby Lobby v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) ...................................................................................15, 19
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Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010) .......................................................................................................38
Holiday Inns of Am., Inc. v. B & B Corp., 409 F.2d 615 (3d Cir. 1969)...............................................................................................45
Intercommunity Ctr. for Justice & Peace v. INS, 910 F.2d 42 (2d Cir. 1990).................................................................................................32
Judge v. Quinn, 612 F.3d 537 (7th Cir. 2010) ...............................................................................................9
Kaemmerling v. Lappin, 553 F.3d 669 (D.C. Cir. 2008) ................................................................................... passim
Korte v. U.S. Dep't of Health & Human Servs., 912 F. Supp. 2d 735 (S.D. Ill. 2012)......................................................................11, 19, 31
Larson v. Valente, 456 U.S. 228 (1982)...............................................................................................33, 34, 35
Legatus v. Sebelius, 901 F. Supp. 2d 980 (E.D. Mich. 2012).............................................................................25
Liberty Univ., Inc. v. Lew, __ F.3d __, 2013 WL 3470532 (4th Cir. July 11, 2013)....................................................35
Living Water Church of God v. Charter Twp. of Meridian, 258 Fed. App'x 729 (6th Cir. 2007) .......................................................................14, 15, 19
M.K. Chambers Co. v. HHS, No. 13-cv-11379, 2013 WL 1340719 (E.D. Mich. Apr. 3, 2013) ............................. passim
McEachin v. McGuinnis, 357 F.3d 197 (2d Cir. 2004).........................................................................................14, 19
McNeilly v. Land, 684 F.3d 611 (6th Cir. 2012) .............................................................................................45
Mead v. Holder, 766 F. Supp. 2d 16 (D.D.C. 2011) .....................................................................................20
Mersino Mgmt. Co. v. Sebelius, __ F. Supp. 2d __, 2013 WL 3546702 (E.D. Mich. July 11, 2013).......................11, 16, 46
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Motor Vehicle Mfrs. Ass'n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983).......................................................................................................40, 41
Murphy v. State of Ark., 852 F.2d 1039 (8th Cir. 1988) ...........................................................................................29
Navajo Nation v. U.S. Forest Serv., 479 F.3d 1024 (9th Cir. 2007) ..........................................................................................23
New Life Baptist Church Acad. v. Town of E. Longmeadow, 885 F.2d 940 (1st Cir. 1989) ........................................................................................28, 29
O'Brien v. HHS, 894 F. Supp. 2d 1149 (E.D. Mo. 2012)...................................................................... passim
Olsen v. DEA, 878 F.2d 1458 (D.C. Cir 1989) ..........................................................................................33
Olsen v. Mukasey, 541 F.3d 827 (8th Cir. 2008) .............................................................................................31
Parker v. Levy, 417 U.S. 733 (1974)...........................................................................................................38
Potter v. Dist. of Columbia, 558 F.3d 542 (D.C. Cir. 2009) ...........................................................................................19
Roberts v. U.S. Jaycees, 468 U.S. 609 (1984).....................................................................................................22, 37
Rumsfeld v. Forum for Academic & Inst. Rights, Inc. (“FAIR), 547 U.S. 47 (2006).................................................................................................35, 36, 37
S. Ridge Baptist Church v. Indus. Comm'n of Ohio, 911 F.2d 1203 (6th Cir. 1990) ...............................................................................24, 26, 29
Sharpe Holdings, Inc. v. HHS, No. 2:12-CV-92-DDN, 2012 WL 6738489 (E.D. Mo. Dec. 31, 2012) .............................30
Sherbert v. Verner, 374 U.S. 398 (1963).....................................................................................................18, 23
Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998)...............................................................................................................9
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Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) ...........................................................................................47
Thomas v. Review Bd. of the Ind. Emp't Sec. Div., 450 U.S. 707 (1981).........................................................................................10, 15, 18, 19
U.S. Civil Serv. Comm'n v. Nat'l Ass'n of Letter Carriers, 413 U.S. 548 (1973)...........................................................................................................38
United States v. Amer, 110 F.3d 873 (2d Cir. 1997)...............................................................................................31
United States v. Israel, 317 F.3d 768 (7th Cir. 2003) .............................................................................................27
United States v. Lafley, 656 F.3d 936 (9th Cir. 2011) .............................................................................................29
United States v. Lee, 455 U.S. 252 (1982)...........................................................................................................23
United States v. NCR Corp., 688 F.3d 833 (7th Cir. 2012) ...............................................................................................9
United States v. O'Brien, 391 U.S. 367 (1968)...........................................................................................................36
United States v. Oliver, 255 F.3d 588 (8th Cir. 2001) .............................................................................................23
United States v. Schmucker, 815 F.2d 413 (6th Cir. 1987) .............................................................................................27
United States v. Wilgus, 638 F.3d 1274 (10th Cir. 2011) ...................................................................................27, 28
United States v. Williams, 553 U.S. 285 (2008)...........................................................................................................38
United States v. Winddancer, 435 F. Supp. 2d 687 (M.D. Tenn. 2006)......................................................................23, 24
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982)...........................................................................................................38
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Vision Church v. Vill. of Long Grove, 468 F.3d 975 (7th Cir. 2006) .......................................................................................10, 15
Walz v. Tax Commission of New York, 397 U.S. 664 (1970)...........................................................................................................35
Washington v. Klem, 497 F.3d 272 (3d Cir. 2007)...............................................................................................14
Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982)...........................................................................................................46
Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338 (2d Cir. 2007)...............................................................................................15
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008).................................................................................................................9
Wisconsin v. Yoder, 406 U.S. 205 (1972)...............................................................................................15, 18, 23
STATUTES
5 U.S.C. § 553(b), (c).....................................................................................................................39 26 U.S.C. § 45R .............................................................................................................................25 26 U.S.C. § 4980H(c)(2)................................................................................................................25 42 U.S.C. § 18011..........................................................................................................................24 42 U.S.C. § 18021(a)(1).................................................................................................................42 42 U.S.C. § 18023(b)(1)(A)(i) .......................................................................................................42 42 U.S.C. § 2000bb-1 et seq ..........................................................................................................10 42 U.S.C. §§ 300.................................................................................................................... passim 42 U.S.C. § 300gg-13(a)(4) .............................................................................................................5 45 C.F.R. § 147.131 ............................................................................................................... passim 45 C.F.R. § 147.140 .......................................................................................................................24 45 C.F.R. § 46.202(f) .....................................................................................................................44 Pub. L. No. 103-141, 107 Stat. 1488 (1993)..................................................................................10 Pub. L. No. 111-148, 124 Stat. 119 (2010)......................................................................................4 Pub. L. No. 112-74, §§ 506, 507, 125 Stat. 786, 1111-12 (Dec. 23, 2011) ...................................42
RULES AND REGULATIONS
62 Fed. Reg. 8610 (Feb. 25, 1997) ................................................................................................44 75 Fed. Reg. 34,540 (June 17, 2010) .............................................................................................24 75 Fed. Reg. 41,726 (July 19, 2010)..................................................................................21, 40, 47
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76 Fed. Reg. 46,621 (Aug. 3, 2011).................................................................................................6 77 Fed. Reg. 16,501 (Mar. 21, 2012).........................................................................................6, 39 77 Fed. Reg. 8725 (Feb. 15, 2012) ........................................................................................ passim 78 Fed. Reg. 39,869 (July 2, 2013)........................................................................................ passim 78 Fed. Reg. 8456 (Feb. 6, 2013) ..............................................................................................6, 40
LEGISLATIVE MATERIAL 139 Cong. Rec. S14350-01, S14352 ..............................................................................................16 148 Cong. Rec. H6566, H6580 ......................................................................................................44 155 Cong. Rec. S12106-02, S12114 ........................................................................................22, 46 155 Cong. Rec. S12265-02, S12274 ..............................................................................................22 H.R. Rep. No. 111-443 ..................................................................................................................28
FEDERAL RULES OF CIVIL PROCEDURE Fed. R. Civ. P. 12(b)(1)....................................................................................................................9 Fed. R. Civ. P. 12(b)(6)....................................................................................................................8 Fed. R. Civ. P. 56(a) ........................................................................................................................9
MISCELLANEOUS Guttmacher Institute, State Policies in Brief: Insurance Coverage of
Contraceptives (June 2013) .................................................................................................5 HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines .....................6 HealthCare.gov, Affordable Care Act Rules on Expanding Access to Preventive
Services for Women (August 1, 2011) .............................................................................43 INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING
THE GAPS 19-20, 109 (2011) ...............................................................................................4 Kaiser Family Foundation and Health Research & Educational Trust, Employer
Health Benefits 2012 Annual Survey) ..............................................................................24 Office of Population Affairs, Memorandum (Apr. 23, 1997) .......................................................44 U.S. Preventive Services Task Force A and B Recommendations,
http://www.uspreventiveservicestaskforce.org/uspstf/uspsabrecs.htm ................................5
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INTRODUCTION Plaintiffs Grace Schools and Biola University ask this C ourt to p reliminarily enjoin regulations that ar e intended to acc ommodate religious exercise while helping to ensure that women have access to health coverage, without cost-sharing, for preventive services that medical experts deem necessary for women’s health and well-being. Subject to an exem ption for houses of worship and their in tegrated auxiliaries, and accommodations for certain o ther non-profit religious organizations, as discussed below, the regulations that plaintiffs challenge require certain group health plans and health insurance issuers to provide coverage, without cost-sharing (such as a copayment, coinsurance, or a deduc tible), for, among other things, all Food and Drug Administration (FDA)-approved cont raceptive methods, sterilization procedures, and patient education and counseling for women with reproduc tive capacity, as prescr ibed by a health care provider. When the contraceptive-coverage requirem ent was first established, in August 2011, certain non-profit religious organi zations objected on religious grounds to having to provide contraceptive coverage in the group health plans they offer to their em ployees. Although, in the government’s view, these organ izations were m istaken to claim that an accommodation was required under the First Am endment or the R eligious Freedom Restoration Act (RFRA), the defendant Departments decided to accommodate the concerns expressed by these organizations. First, they established an exem ption for the gr oup health plans of hous es of worship and their integrated auxiliaries (and any a ssociated group health insuran ce coverage). In addition, they established accommodations for the group health plan s of eligible non-prof it religious organizations, like plaintiffs (and any associated group health insurance c overage), that relieve them of responsibility to contract, arrange, pay, or refer for c ontraceptive coverage or services, but that als o ensure th at the women who part icipate in th ese plans are not denied access to contraceptive coverage without cost-sharing. To be eligib le for an accomm odation, the organization merely needs to certify that it meets the eligibility criteria, i.e., that it is a non-profit organization that holds itself out as religious and has a religious objection to providing coverage
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for some or all contraceptives. Once the organization certifies that it meets these criteria, it need not contract, arrange, pay, or refer for contracep tive coverage or services. If the organization has third-party insurance—like Biol a, and like Grace Schools does fo r its student plan—the thirdparty insurer takes on the responsib ility to provide contraceptive coverage to the organization’s employees and covered dependents. If the group hea lth plan of the organization is self-insured— like Grace Schools’ employee pla n—its third-party adm inistrator (TPA) has resp onsibility to arrange contraceptive coverage for the organi zation’s employees and covered dependents. In neither case does the objecting employer bear th e cost (if any) of providing contraceptive coverage; nor does it administer such coverage; nor does it contract or otherwise arrange for such coverage; nor does it refer for such coverage.
Remarkably, plaintiffs now declare that th ese accommodations them selves violate their rights under RFRA and the First Am endment. They contend that th e mere act of certifying that they are eligible for an accommodation is a s ubstantial burden on their relig ious exercise because, once they make the certification, th eir employees will be able to obtain contraceptiv e coverage through other parties. Th is extraordinary contention s uggests that plaintiffs not only seek to avoid paying for, adm inistering, or otherwise provid ing contraceptive coverage themselves, but also seek to prevent the wom en who work for their organizations from obtaining such coverage, even if through other parties.
At bottom, plaintiffs’ position seems to be that any as serted burden, no m atter how de minimis, amounts to a substantial burden under RFRA . That is not the law. Congress am ended the initial v ersion of RFRA to add the word “ substantially,” and thus made clear that “any burden” would not suffice. Although these regulat ions require virtually nothing of the m, plaintiffs claim that the regulati ons run afoul of their sincerely held religious beliefs prohibiting them from providing or facilitati ng health coverage for certain c ontraceptive services, and that the challenged regulations violate RFRA, the First and Fifth Am endments, and the Administrative Procedure Act (APA). Plain tiffs move for a prelim inary injunction on their RFRA claim, which should be deni ed because plaintiffs have not shown that they are likely t o
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succeed on the m erits of that claim. Moreover, all of plaintiffs’ claims fail, and thus should be dismissed in their entirety; alte rnatively, the Court should ente r summary judgment in favor of the government.
With respect to plaintiffs’ RFRA claim, plaintiffs cannot establish a substantial burden on their religious exercise—as they must—because th e regulations do not require plaintiffs to change their behavior in any significant way. Plaintiffs are not required to contract, arrange, pay, or refer for contraceptive coverage. To the contrary, plaintiffs are free to continue to refuse to do so, to voice their disapp roval of contraception, and to encourage their employees to refrain from using contraceptive services. Plaint iffs are required only to infor m their issuers/TPAs that th ey object to providing contracep tive coverage, which they have done or would have to do voluntarily even absent these regu lations in order to ensure that that th ey are not responsible for contracting, arranging, paying, or referring for such coverage. Plaintiffs can hardly claim that it is a violation of RFRA to require them to do almost exactly what they would do in the ordinary course.
Furthermore, plaintiffs’ challenge re sts largely on the theo ry that even the extre mely attenuated connection between them and the independent provision by issuers/TPAs of payments for contraceptive services to which plainti ffs object on religious grounds—but for which plaintiffs pay nothing—amounts to a substantial burden on their religious exercise. This cannot be. Regardless of how plaintiffs frame their religious beliefs, courts must independently consider whether a given law imposes a subs tantial burden on those beliefs. See Autocam Corp. v. Sebelius, No. 1:12-CV-1096, 2012 WL 6845677, at *6 ( W.D. Mich. Dec. 24, 2012), aff’d, __ F.3d __, 2013 WL 5182544 (6th Cir. Sept. 17, 2013). The regulations impose, at most, only the most de minimis burden on plaintiffs’ religious exercise— one too slight and attenuated to be “substantial” under RFRA, and little different from plaintiffs’ payment of salaries to their employees, which those employees can use to purchase contraceptive services if they so choose.
Moreover, even if the challenged regulations were deemed to impose a substantial burden on plaintiffs’ religious exercise, the regulatio ns would not violate RFRA because they are
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narrowly tailored to serve two compelling govern mental interests: improving the health of women and newborn children, and equalizing the provision of pr eventive care for wom en and men so that wom en can partic ipate in the work force, and society m ore generally, on an equal playing field with men.
Plaintiffs’ First Am endment claims are equa lly meritless. Indeed, nearly every cou rt to consider similar First Amendment challenges to the prior version of the regulations rejected the claims, and their analysis applies here. Nor do the regulations violate the Due Process Clause. Plaintiffs also cannot su cceed on their APA claims. They lack prudential stand ing to raise some of their arguments, and in any event, the regu lations are in accordance with the APA and with federal law. Finally, plaintiffs cannot satis fy the rem aining requirements for obtaining a preliminary injunction.
For these reasons, and those explained below, plaintiffs’ m otion for a preliminary injunction should be denied, and defendants’ motion to dism iss or, in the alternative, for summary judgment should be granted.
BACKGROUND Before the Patient Protection and Affordab le Care Act (“ACA”), Pub. L. No. 111-148, 124 Stat. 119 (2010), many Americans did not receive the preventive health care they needed to stay healthy, avoid or delay the onset of dis ease, lead productive lives, and reduce health care costs. Due largely to co st, Americans used pr eventive services at abou t half the recommended rate. See INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS 1920, 109 (2011) (“IOM R EP.”), AR at 317-18, 407. 1 Section 1001 of the ACA—which includes the preventive services coverage provision relevant here—seeks to cure this problem by m aking preventive care accessible and affordable for many more Americans. Specifically, the provision requires all group health plans and health insurance issuers that offer non-grandfathered group or individual health coverage to provide coverage for certain preventive services without cost-
1 Where appropriate, defendants have provided parallel citations to the Administrative Record (AR), which is being filed contemporaneously with this motion and brief.
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sharing, including, “[for] women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [(HRSA)].” 42 U.S.C. § 300gg-13(a)(4).2
Because there were n o existing HRSA gui delines relating to preventive care and screening for women, the Department of Health and Human Services (HHS) requested that the Institute of Medicine (IOM) de velop recommendations to implement the requirement to provide coverage, without cost-sharing, of pr eventive services for wom en. IOM REP. at 2, AR at 300. 3 After conducting an extensive science-based re view, IOM recommended that HRSA guidelines include, among other things, well-wom an visits; breastfeeding support; dom estic violence screening; and, as relevant here, “the full range of [FDA ]-approved contraceptive m ethods, sterilization procedures, and patient educat ion and counseling for wom en with reproductive capacity.” Id. at 10-12, AR at 308-10. FDA-approve d contraceptive m ethods include diaphragms, oral contraceptiv e pills, emergency contraceptives (such as Plan B and Ella), and intrauterine devices (“IUDs”). See id. at 105, AR at 403. IOM determ ined that coverage, without cost-sharing, for these services is necessary to increase access to such services, and thereb y reduce unintended pregna ncies (and the nega tive health outcomes that d isproportionately accompany unintended pregnancies) and promote healthy birth spacing. See id. at 102-03, AR at 400-01.4
2 This provision also applies to immunizations, cholesterol screening, blood pressure screening, mammography, cervical cancer screening, screening and counseling fo r sexually transmitted infections, domestic violence counseling, depression screening, obesity screening and counseling, diet counseling, hearing loss screening for newborns, autism screening for children, developmental screening for children, alcohol misuse counseling, tobacco use counseling and interventions, well-woman visits, breastfeeding support and supplies, and many other preventive services. See, e.g., U.S. Preventive Services Task Force A and B Rec ommendations, http://www.uspreventiveservicestaskforce.org/uspstf/uspsabrecs.htm (last visited Sept. 11, 2013). 3 IOM, which was established by the National Academy of Sciences in 19 70, is fun ded by Congress to provide expert advice to the federal government on matters of public health. IOM REP. at iv, AR at 289. 4 At least twenty-eight states have laws requiring health insurance policies that cover prescription drugs to also provide coverage for FD A-approved contraceptives. See Guttmacher Institute, State Policies in Brief: Insurance Coverage of Contraceptives (June 2013), AR at 1023-26.
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On August 1, 2011, HRSA adopted guidelines consistent with IOM’s recommendations, subject to an exemption relating to certain r eligious employers authorized by regulations issued that same day (the “2011 a mended interim final regulations”). See HRSA, Women’s Preventive Services: Required Health Plan Coverage Guid elines (“HRSA Guidelines”), AR at 283 -84.5 Group health plans established or maintained by these religious employers (and associated group health insurance coverage) are ex empt from any requirement to cover contraceptive services consistent with HRSA’s guidelines. See id.; 45 C.F.R. § 147.131(a).
In February 2012, the government adopted in final regulations the definition of “religious employer” contained in the 2011 a mended interim final regulations wh ile also creating a temporary enforcement safe harbor for non-gr andfathered group health plans sponsored by certain non-profit organizations with religious objections to contraceptive coverage (and any associated group health insurance coverage). See 77 Fed. Reg. 8725, 8726-27 (Feb. 15, 2012), AR at 213-14. The government committed to undertake a new rulemaking during the safe harbor period to adopt new regulations to further accommodate non-grandfathered non-profit religious organizations’ religious objections to covering contraceptive services. Id. at 8728, AR at 215. The regulations challenged here (the “2013 fina l rules”) repres ent the culm ination of that process. See 78 Fed. Reg. 39,869 (July 2, 2013), AR at 1-31; see also 77 Fed. Reg. 16,501 (Mar. 21, 2012) (Advance Notice of Proposed Rulem aking (ANPRM)), AR at 186-93; 78 Fed. Reg. 8456 (Feb. 6, 2013) (Notice of Proposed Rulemaking (NPRM)), AR at 165-85.
The 2013 final rules represent a significant accommodation by the governm ent of the religious objections of c ertain non-profit religious organizations while promoting two important policy goals. The regulations pr ovide women who work for non-profit religious organizations
5 To qualify for the religious employer exemption contained in the 2011 amended interim final regulations, an employer had to meet the following criteria:
(1) The inculcation of religious values is the purpose of the organization; (2) the organization primarily employs persons who share the religious tenets of the organization; (3) the organization serves primarily persons who share the religious tenets of the organization; and (4) the organization is a non profit organization as described in section 60 33(a)(1) and section
6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended. 76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011), AR at 220.
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with access to contracep tive coverage without co st sharing, thereby ad vancing the com pelling

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

health care. The regulations adva nce these interests in a nar rowly tailored fashion that does not

require non-profit religious organizations with re ligious objections to providing contraceptive

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

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

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

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

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

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

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

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

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

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

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

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

coverage requirement for group health plans

established or maintained by “eligible

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

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

that satisfies the following criteria:

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

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

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

(4) The organization self-certifies, in a f orm and manner specified by the S ecretary, that it satisf ies the criteria in paragra phs (b)(1) through (3) of this section, and makes such self-certification available for examination upon request by the first

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day of the first p lan year to which the accommodation in paragraph (c) of this section applies. 45 C.F.R. § 147.131(b); see also 78 Fed. Reg. at 39,874-75, AR at 6-7. Under the 2013 final rules, an eligible orga nization is not required “to contract, arrange, pay, or refer for contraceptive coverage” to w hich it has religious objections. 78 Fed. Reg. at 39,874, AR at 6. To be relieved of any such obligations, the 2013 fina l rules require only that an eligible organization complete a self-certification form stating that it is an elig ible organization and provide a copy of that self-cer tification to its issuer or TPA. Id. at 39,878-79, AR at 10-11. Its participants and benef iciaries, however, w ill still ben efit from separate payments for contraceptive services without cost sharing or other charge. Id. at 39,874, AR at 6. In the case of an organization with an insured gro up health pl an—such as Grace, with respect to its student health plan, and Biola—the orga nization’s health insurance issu er, upon receipt of the selfcertification, must provide separate paym ents to plan participants and ben eficiaries for contraceptive services without cost sharing, premium, fee, or other charge to plan participants or beneficiaries, or to the eligible organization or its plan. See id. at 39,875-77, AR at 7-9. In the case of an organization with a self-insured group health plan—such as Grace—the organization’s TPA, upon receip t of the self-certification, must provide or arrange separate p ayments for contraceptive services for part icipants and beneficiaries in the plan without cost-sharing, premium, fee, or other charge to plan participants or beneficiaries, or to the eligible organization or its plan. See id. at 39,879-80, AR at 11-12. Any costs incurred by the TPA will be reimbursed through an adjustment to Federally-facilitated Exchange (FFE) user fees. See id. at 39,880, AR at 12. The 2013 final rules generally apply to group h ealth plans and health insurance issuers for plan years beginning on or after January 1, 2014, see id. at 39,872, AR at 4, except that the amendments to the relig ious employer exemption apply to group health plans and group health insurance issuers for plan years beginning on or after August 1, 2013, see id. at 39,871, AR at 3.
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STANDARD OF REVIEW Defendants move to dism iss the Amended Complaint in its entir ety for failure to state a claim upon which relief m ay be granted pursuant to Federal Rule of Civ il Procedure 12(b)(6). Under this Rule, “the tenet th at a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a caus e of action, supported by m ere conclusory statem ents, do not suffice.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). Defendants also m ove to dism iss one count, see infra at Section I.F.3, under Federal Rule of Civil Procedure 1 2(b)(1) for l ack of subject matter jurisdiction. The party invoking federal jurisdicti on bears the burden of establishing its existence, a nd the Court m ust determine whether it has jurisdiction before addressing the merits of a claim. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 104 (1998). To the exte nt that th e Court m ust consider the administrative record in addition to the face of the Am ended Complaint, defendants move, in the alternative, for summ ary judgment pursuant to Federal Rule of Civil Procedure 56. A party is entitled to summary judgm ent where the administrative record demonstrates “that there is no g enuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). This memorandum also responds to plainti ffs’ motion for a prelim inary injunction on their RFRA claim . A prelim inary injunction is an “extraordinary rem edy that m ay only be awarded upon a clear showing that the pl aintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). A plaintiff “m ust establish that he is likely to succeed on the merits, that he is likely to suffer irreparabl e harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20; see United States v. NCR Corp., 688 F.3d 833, 837 (7th Cir. 2012).6
6 While the Seventh Circuit has applied the “sliding scale” analysis after Winter, see, e.g., Judge v. Quinn, 612 F.3d 537, 546 (7th Cir. 2010), and defendants acknowledge that this Court is bound by the Seventh Circuit on this issue, the government reserves the right to argue that the “sliding scale” an alysis is in consistent with Winter and subsequent Supreme Court precedent. In any event, the “sliding scale” analysis does not relieve plaintiffs of their burden to show that they are likely to succeed on the m erits. See Judge, 612 F.3d at 546; NCR Corp., 688 F.3d at 837.
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ARGUMENT I. PLAINTIFFS’ CLAIMS LACK MERIT
A. Plaintiffs’ Religious Freedom Restoration Act Claim Is Without Merit 1. The regulations do not substantia lly burden plaintiffs’ exercise of religion
Under RFRA, Pub. L. No. 103-141, 107 St at. 1488 (1993) (codified at 42 U.S.C. § 2000bb-1 et seq.), the federal government “shall not substantially burden a person’s exercise of religion” unless that burde n is the least restrictive means to further a compelling governm ental interest. 42 U.S.C. 2000 bb-1. Importantly, “only substantial burdens on the exercise of religion trigger the compelling interest requirement.” Henderson v. Kennedy, 253 F.3d 12, 17 (D.C. Cir. 2001) (emphasis added). “A substantial burden ex ists when government action puts ‘substantial pressure on an adherent to m odify his behavior and to violate his beliefs.’” Kaemmerling v. Lappin, 553 F.3d 669, 678 (D.C . Cir. 2008) (citing Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707, 718 (1981)); see Vision Church v. Vill. of Long Grove , 468 F.3d 975, 997 (7th Cir. 20 06) (noting same in the context of the Religious Land Us e and In stitutionalized Persons Act (RLUIPA)). “An inconsequential or de minimis burden on religious practice does not rise to this level, nor does a burden on ac tivity unimportant to the adherent’s religious scheme.” Kaemmerling, 553 F.3d at 678; see also Braunfeld v. Brown, 366 U.S. 599, 606 (1961) (“To strike down, without the m ost careful scrutiny, legislation which imposes only an indirect burden on the exercise of religion, i.e., legislation which does not m ake unlawful the religious practice itself, would radically restrict the oper ating latitude of the le gislature.”); Combs v. Homer-Center Sch. Dist., 540 F.3d 231, 262 (3d Cir. 2008) (Sciri ca, C.J., concurring) (“In our modern regulatory state, virtually all legislation (including neutral laws of general applicability) imposes an incidental burden at som e level by placing indirect costs on an individual’s activity. Recognizing this . . . [t]he federal governm ent . . . ha[s] identified a substantiality threshold as the tipping point for requiring heightened justifications for governmental action.”).
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For two reasons, plaintiffs cannot show that the challenged regulations substantially burden their religious exercise. 7 First, becau se the regulations require virtua lly nothing of
plaintiffs, and certainly do not require plaintiffs to modify their behavior in any meaningful way,
the regulations do not im pose any m ore than a de minimis burden on plaintiffs—let alone a
substantial one. Second, even if this Court were to find that th e regulations impose some burden
on plaintiffs’ religious exercise, any such burden would be far too attenuated to be substantial.
a. The regulations impose no more t han a de minimis burden on plaintiffs’ exercise of religion because the regulations require virtually nothing of plaintiffs
To put this case in its s implest terms, plaintiffs challenge regulations that require them to
do next to nothing, except what they would have to do even in the absence of the regulations.
Plaintiffs, as eligible organizations, are not required to contract, arrange, pay, or refer for
contraceptive coverage. To the cont rary, they are free to co ntinue to refuse to do so, to vo ice
their disapproval of contracep tion, and to encourage their em ployees to refrain from using
contraceptive services. Plaintiffs need only fulfill the self-certification requirement and provide
the completed self-certification to their is suers/TPAs. They need not provide paym ents for
contraceptive services to their employees. Instead, third parties—plaintiffs’ issuers/TPAs—
provide payments for contraceptive services, at no cost to plain tiffs. In short, with respect to
contraceptive coverage, plainti ffs need not do anything m ore than they did prior to th e
7 Plaintiffs repeatedly refer to cases involving for-profit companies that object to the contraceptive coverage regulations. See, e.g., Pls.’ Br. at 4-10. B ut those cases are ina pposite because for-profit corporations—unlike plaintiffs—do not qualify for the accomm odations for eli gible organizations. Furthermore, plaintiffs disregard the substantial body of opinions in the government’s favor. See Hobby Lobby S tores, Inc. v. Sebelius, 133 S. Ct. 641 (2012) (Sotomayor, J., in chambers) (denying application for injunction pending appellate review); Conestoga Wood Specialties Corp. v. Sebelius, 724 F.3d 377 (3d Cir. 2013); Autocam Corp. v. Sebelius, __ F.3d __, 2013 WL 5182544 (6th Cir. Sept. 17, 2013); Mersino Mgmt. Co. v . Sebelius, __ F. Supp. 2d __, 2013 WL 3546702 (E.D. Mich. July 11, 2013); M.K. Chambers Co. v. HHS, No. 13-cv-11379, 2013 WL 1340719 (E.D. Mich. Apr. 3, 2013); Eden Foods, Inc. v. Sebelius, No. 13-cv-11229, 2013 WL 1190001 (E.D. Mich. Mar. 22, 2013); Gilardi v. Sebelius, 926 F. Supp. 2d 273, 282 (D.D.C. 2013), appeal pending sub nom. Gilardi v. HHS, No. 13-5069 (D.C. Cir.); Conestoga Wood Specialties Corp. v. Sebelius, 917 F. Supp. 2d 394 (E.D. Pa. Jan. 11, 2013); Annex Medical, Inc. v. Sebelius, No. 12-cv-2804, 2013 WL 101927 (D. Minn. Jan. 8, 2013), appeal pending, No. 13-1118 (8th Cir.); Grote Indus., LLC v. Sebelius, 914 F. Supp. 2d 943 (S.D. Ind. 2012), appeal pending No. 13-1077 (7th Cir.); Autocam, 2012 WL 6845677; Korte v. U.S. Dep’t of Health & Human Servs., 912 F Supp. 2d 735 (S.D. Ill. 2012), appeal pending, No. 12-3841 (7th Cir.); O’Brien v. HHS, 894 F. Supp. 2d 1149 (E.D. Mo. 2012), appeal pending, No. 123357 (8th Cir.).
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promulgation of the challenged regulations—that is, to inform their issuers/TPAs that they object to providing contraceptive coverage in order to ensure that they are not responsible for contracting, arranging, paying, or referring for such coverage . Thus, the regulations do not require plaintiffs “to modify [their] religious behavior in any way.” Kaemmerling, 553 F.3d at 679. The Court’s inquiry should end here. A law cannot be a substantial burden on religious exercise when “it involves no ac tion or forbearance on [ plaintiffs’] part, nor . . . otherwise interfere[s] with any religious act in which [plaintiffs] engage[].” Kaemmerling, 553 F.3d at 679; see also Civil Liberties for Urban Be lievers v. City of Chi. , 342 F.3d 752, 761 (7th Cir. 2003) (holding, in the context of RLUIPA, that “a substa ntial burden on religious exercise is one that necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise . . . effectively impracticable”).
Because the regulations place no burden at all on plaintiffs, they plainly place no cognizable burden on their religio us exercise. Plaintiffs’ contrary argum ent rests on an unprecedented and sweeping theory of what it mean s for religious exercise to be burdened. Not only do plaintiffs wa nt to be free from contracting, arranging, paying, or referring for contraceptive services for their employees—w hich, under these regulations, they are—but plaintiffs would also prevent anyone else from providing such coverage to their em ployees, who might not subscribe to plaintiffs’ religious beliefs. That this is the de facto impact of plaintiffs’ stated objections is made clear by their assertion that RFRA is violated whenever they “trigger” a third party’s provision to plaintiffs’ employees of services to which plaintiffs object. Am. Compl. ¶¶ 153, 155; see Pls.’ Br. at 2. This theory would m ean, for example, that even the go vernment would not realistically be able to provide contrace ptive coverage to pl aintiffs’ employees, because such coverage would be “trigger[ed],” id., by plaintiffs’ objection to providing such coverage themselves. But RFRA is a shield, not a sword, see O’Brien, 894 F. Supp. 2d at 115860, and accordingly it does not prevent the g overnment from providing altern ative means of achieving important statutory objectives onc e it has provided a religious accommodation. Cf. Bowen v. Roy, 476 U.S. 693, 699 (1986) (“The Free Ex ercise Clause sim ply cannot be
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understood to require the Governm ent to conduct it s own internal affairs in ways that com port with the religious beliefs of particular citizens.”).
Plaintiffs’ RFRA challenge is s imilar to th e claim that the D.C. Circuit rejected in Kaemmerling. There, a federal prisoner objected to the FBI’s coll ection of his DNA profile. 553 F.3d at 678. In concluding that this collecti on did not substantially burden the prisoner’s religious exercise, the court reas oned that “[t]he extraction and storage of DNA information are entirely activities of the FBI, in which Kae mmerling plays no role an d which occur af ter the BOP has taken his fluid or tissue sample (to which he does not object).” Id. at 679. In the court’s view, “[a]lthough the government’s activities with his fluid or ti ssue sample after the BOP takes it may offend Kaemmerling’s religious beliefs, they cannot be sa id to ham per his religious exercise because they do not pressure [him] to modify his behavior and to violate his beliefs.” Id. (internal citation and q uotation marks omitted). The same is true he re, where th e provision of contraceptive services is “entirely [an] activit[y] of [a third party], in which [plaintiffs] play[] no role.” Id. As in Kaemmerling, “[a]lthough the [third party]’s activities . . . m ay offend [plaintiffs’] religious beliefs, they cannot be said to hamper [their] religious exercise.” Id.
Perhaps understanding the tenuous ground on whic h their RFRA claim rests, given that the regulations do not require them to contract, arrange, pay, or refer for contraceptive services, plaintiffs attempt to circumvent this problem by advancing the novel theory that the regulations require them to som ehow “facilitate acces s” to contraception coverage, a nd that it is this “facilitation” that vio lates plaintiffs’ religious beliefs. See, e.g., Pls.’ Br. at 4. B ut under the challenged regulations plaintiffs need only to self-certify that they object to providing coverage for contraceptive services and that they otherwis e meet the criteria for an eligible organization, and to share that self-certification with their issuers/TPAs. In other words, plaintiffs are required to inform their issu ers/TPAs that they object to providing contraceptive coverage, which they have done or would have to do vo luntarily anyway even absent these regulations in order to ensure that they are not res ponsible for contrac ting, arranging, paying, or referring for contraceptive coverage. The sole difference is that they must inform their issuers/TPAs that their
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objection is for religious reasons—a statement which they have alr eady made repeatedly in this litigation and elsewhere.
Furthermore, any burden im posed by the pu rely administrative self-certification requirement—which should take plaintiffs a matter of minutes—is, at most, de minimis, and thus cannot be “substantial” under RFRA. The s ubstantial burden hurdle is a high one. Living Water Church of God v. Charter Twp. of Meridian , 258 Fed. App’x 729, 734 (6th Cir. 2007); see also Kaemmerling, 553 F.3d at 678 (“An inconsequential or de minimis burden on religious practice does not rise to this level [of a substantial burden].”); Washington v. Klem, 497 F.3d 272, 279-81 (3d Cir. 2007); McEachin v. McGuinnis, 357 F.3d 197, 203 n.6 (2d Cir. 2004); Civil Liberties for Urban Believers, 342 F.3d at 761. Indeed, if this is not a de minimis burden, it is hard to see what would be. In fact, plaintiffs’ alternative proposals only confirm that the alleged “burden” of selfcertification is de minimis. They contend that, as an alternative to the accommodations developed by the Departm ents, the federal governm ent should somehow expand or create other public programs so as to provide contraceptive coverage to the w omen who participa te in plain tiffs’ group health plans. RF RA plainly does not require defendants to expand or create governm ent programs, particularly where, as here, th ere is no statutory authority to do so. See infra at 27-30. But, in any event, plaintiffs’ own proposals w ould entail the sam e putative “burden” as the existing accommodations, or an even greater burden: one way or another, plaintiffs would have to certify that they are elig ible for an ac commodation and that they object to providing contraceptive coverage, and the result would be that the wom en who participa te in their plan would get contraceptive coverage through another source such as Medicaid. The governm ent would of course, as it does with Medicaid, have to verify employment and/or dependent beneficiary status with the elig ible organization. The current a ccommodations are thus likely to require less of plaintiffs’ involve ment than would be required under a government program that would separately provide contraceptive coverage for their employees and dependents.8
8 Plaintiffs state th at, for self-insured eligible organizations, the self-certification form “designat[es]. . . th e third party administrator(s) as pla n administrator and claim s administrator for c ontraceptive benefits.” Pls.’ Br. at 2 (quoting 78 Fed. Reg. at 39,879, AR at 11). It is not clear what legal significance plaintiffs attach to this statement,
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Contrary to plaintiffs’ sugges tion, the m ere fact that plai ntiffs claim that the self-

certification requirement imposes a substantial bur den on their religious exercise does not m ake

it so. See Conestoga Wood Specialties Corp. v. Sebelius , 917 F. Supp. 2d 394, 413 (E.D. Pa .

2013) (“[W]e reject the notion . . . that a plain tiff shows a burden to be substantial simply by

claiming that it is.”), aff’d, 724 F.3d 377 (3d Cir. 2013). Under RF RA, plaintiffs are entitled to

their sincere religious beliefs, but they are not entitled to decide what does and does not impose a

substantial burden on such beliefs. Although “[

c]ourts are not arbiters of scriptural

interpretation,” Thomas, 450 U.S. at 716, “RFRA still requ ires the court to determ ine whether

the burden a law imposes on a plaintiff’s st ated religious belief is ‘substantial.’” Conestoga, 917

F. Supp. 2d at 413. Plaintiffs would lim it the C ourt’s inquiry to tw o prongs: first, whether

plaintiffs’ religious objection to the challenged regulations are sincere, and second, whether the

regulations apply significant pressure to plaintiffs to com ply. But plaintiffs ignore a critical third

criterion of the “substantial burden” test, which gives meaning to the term “substantial”: whether

the challenged regulations actually require plaintiffs to modify their behavior in a significant—or

more than de minimis—way. See Living Water Church of God , 258 Fed. App’x at 734-36

(reviewing cases); see also, e.g., Vision Church, 468 F.3d at 997; Garner v. Kennedy, 713 F.3d

237, 241-42 (5th Cir. 2013); Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338, 348-49

(2d Cir. 2007); Church of Scientology of Ga., Inc. v. City of Sandy Springs, Ga., 843 F. Supp. 2d

1328, 1353-54 (N.D. Ga. 2012). As plaintiffs the mselves appear to recognize, a “law

‘substantially burdens’ an exercise of religion if it com pels one ‘to perform acts undeniably at

odds with fundamental tenets of [one’s] re ligious beliefs,’” Pls.’ Br. at 6 (quoting Wisconsin v.

Yoder, 406 U.S. 205, 218 (1972)) (em phasis added), “or ‘put[s] substantial pressure on an

but what is cl ear is that self-in sured entities are subject to the same self-certification req uirement as th ird-partyinsured entities; they will use the same self-certification form, on which they will state o nly that they are nonprofit religious organizations with a religious objection to providing contraceptive coverage—nothing more. As discussed above, this self-certification requirement is, at most, a de minimis administrative burden that req uires no more of eligible entities—whether self-insured or third-party-insured—than what they would have to do anyway absent the challenged regulations.
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adherent to modify his behavior and violate his beliefs,’” id. (quoting Thomas, 450 U.S. at 71718) (emphasis added).9
Under plaintiffs’ alternative interpretation of RFRA, courts would play virtually no role in determining whether an alleged burden is “s ubstantial”—as long as a plaintiff’s religious belief is sincere, that woul d be the end of the inquiry. See Pls.’ Br. at 5. Plain tiffs would thus be allowed to evade RFRA’s thresho ld by sim ply asserting that the bur den on their religious exercise is “substantial,” thereby paradoxically reading the term “substantial” out of RFRA. See Gilardi, 926 F. Supp. at 282 (“[T]he Court declines to follow several recent cases suggesting that a plaintiff can m eet his burden of establishing that a law creates a ‘s ubstantial burden’ upon his exercise of religion simply because he claims it to be so.”); Autocam, 2012 WL 6845677, at *6 (“The Court does not doubt the sincerity of Plaintiff Kennedy’s decision to draw the line he does, but the Court still has a duty to assess whet her the claim ed burden—no m atter how sincerely felt—really amounts to a substantial burden on a person’s exercise of religion.”); see also Grote, 914 F. Supp. 2d at 949. “If every plaintiff were perm itted to unilaterally determ ine that a law burdened their religious beliefs, and courts were required to assume that such burden was substantial, simply because the plaintiff claimed that it was the case, then the standard expressed by Congress under the RFRA woul d convert to an ‘any burden’ standard.” Conestoga, 917 F. Supp. 2d at 413-14; see also Autocam, 2012 WL 6845677, at *7; Grote, 914 F. Supp. 2d at 952; Mersino, 2013 WL 3546702, at *16. 10 The result would be to subj ect every act of Congress to
9 In Hobby Lobby v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (en banc), a bare majority of the en banc Tenth Circuit concluded that, in determining whether a burden is sub stantial, a co urt’s “only task is to determine whether the claimant’s belief is si ncere, and if so, whether the government has applied substantial pressure on the clai mant to violate that belief.” Id. at 1137. The government believes that the majority’s ruling in Hobby Lobby was wrong on this and many other points. However, even if this Court were inclined to agree with the Tenth Circuit, the majority proceeded to rely on Abdulhaseeb v. Calbone, 600 F.3d 1301 (10th Cir. 2010), which makes clear that in order for a law to impose a su bstantial burden, it mu st require some actu al change in religious behavior—either forced participation in conduct or forced abstention from conduct. See Hobby Lobby, 723 F.3d at 1138 (citing Abdulhaseeb, 600 F.3d at 1315). The Hobby Lobby substantial burden analysis is also inapposite because for-profit corporations are not eligible for the accommodations. 10 RFRA’s legislative history makes clear that Congress did not intend such a relaxed standard. The initial version of RFRA prohibited the government from imposing any “burden” on free exercise, substantial or otherwise. Congress amended the bill to add the word “substantially,” “to make it clear that the compelling interest standards set forth in the act” apply “only to Government actions [that] place a substantial burden on the exercise of” religious liberty. 139
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strict scrutiny every tim e any plaintiff could arti culate a sincerely held religious objection to
compliance with that la w. The “most dem anding test known to constitutional law,” City of
Boerne v. Flores , 521 U.S. 507, 534 (1997), w ould thus be transform ed into a norm against which Congress must always legislate.11
For the reasons stated above, the regulati ons do not im pose a substantial burden on
plaintiffs’ religious exercise, a nd thus plaintiffs’ m otion for a preliminary injunction should be
denied, and plaintiffs’ RFRA clai ms (Count I of the Amended Complaint) should be dism issed
or summary judgment granted to defendants.
b. Even if the regulations were found to impose some more than de minimis burden on plaintiffs’ exercise of religion, any such burden would be far too attenuated to be “substantial” under RFRA
Although the regulations do not require plainti ffs to contract, arrange, pay, or refer for
contraceptive coverage, plaintiffs’ complaint appears to be that the regulations require plaintiffs
to indirectly facilitate conduct on the part of their employees that they find objectionable (i.e., the
use of certain contraceptives). But this complaint has no limits. An employer provides numerous
benefits, including a salary and ot her fringe benefits, to its em ployees and by doing so in som e
sense facilitates whatever use its employees make of those benefits. Plaintiffs not only seek to be
free from the requirement to contract, arra nge, pay, or refer for contraceptive coverage
themselves—which they are under these regulations —but also seek to prevent anyone else from
providing such coverage to their employees. But an employer has no right to control the choices
Cong. Rec. S14350-01, S14352 (daily ed. Oct. 26, 1993) (statement of Sen. Kennedy); see also id. (text of Amendment No. 1082). 11 Plaintiffs seem to recognize that this general imposition of strict scrutiny would be both doctrinally inappropriate and practically problematic. But it is no answer to blithely assert, as they do, that courts can prevent these problems by “screening claims for si ncerity.” Pls.’ Br. at 5. See Braunfeld, 366 U.S. at 606 (noting that we are a “cosmopolitan nation m ade up of people of almost every conceivable religious preference”); Autocam, 2012 WL 6845677, at *7 (“[Such a theory] would subject virtually every government action to a potential private veto based on a person’s ability to articulate a sincerely held objection tied in some rational way to a particular religious belief. Such a rule would paralyze the normal process of governing, and threaten to replace a generally uniform pattern of economic and social regulation with a patchwork array of theocratic fiefdoms. After all, almost every governmental decision involves policy choices. And religiously inclined pers ons can often since rely trace their pre ferred policy outcome to some religious and moral principle. . . . Applying RFRA in a way that permits the disappointed side simply to opt out because it tied its opposition to a religious or moral principle would be a reci pe for chaos, not a meaningful protection of religious liberty.”).
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of its em ployees, who m ay not share its religious beliefs, when m aking use of their benefits. Those employees have a legitimate interest in access to the preventive services coverage made available under the challenged regulations.
Indeed, courts have held that claim s raised b y for-profit com panies challenging the contraceptive coverage regulati ons, which require them to pr ovide the relevant coverage themselves, are too attenuated to amount to a substantial burden unde r RFRA. Any burden on plaintiffs, which are elig ible for the accommodations, is a fortiori too attenuated to be substantial. For example, the district court in Conestoga reasoned that the ultim ate decision of whether to use contraception “rests not with [the employer], but with [the] e mployees” and that “any burden imposed by the regulations is too at tenuated to be considered substantial.” 917 F. Supp. 2d at 414-15. The Conestoga district court further explained that the indirect nature of any burden imposed by the regulations distinguishe d them from the statu tes challenged in Yoder, Sherbert, Thomas, and Gonzales. See id. at 415. Other courts, too, have relied on sim ilar reasoning to reject similar plaintiffs’ RFRA claims. See, e.g., Autocam, 2012 WL 6845677, at *6 (“The incremental difference between providing the benefit directly, rather than indirectly, is unlikely to qualify as a substantial burden on the Autocam Plaintiffs.”); O’Brien, 894 F. Supp. 2d at 1158-60 (“[RFRA] is not a m eans to force on e’s religious practices upon others. RFRA does not protect against the slight burden on religi ous exercise th at arises when one’s m oney circuitously flows to support th e conduct of other free-exercise -wielding individuals who hold religious beliefs that differ from one’s own.”).12
As these courts concluded, the preventive services coverage regulations result in only an indirect impact on for-profit companies, which must provide contraceptive coverage themselves. Any burden on plaintiffs and sim ilar eligible organizations that qualify for the acco mmodations is even m ore attenuated. Not only are plaintiffs separated from the use of contraception by “a series of ev ents” that must occu r before the use of contraceptiv e services to whic h plaintiffs
12 See also Grote v. Sebelius, 708 F.3d 850 (7th Cir. 2013) (Rovner, J., dissenting); Eden Foods, 2013 WL 1190001 at *4; Annex Medical, 2013 WL 101927 at *4-*5; Grote, 914 F. Supp. 2d at 949-52.
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object would “come into play,” Conestoga, 917 F. Supp. 2d at 414-15, but they are also further insulated by the fact that a third party—plaintiffs’ issuers/TPAs—and not plaintiffs, will actually contract, arrange, pay, and refer for such services, and thus plaintiffs are in no way subsidizing— even indirectly—the use of prev entive services that they find objectionable. Under plaintiffs’ theory, their religious exercise is substantially burdened w hen one of their em ployees and her health care provider m ake an i ndependent determination that th e use o f certain co ntraceptive services is appropriate, and when such serv ices are paid for exclusiv ely by plain tiffs’ issuers/TPAs—with none of the cost being passe d on to plaintiffs—and no adm inistration of the payments by plaintiffs, solely be cause plaintiffs self-certified that they have religious objections to providing contraceptive coverage and so informed their issuers/TPAs.
But a burden sim ply cannot be “substantial” under RFRA when it is attenuated. Cases that find a substantial burden uniform ly involve a direct burden on the pl aintiff rather than a burden imposed on another entity. See, e.g., Potter v. Dist. of Columbia, 558 F.3d 542, 546 (D.C. Cir. 2009); see also Grote, 914 F. Supp. 2d at 951-52; Conestoga, 917 F. Supp. 2d at 413-14. A plaintiff cannot establish a substa ntial burden on his relig ious exercise by invoking this type of trickle-down theory; to c onstitute a substantial burden within the m eaning of RFRA, the burden must be imposed on the plaintiff himself. See Conestoga, 917 F. Supp. 2d at 411, 413; Korte v. U.S. Dep’t of Health & Human Servs. , 912 F. Supp. 2d 735, 748 (S.D. Ill. 2012), appeal pending, No. 12-3841 (7th Cir.); Autocam, 2012 WL 6845677, at *7; Grote, 914 F. Supp. 2d at 950-51.13 Here, of course, there is no such direct burden. In fact , given that any paym ent for
13 Thomas is not to the contrary. In Thomas, the Suprem e Court recognized that “a compulsion may certainly be indirect and still constitute a substantial burden, such as the denial of a benefit found in Thomas.” Conestoga, 917 F. Supp. 2d at 415 n.15. But that is not so where the burden itself is indirect, as it is here. See id.; Gilardi, 926 F. Supp. 2d at 283. As previously explained, in Hobby Lobby, 723 F.3d 1114, a bare majority of the en banc Tenth Circuit concluded that the word “substantial” in RFRA refers to the “intensity of coercion” rather than to the directness or indirectness of the burden, if any, on a plaintiff’s religious exercise. Id. at 1137-40. The Tenth Circuit’s conclusion that the substantial burden requirement relates to the intensity of the coercion, however, is in consistent with Kaemmerling, discussed above, as well as other decisions that have analyzed “substantial burden” in terms of the degree to which the challenged law directly imposes a requirement or prohibition on religious practice. See 553 F.3d at 678-79; Living Water Church of God, 258 F. App’x at 734; McEachin, 357 F.3d at 203 n.6; Civil Liberties for Urban Believers, 342 F.3d at 761. And, again, the Hobby Lobby substantial burden analysis is inapplicable to this case. See supra note 9.
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contraceptive services is made by plaintiffs’ issuers/TPAs, the regulations have even less impact on plaintiffs’ religious exercise than plaintiffs’ paym ent of salaries to their em ployees, which those employees can use to purchase contraceptives. See O’Brien, 894 F. Supp. 2d at 1160; see also Conestoga, 917 F. Supp. 2d at 414 (“The f act that Conestoga’s employees are free to look outside of their insurance coverage and pay for and use any contra ception . . . through the salary they receive from Conestoga, amply illustrates this point.”); Grote, 708 F.3d at 861 (Rovner, J., dissenting) (“To the extent this burdens the Grotes’ religious interests, it is wor th considering whether the burden is different in kind from th e burden of knowing that an e mployee might be using his or her Grote Industries paycheck (or money in a health care reimbursement account) to pay for contraception him or herself.”); Autocam, 2012 WL 6845677, at *6.
Plaintiffs remain free t o refuse t o contract, arrange, pay, or refer for contraceptive coverage; to voice their disapproval of contra ception; and to encourage their employees t o refrain from using contraceptive services. The preventive services coverage regulations therefore affect plaintiffs’ relig ious practice, if at all, in a highly attenuated way. In short, because th e preventive services co verage regulations “are several degrees rem oved from imposing a substantial burden on [plaintiffs],” O’Brien, 894 F. Supp. 2d at 1160, the Court should dism iss plaintiffs’ RFRA claim, or grant summary judgment to defendants, even if it finds—contrary to the government’s argument—that the challenged re gulations impose some burden on plaintiffs’ religious exercise.
2. Even if there w ere a substantial burden on religious exercise, the regulations serve compelling governmental interests and are the least restrictive means to achieve those interests a. The regulations significantly advance compelling govern mental interests in public health and gender equality
Even if plaintiffs were able to de monstrate a substantial burden on their religious exercise, they would not prevail because th e challenged regulations are justified by two compelling governmental interests, and are the leas t restrictive means to achieve those interests. First, the promotion of public health is unquestionably a compelling governmental interest. Mead
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v. Holder, 766 F. Supp. 2d 16, 43 (D.D.C. 2011); see also, e.g., Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487, 498 (10th Cir. 1998); Dickerson v. Stuart, 877 F. Supp. 1556, 1559 (M.D. Fla. 1995). And the challenged regu lations further this compelling interest by “expanding access to and utilization of recomm ended preventive services for wom en.” 78 Fed. Reg. at 39,887, AR at 19.
The primary predicted benefit of the preventi ve services coverage regulations is that “individuals will experience im proved health as a result of reduced tran smission, prevention or delayed onset, and earlier treatment of disease.” 75 Fed. Reg. 41,726, 41,733 (July 19, 2010), AR at 233; see also 77 Fed. Reg. at 8728, AR at 215; 78 Fed. Reg. at 39,872, 39,887, AR at 4, 19. “By expanding coverage and eliminating cost sharing for recommended preventive services, [the regulations are] expected to increas e access to and utilization of these services, which are no t used at optim al levels today.” 75 Fed. Reg. at 41,733, AR at 233; 78 Fed. Reg. at 39,873 (“Research [ ] shows that cost sharing can be a significan t barrier to access to con traception.” (citation omitted)), AR at 5.14
Increased access to the full range of FDA-approved contraceptive services is a key part of these predicted health outcom es, as unintended pregnancies have proven in m any cases to have negative health consequences for women and developing fetuses. See 78 Fed. Reg. at 39,872, AR at 4. As IOM concluded in identifying services recommended to “prevent conditions harmful to women’s health and well-being,” unintended pre gnancy may delay “entry into prenatal care,” prolong “behaviors that present risks for the de veloping fetus,” and cause “depression, anxiety, or other conditions.” IOM REP. at 20, 103-04, AR at 318, 401-02. Contraceptive coverage further helps to avo id “the in creased risk of adverse pregnancy outcomes for pregnancies that are too closely spaced.” Id. at 103, AR at 401; see also 78 Fed. Reg. at 39,872 (“Short interpregnancy intervals in particular h ave been as sociated with low birth weight, pr ematurity, and s mall-for-
14 Plaintiffs miss the point, therefore, when they attempt to minimize the magnitude of these interests by arguing that the contraceptive methods to which they object are “widely available.” See Pls.’ Br. at 9. Although a majority of employers cover FDA-approved contraceptives, see IOM REP. at 109, AR at 407, many women forgo preventive services because of cost-s haring imposed by their health plans, see id. at 1 9-20, 109, AR at 3 17-18, 407. The challenged regulations eliminate that cost-sharing. 78 Fed. Reg. at 39,873, AR at 5.
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gestational age births.” ) (citing studies), AR at 4. And “[c]ontracep tives also h ave medical benefits for wom en who are co ntraindicated for pregnancy, and there are demonstrative preventive health benefits from contraceptives relating to co nditions other than p regnancy (for example, prevention of certain cancers, m enstrual disorders, and acne.” 78 Fed. Reg. at 39,872, AR at 4; see also IOM Rep. at 103-04 (“[P]regnancy m ay be contraindicated for wom en with serious medical conditions such as pulm onary hypertension . . . and cyanotic hea rt disease, and for women with the Marfan Syndrome.”), AR at 401-02.
Closely tied to this interest is a related, but separate, compelling interest that is furthered by the regulations: assuring that women have equal access to hea lth care services. 78 Fed. Reg. at 39,872, 39,887, AR a t 4, 19. As the Suprem e Court explained in Roberts v. U.S. Jaycees, 468 U.S. 609 (1984), there is a fundam ental “importance, both to the individual and to society, of removing the barriers to econom ic advancement and political and social integration that have historically plagued certain disa dvantaged groups, including wom en.” Id. at 626. Thus, “[a]ssuring women equal access to . . . goods, privileges, and advantages clearly furthers compelling state interes ts.” Id. By including in the ACA gende r-specific preventive health services for wom en, Congress m ade clear that th e goals and benefits of effective preventive health care apply equally to women, who might otherwise be excluded from such benefits if their unique health care needs were not taken into acc ount in the ACA. As ex plained by members of Congress, “women have different health need s than m en, and these needs often generate additional costs. Women of childbearing age spend 68 percent more in out-of-pocket health care costs than men.” 155 Cong. Rec. S12106-02, S12114 (da ily ed. Dec. 2, 2009) (s tatement of Sen. Feinstein); 78 Fed. Reg. at 39,887, A R at 19; IO M REP. at 19, AR at 31 7. These costs result in women often forgoing preventive care and place wom en in the workforce at a disadvantag e compared to their male coworkers. See, e.g., 155 Cong. Rec. S12265-02, S12274 (daily ed. Dec. 3, 2009) (statement of Sen. Murray); 78 Fed. R eg. at 39,887, AR at 19; IOM R EP. at 20, AR at 318. Congress’s attem pt to equalize the provision of preventive health ca re services, with the resulting benefit of wom en being able to contribute to the same degree as m en as healthy and
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productive members of society, fu rthers a co mpelling governmental interest. Cf. Catholic
Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67, 92-93 (Cal. 2004).15
Although the challenged regulations further these two compelling governmental interests,
while simultaneously accommodating the religious objections of eligible organizations, plaintiffs
maintain that the inte rests underlying the regulations cannot be considered com pelling when
millions of people are not protected by the regu lations at the moment. Pls.’ Br. at 8. But this is
not a case where underinclusive enforcem ent of a law suggests that the governm ent’s
“supposedly vital interest” is not really com pelling. Church of the Lukumi Babalu Aye, Inc. v.
City of Hialeah, 508 U.S. 520, 546-47 (1993). Many of the “exemptions” referred to by plaintiffs
are not exemptions from the preventive s ervices coverage regulations at all, but are instead
provisions of the ACA that exclude individuals and entities from other requirements imposed by
the ACA. Or they ref lect the go vernment’s attempts to balance th e compelling interests
underlying the challenged regulations against othe r significant interests supporting the com plex
administrative scheme created by the ACA. See Lee, 455 U.S. at 259 (“The Court has long
15 In arguing that the government’s interests are not compelling, plaintiffs suggest the government must separately analyze the impact of and ne ed for the regulations as to each and every employer and employee in America. See Pls.’ Br. at 8. But this level of specificity would be impossible to establish and would render this regulatory scheme—and potentially every regulatory scheme that is challenged due to religious objections—completely unworkable. See United States v. Lee , 455 U.S. 252, 259-60 (1982). In practice, courts have not required the government to analyze the impact of a regulation on the single entity seeking an exemption, but have conducted the inquiry with respect to all similarly situated individuals or organizations. See, e.g., id. at 260 (considering the impact on the tax system if all religious adherents—not just the plaintiff—could opt out); United States v. Oliver, 255 F.3d 588, 589 (8th Cir. 2001) (per curiam) (“Oliver has argued a one-man exemption should be made, however, there is nothing so peculiar or special with Oliver’s situation which warrants an exce ption. There a re no safeguards to prevent similarly situated individuals from assertin g the same privilege and leading to uncontrolled eagle harvesting.”); Dole v. S henandoah Baptist Church, 899 F.2d 1389, 1398 (4th Cir. 1990) (“There is n o principled way of exempting the school without exempting all other sectarian schools and thereby the thousands of lay teachers and staff members on their payrolls.”); see also, e.g. , Graham v. Comm’r, 822 F.2d 8 44, 853 (9th Cir. 1987), overruled in part on other grounds by Navajo Nation v. U.S. Forest Serv., 479 F.3d 1024, 1033 (9th Cir. 2007) (en banc); United States v. Winddancer, 435 F. Supp. 2d 687, 697 (M.D. Tenn. 2006). Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 435 (2006), is not to the contrary. To be sure, the Court rejected “slipperyslope” arguments for refusing to accommodate a particular claimant. See 546 U.S. at 435-36. But it construed the scope of the requested exemption as e ncompassing all members of the plaintiff religious sect. See id. at 433. Similarly, the exemption in Yoder, 406 U.S. 205, encompassed all Amish children; and the exemption in Sherbert v. Verner, 374 U.S. 398 (1963), encompassed all individuals who had a religious objection to working on Saturdays. See O Centro, 546 U.S. at 431. The Court’s warning in O Centro against “slippery-slope” arguments was a rejection of arguments by analogy—that is, speculation that providing an exemption to one group will lead to exemptions for other non-similarly situated groups. It was not an invitation to ignore the reality that an exemption for a particular claimant might necessarily lead to an exemption for an entire category of similarly situated entities.
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recognized that balance must be struck between the valu es of the com prehensive social security system, which rests on a com plex of actuarial factors, and the con sequences of allowing religiously based exemptions.”); Winddancer, 435 F. Supp. 2d at 695-98 (recognizing that the regulations governing access to eagle parts “strik e a delicat e balance” between competing interests). And the existing exceptions do not undermine the governm ent’s interests in a significant way. See Lukumi, 508 U.S. at 547; S. Ridge B aptist Church v. Indus. Comm’n of Ohio, 911 F.2d 1203, 1208-09 (6th Cir. 1990) (rejectin g the plaintiff’s ar gument that the existence of exem ptions indicates that a law is not the lea st restrictive means of achieving a compelling interest where the exem ptions do not undermine that interest); see also 78 Fed. Reg. at 39,887, AR at 19.
For example, the grandfathering of certain hea lth plans with respect to certain provisions of the ACA is not sp ecifically limited to the p reventive services coverage regulations. See 42 U.S.C. § 18011; 45 C.F.R. § 147.140. In fact, the effect of grandfathering is not really a permanent “exemption,” but rather, over the long term, a transition in the m arketplace with respect to several provisions of the ACA, incl uding the preventive servi ces coverage provision. See 78 Fed. Reg. at 39,887 n.49, AR at 19. The gra ndfathering provision reflects Congress’s attempts to balance competing interests—specifically, the interest in spreading the benefits of the ACA, including those provided by the preventive serv ices coverage provision, and the interest in maintaining existing c overage and easing the transition into the new regulatory regime established by the ACA—in the context of a complex statutory scheme. See 75 Fed. Reg. 34,538, 34,546 (June 17, 2010).
This incremental transition does no thing to call into question the compelling interests furthered by the p reventive services coverag e regulations. Even unde r the grandfathering provision, it is projected that more group health plans will tr ansition to the requirements under the regulations as time goes on. Defendants have estimated that a majority of group health plans will have lo st their gran dfather status by the end of 2013. See id. at 34,552; see also Kaiser Family Foundation and Health Research & Educa tional Trust, Em ployer Health Benefits 2012
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Annual Survey at 7-8, 190 (indicating that 58 per cent of firm s had at l east one grandfathered health plan in 2012, down from 72 percent in 2011, and that 48 percent of covered workers were in grandfathered health plans in 2012, down from 56 percent in 2011), AR at 663-64, 846. Thus , any purported adverse effect on the com pelling interests underlying the regulatio ns will be quickly mitigated, which is in s tark contrast to the permanent exemption plaintiffs seek. Plaintiffs would have this Court b elieve that an interest cannot tru ly be “com pelling” unless Congress is willing to impose it on everyone all at once despite competing interests, but plaintiffs offer no support for such an untenable proposition. See Legatus v. Sebelius, 901 F. Supp. 2d 980, 994 (E.D. Mich. 2012) (“[T]he gra ndfathering rule seems to be a reasonable plan for instituting an incredibly complex health care law while balancing competing interests.”).
Moreover, 26 U.S.C. § 4980H(c)(2) does not, as plaintiffs claim, exempt small employers from the preventive services coverage regulations. See 42 U.S.C. § 300gg-13(a); 78 Fed. Reg. at 39,887 n.49, AR at 19. Instead, it excludes em ployers with fewer than fifty full-tim e equivalent employees from the employer responsibility provision, meaning that, starting in 2015, such employers are not subject to the possibility of a ssessable payments if they do not provide health coverage to their full-time employees and their dependents. See 26 U.S.C. § 4980H(c)(2). Small businesses that do offer non-grandfathered health coverage to their em ployees are required to provide coverage for recomm ended preventive services, including c ontraceptive services, without cost-sharing. 78 Fed. Reg. at 39,887 n.49, AR at 19. And there is reason to believe that small employers will co ntinue to of fer health coverage to their em ployees, because the ACA, among other things, provides tax incentives for small businesses to encourage the purchase of health insurance. See 26 U.S.C. § 45R. But even if a s mall business were to choose not to offer health coverage, em ployees of such business could ge t health insurance coverage that is facilitated by other ACA provisions—prim arily those establishing both sm all group market and individual market health insurance exchanges and those establishing tax credits to m ake the purchase of coverage through such exchanges mo re affordable—and the c overage they receive
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through such exchanges will include coverage of all recommended preventive services, including contraception. 78 Fed. Reg. at 39,887 n.49, AR at 19.
The only true exem ption from the preventive services coverage regulations is the exemption for the group health plans of religious employers. 45 C.F.R. § 147.131(a). But there is a rational distinction between this narrow exception and the expansion plaintiffs seek. Houses of worship and their in tegrated auxiliaries that object to contraceptive coverage on religious grounds are, as a group, m ore likely than other employers to e mploy people of the sa me faith who share the sam e objection, and who would theref ore be less likely than other people to use contraceptive services even if such se rvices were covered under their plan. See 78 Fed. Reg. at 39,874, 39,877, AR at 6, 19. In any event, it would be perverse to hold that the governm ent’s provision of a lim ited religious exemption eliminates its compelling interest in the regulation, thus effectively extending the same exemption to anyone else who wants it under RFRA. Such a reading of RFRA woul d discourage the governm ent from accommodating relig ion, the exac t opposite of what Congress intended to accomplish in enacting RFRA.
Granting plaintiffs the m uch broader exemption they request w ould undermine defendants’ ability to en force the regulations in a rational manner. See Gonzales v. O Centro Espirita Beneficente Uniao Do Ve getal, 546 U.S. 418, 435 (2006). We are a “cosm opolitan nation made up of people of almost every conceivable religious preference,” Braunfeld, 366 U.S. at 606; see also S. Ridge Baptist Church , 911 F.2d at 1211, and m any people object to various medical services. If any organization with a religious objection were able to claim an exemption from the operation of th e preventive services coverage regulations—even where the regulations require virtually nothing of the organizatio n—it is dif ficult to se e how defendants could administer the regulations in a m anner that would achieve Congress’s goals of improving the health of wom en and newborn children and equa lizing the coverage o f preventive services for women. See United States v. Israel , 317 F.3d 768, 772 (7th Cir. 2003) (recognizing that plaintiff’s RFRA logic “would l ead to significant adm inistrative problems for the [governm ent] and open the door to a . . . proliferation of cl aims”). Indeed, wom en who receive their health
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coverage through employers like plaintiffs would face negativ e health and other outcom es because they had obtained employment with an organization that objects to its employees’ use of contraceptive services, even when those servic es are paid for, adm inistered, and otherwise provided by a third party. See id. (noting consequences “for the public and the government”); 77 Fed. Reg. at 8728, AR at 215; 78 Fed. Reg. at 39,887, AR at 19.
b. The regulations are the least re strictive means of advancing the government’s compelling interests
When determining whether a particular regulato ry scheme is the “least res trictive,” the appropriate inquiry is whether the individual or organization with religious objections, and those similarly situated, can be exempted from the scheme—or whether the schem e can otherwise be modified—without undermining the government’s compelling interests. See, e.g., United States v. Schmucker, 815 F.2d 413, 417 (6th Cir. 1987) (describing the least restrictive m eans test as “the extent to which accommodation of defendant would im pede the state’s objectives”); United States v. Wilgus, 638 F.3d 1274, 1289-95 (10th Cir. 2011). Th e government is not required “to do the im possible—refute each and every conc eivable alternative regulation s cheme.” Wilgus, 638 F.3d at 1289. Instead, the governm ent need only “refute the alternative schem es offered by the challenger.” Id.
Instead of explaining how plaintiffs and sim ilarly situated eligible organizations could be exempted from the regulations without significant dam age to the governm ent’s compelling interests, plaintiffs conjure up, without any statutory support, several brand ne w statutory and regulatory schemes—most of which would requi re the governm ent to pay for contraceptive coverage—that they claim would be less restrictive. See Pls.’ Br. at 10. Yet plaintiffs fail t o recognize that such alternatives would be incom patible with the fundame ntal statutory schem e set forth in the ACA, which plaintif fs do not challenge in this lawsuit. Congress did not adopt a single (government) payer system financed th rough taxes and instead opted to build on the existing system of e mployment-based coverage. See H.R. Rep. No. 111-443, pt. II, at 984-86 (2010). Plaintiffs point to no statutory authority for any of their proffered less restrictive
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alternatives. Nor is there any indication that Congress would ha ve contemplated that agency action could be invalidated under RFRA bec ause the agency, in discharging its statutorily delegated authority, failed to adopt an alternative scheme for which it lacked statutory authority. Thus, even if defendants wanted to adopt one of plaintiffs’ non-employer-based alternatives, they would be constrained by the statute from doing so. See 78 Fed. Reg. at 39,888, AR at 20.
Furthermore, plaintiffs themselves indicate that they “in no way recommend [their proposed] alternatives, and, indeed, m ight oppose many of them as a matter of policy.” Pls.’ Br. at 10. Indeed, as noted above, it is not clear why the governm ent’s provision of contraceptive coverage to women based upon their employer’s objection to providing it would not be subject to exactly the sam e RFRA claim that plaintiffs advance here. By their own admission then, plaintiffs’ proposals would do little—if anythi ng—to satisfy their religious objections, and therefore should not be c onsidered viable less restrictive alternatives. See New Life Baptist Church Acad. v. Town of E. Longmeadow , 885 F.2d 940, 950-51 (1st Ci r. 1989) (Breyer, J.) (considering the lim ited extent to which an alterna tive would alleviate a re ligious burden in rejecting it as a “less restrictive alternative,” even though the plaintiff had expressed a preference for the alternative over the ch allenged requirements). An eligible org anization’s objection to providing or paying for contracepti ve coverage would still “facili tate” its ava ilability—in this case, by the government—and the eligible organization would likely be called upon to verify or certify matters such as the non-provision of c ontraceptive coverage, and e mployment or plan beneficiary status.
Finally, even if plaintiffs w ould be satisfied by their proposed alternatives, just because plaintiffs can devise an entire ly new legislative and adm inistrative scheme does not m ake that scheme a feasible less restrictive means, see Wilgus, 638 F .3d at 1289; Adams v. Comm’r of Internal Revenue, 170 F.3d 173, 180 n.8 (3d Cir. 1999) (“ A judge would be unim aginative indeed if he could not co me up with something a little less ‘drastic’ or a little less ‘restrictive’ in almost any situation, and thereby enable himself to vote to strike legisl ation down.’” (quotations omitted)), particularly where such alternatives would co me at enormous adm inistrative and
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financial cost to the government. A proposed alternative scheme is not an adequate alternative— and thus not a viable les s restrictive means to achieve a compelling interest—if it is not feasible. See, e.g., New Life Baptist, 885 F.2d at 947; Graham, 822 F.2d at 852. In determ ining whether a proposed alternative scheme is feasible, courts of ten consider the additional adm inistrative and fiscal costs of the schem e. See, e.g., S. Ridge Baptist Church , 911 F .2d at 1206; Fegans v. Norris, 537 F.3d 897, 905-06 (8th Cir. 2008); United States v. Lafley, 656 F.3d 936, 942 (9th Cir. 2011); New Life Baptist, 885 F.2d at 947. Defendants consider ed plaintiffs’ alternatives and determined that they w ere not feasible becau se the agen cies lacked statutory authority to implement them, they would i mpose considerable new costs and other burdens on the government, and they would otherwise be impractical. See 78 Fed. Reg. at 39,888, AR at 20; see also, e.g., Lafley, 656 F .3d at 942; Gooden v. Crain , 353 F. App’x 885, 888 (5th Cir. 2009); Adams, 170 F.3d at 180 n.8.
Nor would the proposed alternatives be equa lly effective in advancing the government’s compelling interests. See 78 Fed. Reg. at 39,888, AR at 20; see also, e.g. , Kaemmerling, 553 F.3d at 684 (finding that m eans was least restrictive where no a lternative means would achieve compelling interests); Murphy v. State of Ark. , 852 F.2d 1039, 1042-43 (8th Cir. 1988) (sam e). As discussed above, Congress determ ined that th e best way to achieve the goals of the ACA, including expanding preventive services coverage , was to build on the existing em ployer-based system, and the anticipated benefits of the regulations are attribut able not only to the fact that recommended contraceptive services will be available to women with no cost-sharing, but also to the fact that these services will be available through the exis ting employer-based system of health coverage through which women will f ace minimal logistical and a dministrative obstacles to receiving coverage of their care. Plaintiffs ’ alternatives, by contrast, have none of these advantages. They would require establis hing entirely new governm ent programs and infrastructures or fundam entally altering an ex isting one, and would a lmost certainly require women to take burdensom e steps to find out a bout the availability of and sign up for a new benefit, thereby ensuring that fewe r women would take advantage of it. See 78 Fed. Reg. at
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39,888, AR at 20. Nor do plaintiffs offer any sugge stion as to how these program s could be integrated with the em ployer-based system or how wom en would obtain governm ent-provided preventive services in practice. Thus, plain tiffs’ proposals—in additi on to raising m yriad administrative and logistical difficulties and being unauthorized by any statute and not funded by any appropriation—are less likely to achieve the co mpelling interests furthered by the regulations, and therefore do not represent reasonable less restrictive means. Id.
Because plaintiffs have failed to put forth vi able less restrictive alternatives that would achieve the government’s compelling interests, the Court should reject plain tiffs’ argument that the regulations fail strict scrutiny.
B. The Regulations Do Not Violate the Free Exercise Clause The Supreme Court has made clear that a la w that is neutral and generally applicable does not run afoul of the Free Exercise Clause even if it prescribes cond uct that an individual’s religion proscribes or has the incidental effect of burdening a particular religious practice. Empt. Div., Dep’t of Human Res. of Or. v. Smith , 494 U.S. 872, 879 (1990); see also Lukumi, 508 U.S. at 531-32. “Neutrality and general applicability are interrelated.” Lukumi, 508 U.S. at 531. A law is neutral if it does not target religiously motivated conduct either on its face or as ap plied. Id. at 533. A neutral law has as its purpose som ething other than the disapproval of a particular religion, or of religion in general. Id. at 545. A law is generally app licable so long as it does not selectively impose burdens only on conduct motivated by religious belief. Id. Unlike such selective laws, the preventive se rvices coverage regulations are neutral and generally applicable. Indeed, nearly every court to have consid ered a free exercise challeng e to the prior version of the regulations has rejected it, concluding that the regulations are neutral and generally applicable.16 “The regulations were passed, not with the object of interfering with
16 See MK Chambers, 2013 WL 1340719, at *5; Eden Foods, 2013 WL 1190001, at *4-5; Conestoga, 917 F. Supp. 2d at 409-10; Grote, 914 F. Supp. 2d at 952-53; Autocam, 2012 WL 6845677, at *5; Korte, 912 F. Supp. 2d at 74447; Hobby Lobby Stores, Inc. v. Se belius, 870 F. Supp. 2d 1278, 1289-90 (W.D. Okla. 2012), rev’d on ot her grounds, 2013 WL 3216103; O’Brien, 894 F. Supp. 2d at 1160-62; see also Catholic Charities of Diocese of Albany v. Serio, 859 N.E.2d 459, 468-69 (N.Y. 2006) (rejecting similar challenge to state law); Catholic Charities of Sacramento, 85 P.3d at 81-87. But see Sharpe Holdings, Inc. v. HHS, No. 2:12-CV-92-DDN, 2012 WL 6738489, at
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religious practices, but instead to improve women’s access to health care and lessen the disparity between men’s and wom en’s healthcare costs.” O’Brien, 894 F. S upp. 2d at 1161. The regulations reflect expert medical recommendations about the medical necessity of contraceptive services, without regard to any religious m otivations for or against such services. See, e.g., Conestoga, 917 F. Supp. 2d at 410 (“It is clear from the history of the regulations and the report published by the Institute of Medi cine that the purpose of the [r egulations] is n ot to ta rget religion, but instead to prom ote public health and gender equality.”); Grote, 914 F. Supp. 2d at 952-53 (“[T]he purpose of the regulations is a secu lar one, to wit, to promote public health and gender equality.”).
The regulations, moreover, do not pursue their purpose “only agai nst conduct motivated by religious belief.” Lukumi, 508 U.S. at 545; see United States v. Amer, 110 F.3d 873, 879 (2d Cir. 1997) (concluding law that “punishe[d] conduc t within its reach wit hout regard to whether the conduct was religiously m otivated” was generall y applicable). The regulations apply to all non-grandfathered health plans that do not qualif y for the religious employer exem ption or the accommodations for eligible organizations. Thus, “it is just not true . . . that the burdens of the [regulations] fall on religious orga nizations ‘but almost no others.’” Am. Family Ass’n v. FCC, 365 F.3d 1156, 1171 (D.C. Cir. 2004) (quoting Lukumi, 508 U.S. at 536); see O’Brien, 894 F. Supp. 2d at 1162; Autocam, 2012 WL 6845677, at *5; Grote, 914 F. Supp. 2d at 953.
The existence of express exceptions or accommodations for objectively defined categories of entities, like grandf athered plans, religious employers, and eligible organizations, “does not mean that [the regula tions do] not apply generally.” Autocam, 2012 WL 6845677, at *5. “General applicability does not mean absolute universality. ” Olsen v. Mukasey , 541 F.3d 827, 832 (8th Cir. 2008); accord Axson-Flynn v. Johnson, 356 F.3d 1277, 1298 (10th Cir. 2004); Am. Friends Serv. Comm. Corp. v. Thornburgh , 951 F.2d 957, 960-61 (9th Cir. 1991) (concluding employer verification statute was generally appli cable even though it exem pted
*5 (E.D. Mo. Dec. 31, 2012); Geneva Coll. v. Sebel ius, No. 2:12–cv–00207, 2013 WL 838238, at * 24-26 (W.D. Penn. Mar. 6, 2013).
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independent contractors, household em ployees, and employees hired prior to November 1986 because exemptions “exclude[d] entire, o bjectively-defined categories of em ployees”); Intercommunity Ctr. for Justice & Peace v. INS, 910 F.2d 42, 44 (2d Cir. 1990) (same). “Instead, exemptions undermining ‘general applicability’ are those tending to suggest disfavor of religion.” O’Brien, 894 F. Supp. 2d at 1162. The exception for grandfathered plans is available on equal term s to all em ployers, whether religi ous or secular. And the religious employer exemption and elig ible organization accommodations serv e to accom modate religion, not to disfavor it. Id.; see also Conestoga , 917 F. Supp. 2d at 410 (“The fact that exem ptions were made for religious em ployers . . . . shows that the gov ernment made efforts to a ccommodate religious beliefs, which counsels in favor of the regulations’ neutrality.”); Grote, 914 F. Supp. 2d at 953 (“[C]arving out an exem ption for defi ned religious entities . . . tends to support an argument in favor of neutrality. ”). Indeed, the religious employer exemption “presents a strong argument in favor of neutrality” by “demonstrating that the object of the law was not to infringe upon or restrict practices because of their religious m otivation.” O’Brien, 894 F. Supp. 2d at 1161 (quotations om itted). The reg ulations are not rendered unlawful “m erely because the [religious employer exemption] does not extend as far as Plaintiffs wish.” Grote, 914 F. Supp. 2d at 953. Thus, these categorical exceptions and accommodations do not trigger strict scrutiny.
Finally, Plaintiffs’ unsupported assertions that the regulations were “designed” to “target the Schools and others like them ,” and that defendants promulgated the regulations “in order to suppress the religious exercise of the Schools and others,” Am . Compl. ¶ 233-34, are m ere rhetorical bluster. There is no indication that the regulations are anything ot her than an effort to increase women’s access to and utilizati on of recommended preventive services. See O’Brien, 894 F. Supp. 2d at 1161; Conestoga, 917 F. Supp. 2d at 410; Grote, 914 F. Supp. 2d at 952-53. And it cannot be disputed that defendants have made extensive efforts—through the religious employer exemption and the eligible organization accommodations—to accommodate religion in
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ways that will not un dermine the goal of ensu ring that women have access to coverage fo r recommended preventive services without cost sharing.17
For these reasons Count II fails. C. The Regulations Do Not Violate the Establishment Clause “The clearest command of the Esta blishment Clause is th at one re ligious denomination cannot be officially preferred over another.” Larson v. Valente , 456 U.S. 228, 244 (1982) (emphasis added). A law that discrim inates among religions by “aid[ing] one r eligion” or “prefer[ring] one religion over anothe r” is subject to strict scrutiny. Id. at 246; see also Olsen v. DEA, 878 F.2d 1458, 1461 (D.C. Cir. 1989) (observing that “[a] statutory exemption authorized for one church alone, and for which no other c hurch may qualify,” creates a “den ominational preference”). Thus, for exam ple, the Supreme Court has struck down on Establishm ent Clause grounds a state statute that was “d rafted with the explicit inte ntion” of requiring “particular religious denominations” to comply with registration and reporting requirements while excluding other religious denominations. Larson, 456 U.S. at 254; see also Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet , 512 U.S. 687, 703-07 (1994) (striking down statute that created special school district for religious enclave of Satm ar Hasidim because it “singl e[d] out a particu lar religious sect for specia l treatment”). The Court, on the ot her hand, has upheld a statute that provided an exemption from military service for persons who had a conscientious objection to all wars, but not those who objected to only a particular war. Gillette v. United States, 401 U.S. 437 (1971). The Court explained that the statu te did not discriminate among religions because “n o particular sectarian affiliation” was require d to qualify for conscien tious objector status. Id. at 450-51. “[C]onscientious objector status was availa ble on an equal basis to both the Quaker and the Roman Catholic.” Larson, 456 U.S. at 247 n.23; see also Cutter v. Wilkinson, 544 U.S. 709, 724 (2005) (upholding RLUIPA a gainst Establishment Clause challenge because it did not
17 Even if the regulations were not neutral or generally applicable, plaintiffs’ free exercise challenge still would fail because the regulations satisfy strict scrutiny. See supra.
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“confer[] . . . privileged status on any particular religious sect” or “single[] out [any] bona fide

faith for disadvantageous treatment”).

Like the statutes at is sue in Gillette and Cutter, the preventive s ervices coverage

regulations do not grant any de nominational preference or ot herwise discriminate among

religions. It is of no mom ent that the religious employer exemption and accommodations for

eligible organizations apply to some employers but not others. “[T]he Establishment Clause does

not prohibit the government from [differentiating between organizations based on their structure

and purpose] when granting religious accommodations as long as the distinction[s] drawn by the

regulations . . . [are] not ba sed on religious affiliation.” Grote, 914 F. Supp. 2d at 954; accord

O’Brien, 894 F. Supp. 2d at 1163; see also, e.g., Children’s Healthcare Is a Legal Duty, Inc. v.

Min De Parle, 212 F.3d 1084, 1090-93 (8th Cir. 2000); Droz v. Comm’r of IRS , 48 F.3d 1120,

1124 (9th Cir. 1995) (concluding that religious exem ption from self-employment Social Security

taxes did not violate the Establishment Clause even though “some individuals receive

exemptions, and other individuals with identical beliefs do not”); Catholic Charities of the

Diocese of Albany , 859 N.E.2d at 468-69 (“This ki

nd of distinctio n—not between

denominations, but between religious organizations based on the nature of their activities—is not

what Larson condemns.”). Here, the distinctions established by the regulations are not so drawn.

The regulations’ definitions of religious em ployer and eligible organization “do[] not

refer to any particular denom ination.” Grote, 914 F. Supp. 2d at 954. The exemption and

accommodations are av ailable on a n equal bas is to o rganizations affiliated with a ny and a ll

religions. The regulations, therefore, do not di scriminate among religions in violation of the

Establishment Clause. Indeed, every court to have considered an Establishment Clause challenge

to the prior version of the regul ations—which also included a requirement that the organization

be an organization as described in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code

of 1986, as am ended—has rejected it. See, e.g., O’Brien, 894 F. Supp. 2d at 1162 (upholding

prior version of religious employer exemption because it did “not differentiate between religions,

but applie[d] equally to all denom inations”); Conestoga, 917 F. Supp. 2d at 416-17 (sam e);

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Grote, 914 F. Supp. 2d at 954 (same); see also Liberty Univ., Inc. v. Lew , __ F.3d__, 2013 W L 3470532, at *17-18 (4th Cir. July 11, 2013) (upholding another religious exemption contained in the ACA against an Establishm ent Clause challenge because the exemption “makes no explicit and deliberate distinctions between sects” (quotation omitted)).
“As the Suprem e Court has frequently articu lated, there is space betw een the religion clauses, in which there is ‘room for play in the joints;’ governm ent may encourage the free exercise of religion by granti ng religious acco mmodations, even if not required by the Free Exercise Clause, without running afoul of the Establishm ent Clause.” O’Brien, 894 F. Supp. 2d at 1163 (citations om itted). Accommodations of religion are poss ible because the type of legislative line-drawing to which th e plaintiffs object in this case is cons titutionally permissible. Id.; Conestoga, 917 F. Supp. 2d at 417; see, e.g., Walz v. Tax Commission of New York, 397 U.S. 664, 672-73 (1970) (upholding property tax exem ption “to religious organizations for religious properties used solely for religious worship”); Corp. of the Presiding Bishop v. Amos , 483 U.S. 327, 334 (1987) (upholding Title VII’s exem ption for religious organizations).18 For all of these reasons, Count III fails.19
D. The Regulations Do Not Violate the Right to Free S peech or Expressive Association Plaintiffs’ free speech claims fare no better. The right to freedom of speech “prohibits the government from telling people what they m ust say.” Rumsfeld v. Forum for Academic & Inst. Rights, Inc. (“FAIR”), 547 U.S. 47, 61 (2006). But the preven tive services coverage regulations do not “compel speech”—by plaintiffs or any othe r person, employer, or entity—in violation of the First Amendment. Nor do they limit what plaintiffs may say. Plaintiffs remain free under the regulations to express whatever views they may have on the use of contraceptive services (or any
18 Even if th e regulations discriminate among religions (and they do not), they are valid under the Establishment Clause, because they satisfy strict scrutiny. See supra; Larson, 456 U.S. at 251-52. 19 Plaintiffs also that the regulations interfere with plaintiffs’ “internal decisions.” Am. Compl. ¶¶ 243-48. But that is merely a restatement of plaintiffs’ substantial burden theory, which fails for reasons explained already.
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other health care services) as well as their views about the regulat ions. Plaintiffs, moreover, may encourage their employees not to use contraceptive services.
Indeed, every court to review a Free Speech challenge to the prior contraceptive-coverage regulations has rejected it, in part, because the regulations deal with conduct. See MK Chambers Co. v. U.S. Dep’t of Health & Human Servs., Civil Action No. 13–11379, 2013 WL 1340719, *6 (E.D. Mich. Apr. 3, 2013) (“Li ke the [law at issue in FAIR], the contraceptive requirem ent regulates conduct, not speech.” (quotations omitted)); Briscoe v. Sebelius, 927 F. Supp. 2d 1109 (D. Colo. 2013) (“The plai ntiffs cite no authority and I am not aware of any authority holding that such conduct qualifies as speech so as to trigger First Amendment protection.”); Conestoga, 917 F. Supp. 2d at 418; Grote, 914 F. Supp. at 955; Autocam, 2012 WL 6845677, *8; O’Brien, 894 F. Supp. 2d at 1165-67; see also Catholic Charities of Sacramento, 85 P.3d at 89; Catholic Charities of Diocese of Albany , 859 N.E.2d at 465. The accomm odations likewise regu late conduct by relieving an eligible organization of th e obligation “to contract, arrange, pay, or refer for contraceptive coverage” to which it has religious objections. 78 Fed. Reg. at 39,874, AR at 6.
The regulations also do not requ ire plaintiffs to subsidize an y conduct that is “inherently expressive.” FAIR, 547 U.S. at 66; see also United Sta tes v. O’Brien, 391 U.S. 367, 376 (1968) (recognizing that some forms of “symbolic speec h” are protected by the First Amendment). As an initial matte r, the re gulations explicitly prohibit plaintiffs’ issuers/TPAs from imposing any cost sharing, premium, fee, or other charge on plaintiffs or their plans with respect to the separate payments for contraceptive services m ade by the issuers /TPAs. See 78 Fed. Reg. at 39,880, AR at 12. P laintiffs, therefore, are not funding or subsidizing anything pert aining to contraceptive coverage. Moreover, even if plaintiffs played so me role in an issuer’s or TPA’s provision of payments for contraceptive services (and they do not), making payments for health care serv ices is not the sort of conduct the Suprem e Court has recognized as inherently expressive. See Conestoga, 917 F. Supp. 2d at 418; Grote, 2012 W L 6725905, at *10; Autocam, 2012 WL 6845677, at *8 (“Including contraceptiv e coverage in a health car e plan is not inherently expressive conduct.”); O’Brien, 894 F. Supp. 2d at 1166-67 (“Givi ng or receiving health care is
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not a s tatement in the s ame sense as wearing a black arm band or burni ng an Am erican flag.” (internal citations omitted)); Catholic Charities of Sacramento , 85 P.3d at 89 (“a law regulating health care benefits is n ot speech”); Diocese of Albany, 859 N.E.2d at 465; see also FAIR, 547 U.S. at 65-66 (m aking space for m ilitary recruiters on cam pus is not conduct that indicates colleges’ support for, or sponsorship of, recruiters’ message).
Furthermore, plaintiffs are wrong when th ey contend that the regulations require plaintiffs to “facilitate access” to “counseling related to abortion.” Compl. ¶ 254. The regulations simply require coverage of “education and c ounseling for women with reproductive capacity.” HRSA Guidelines, AR a t 130-31. The conversations that may take place between a patient and her doctor cannot be known or screened in ad vance and may cover any num ber of options. To the extent that p laintiffs intend to argue that the cov ered education and counseling is objectionable because som e of the conversati ons between a doctor and one of plaintiffs’ employees might be supportive of som ething to which th ey object, accepting th is theory would mean that the Firs t Amendment is violated by the m ere possibility of an em ployer’s disagreement with a potential subject of disc ussion between an em ployee and her doctor, and would extend to all such intera ctions, not just those that ar e the su bject of the challenged regulations. The First Am endment does not require such a drastic result. See, e.g., Conestoga , 2013 WL 140110, at *17.
Finally, the regulations do not violate the righ t to expressive association. To be s ure, “[t]he right to speak is often exercised most effectively by combining one’s voice with the voices of others.” FAIR, 547 U.S. at 68. “If the governm ent were free to restrict indi viduals’ ability to join together and speak, it could essentially silence views that the F irst Amendment is intended to protect.” Id. But the preventive services coverage re gulations do not interfere with plaintiff’ s right of expressive association. The regulations do not interfere in any way with the com position of plaintiffs’ workforces, f aculties, or student bodies. See Boy Scouts of Am. v. Dale , 530 U.S. 640, 656 (2000) (holding Boy Scouts’ freedom of expressive association was violated by law requiring organization to accept gay man as a scoutmaster); Roberts, 468 U.S. at 623 (concluding
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statute that forced group to accept women against its desires was subject to strict scrutiny). The regulations do not force plaintiffs to hire employees they do not wish to hire or to adm it students they do not desire to be a part of their schools . Moreover, plaintiffs, as well as their em ployees and students, are free to associate to voice thei r disapproval of the use o f contraception and the regulations. Even the statu te at iss ue in FAIR, which required law schools to allow m ilitary recruiters on campus if other recruiters were allowed on campus, did not violate the law schools’ right to expression association. 547 U.S. at 68-70. The preventive services coverage regulations do not even im plicate plaintiffs’ right. See MK Chambers, 2013 WL 1340719, at *6 (rejecting expressive association challenge to prior version of regulations); Diocese of Albany, 859 N.E. 2d at 465 (upholding sim ilar state law because it “does [not] compel [plaintiffs] to a ssociate, or prohibit them from associating, with anyone”).
Accordingly, plaintiffs’ free speech and e xpressive association claim s—Counts IV and VI—fail.
E. The Regulations Do Not Violate the Due Process Clause Plaintiffs’ claim that the prev entive services coverage regulati ons violate the Fifth Amendment’s Due Process Clause is m isdirected and baseless. A law is not uncon stitutionally vague unless it “fails to provide a person of ordinary intellig ence fair notice of what is prohibited” or “is so standardless that it author izes or encourages seriously d iscriminatory enforcement.” United States v. Williams, 553 U.S. 285, 304 (2008). Courts relax these standards where, as here, the law in question imposes civil rather than criminal penalties and does no t “interfere[] with the rig ht of free speech or of association .” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99 (1982). In any event, “perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity.” Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2719 (2010). Plaintiffs do not even attem pt to identif y a source of vag ueness or confusion in the regulations. See Am. Compl. ¶¶ 261-62. And plaintiffs evid ently have no difficulty determ ining what the regulations require of them ; at the very least, then, the regulations are not vague as
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applied to P laintiffs. See U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers , 413 U.S. 548, 579 (1973) (“Surely, there seem ed to be little question in the m inds of the plaintiffs who brought this lawsuit as to the m eaning of the law, or as to whet her or not the conduct in which they desire to engage was or was not prohibited by the Act.”); Parker v. Levy, 417 U.S. 733, 756 (1974) (“One to whose conduct a statute clearly applies may not successfully challenge it for vagueness.”). As in Humanitarian Law Project , “the dispositive point” is that th e regulations’ terms “are clear in their application to plainti ffs’ proposed conduct, which m eans that plaintiffs’ vagueness challenge must fail.” 130 S. Ct. at 2720.
Finally, plaintiffs m isunderstand the regulati ons when they assert that the regulations provide defendants with “unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations that possess religious beliefs.” A m. Compl. ¶ 264. That is incorrect. Under the regulations at issue he re, an organization that is or ganized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (a)(3)(A)(iii) of the Internal Revenue Code of 1986, as am ended, qualifies for the exem ption. 45 C.F.R. § 147.131(a). And an organization that satisfies the four criteria to be an “eligible organization” is eligible for the accom modations. Id. § 137.131(b). There is ther efore simply no discretion that is left to defendants to decide who is exempt or who is accommodated; the regulations set out the criteria for both determinations.20 Similarly, there is no m erit to plaintiffs’ allegation that the regulations—which contain specific criteria—will lead to discriminatory enforcement. For these reasons, Count V fails.
F. Plaintiffs’ APA Claims Fail 1. The regulations were promulgated in accordance with the APA
Plaintiffs assert that def endants failed to comply with the APA’s notice and comm ent procedures and the ACA’s tim ing provisions. These allegations are baseles s. The APA’s rulemaking provisions generally require that agencies provide notice of a proposed rule, invite
20 The regulations permitted HRSA to create a religious employer exemption, and identified the criteria for such an exemption, and HRSA did so in its August 1, 2 011 action. See HRSA Guidelines. Any employer that m eets the criteria of a “religious em ployer” is exempt from the contraceptive-coverage requirement. See id.; see, e.g., Grote, 2012 WL 6725905, at *8.
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and consider public comme nts, and adopt a final rule that includes a statement of basis an d purpose. See 5 U.S.C. § 553(b), (c). Defendants complied with these requirements.21
As to the challenged regulations, defe ndants issued the ANPRM on March 21, 2012, and solicited comments on it. 77 Fed. R eg. 16,501. Defendants then considered those comments and issued the NPRM on February 6, 2013, requesting comments on the proposals contained in it. 78 Fed. Reg. at 8457, AR at 166. Defendants received over 400,000 comments, and the preamble to the 2013 final rules contains a detailed discussi on both of the comments defendants received and of defendants’ responses to those comments. See 78 Fed. Reg. at 39,871-39,888, AR at 3-20. The mere fact that the regulations as ultim ately issued may not satisfy the p references of each and every commenter is certainly no t evidence that those comments were not considered. Given the range of interests and views am ong commenters, it is unlikely—if not im possible—that any regulation will be fully in line with the comments made by every commenter.
Plaintiffs also contend the regulations violate the ACA because plaintiffs believe they did not exist in final form for one year prio r to going into ef fect. This argum ent is based on a misunderstanding of both the ACA and the regulat ions. The provision of the ACA to which plaintiff refers, 42 U.S.C. § 300gg-13(b), requires only that there be a minim um interval of not less than one year between the date on which a recommendation or guideline is issued—here, the HRSA Guidelines—and the plan year for which the coverage of the services included in that recommendation or guideline m ust take effect. See 75 Fed. Reg. at 41,729, AR at 229. That requirement is clearly satisfied here: HR SA published its guide lines on August 1, 2011, see HRSA Guidelines, supra, and these regulations apply for plan years beginning on or after January 1, 2014, see 78 Fed. Reg. at 39,870, AR at 2. Nothing in the ACA prevents defendants from amending the regulations as they have done here, and because the required in terval relates only to the issuance of new recommendations or guidelines, nothing in the ACA requires
21 To the extent plaintiffs attempt to raise any alleged insufficiencies or improprieties as to the prior, interim final rules, they are simply irrelevant. The regulations plaintiffs challenge here are an entirely different set of regulations. The relevant question is whether defendants complied with the APA as to these regulations, and as shown below, there is no question that they did.
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defendants to provide an interval of one year between the promulgation of these amendments and the date on which the required coverage must take effect.
2. The regulations are neither arbitrary nor capricious Plaintiffs’ claim that the re gulations are arb itrary and ca pricious is belied by the policymaking path discussed above, which illustrates that the regulations are neither arbitrary nor capricious. See Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (agency action m ust be upheld so l ong as “the agency’s path m ay reasonably be discerned”); DKT Mem’l Fund, Ltd. v. Agency for Int’l Dev. , 887 F.2d 275, 281 (D.C. Cir. 1989) (“The APA has never been construed to grant to th is or any other court th e power to review the wisdom of policy decisions of the President.”). Th e preamble to the rules al so sets out that pa th in detail, see 78 Fed. Reg. at 39,871-88, AR at 3-20, and ther e can be no serious question that it can be reasonably discerned. Similarly, plaintiffs’ brazen claim that defendants failed to consider the constitutional and statutory im plications of the regulations is flatly contradicted by the record, which explicitly discusses that very issue. See 78 Fed. Reg. at 39,886-88, AR at 18-20. Instead of pointing to anywhere in the r ecord where defendants did not “articulate a satisfactory explanation for [their] action,” State Farm, 463 U.S. at 43, plaintiffs resort to complaining about the content of th e regulations themselves. Just as the fact that plaintiffs are disappointed that the regulations are not in keeping w ith all of their comm ents does not m ean that defendants failed to consider plaintiffs’ comments, plaintiffs’ contrary policy preferences do not render the regulations arbitrary or capricious. The regul ations are consistent with th e proposals contained in the ANPRM and the NPRM, and, as the re cord reflects, represent the logical outgrowth of those proposals and the hundreds of thousands of comments received.
3. The regulations do not violate restrictions relating to abortion Plaintiffs contend the regulations violate the APA because they conflict with three federal statutes dealing with abortion: section 1303(b)(1 ) of the ACA, the W eldon Amendment, and the Church Amendment. Plaintiffs appear to reason that, becau se the p reventive services coverage
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regulations require group health plans to cover emergency contraception, such as Plan B, they in

effect require plaintiffs to provide coverage for abortions in violation of federal law.

This set of argum ents should be rejected at the outset because plaintiffs lack prudential

standing to assert it. The doctrine of prudential standing requires that a plaintiffs’ claim fall

within “the zone of interests to be prote cted or regu lated by th e statute or constitutional

guarantee in question.” Ass’n of Data Processing Serv. Orgs., Inc. v. Camp , 397 U.S. 150, 153

(1970). But the necessary link between plain tiffs and each of these statu tes is missing here. See

Dialysis Ctrs., Ltd. v. Schweiker, 657 F.2d 135, 138 (7th Cir. 1981); O’Brien, 894 F. Supp. 2d at

1167-68 (holding that plaintiff lacked prudential standing to raise sim ilar claims).

Section 1303(b)(1) of the ACA provi des that “nothing in this title . . . shall be construed to

require a qualified health plan to provide

coverage of [abortion services],” 42 U.S.C.

§ 18023(b)(1)(A)(i), but plaintiffs are neither health insurance issuers nor purchasers of a qualified health plan.22 They therefore do not fall within the zone of interests to be protected by

the statute in question. Sim ilarly, the W eldon Amendment denies funds made available in the

Consolidated Appropriations Act of 2012 to any fe deral, state, or local agency, program , or

government that “subjects any inst itutional or individual health car e entity to discrim ination on

the basis that the health care entity does not p rovide, pay for, provide coverage of, or refer for

abortions.” Pub. L. No. 112-74, §§ 506, 507, 125 St at. 786, 1111-12 (Dec. 23, 2011). Plaintif fs

are not institutional or individual health care entities, see id. at § 507(d)(2), so they are not within

this statute’s zone of interests either. Finally, the Church Amendment protects individuals from

being required to “perform or assist in the performance of any part of a health service program or

research activity funded . . . by the S ecretary of Health and Hum an Services if his perform ance

or assistance . . . would be cont rary to his religious beliefs or moral convictions.” 42 U.S.C. §

22 A “q ualified health plan,” within the meaning of this provision, is a h ealth plan that has been cert ified by the health insurance exchange “through which such plan is offered” and that is offered by a health insurance issuer. 42 U.S.C. § 18021(a)(1). Health insurance exchanges are to be set up by states n o later than January 1, 2014. Id. § 18031. Plaintiffs’ health insurance plans were n ot purchased on a health insurance exchange, and so none is a “qualified health plan.”
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300a-7(d). By merely providing a health plan to its employees, plaintiffs are not required to, and in fact do n ot, “perform or assi st in the performance” of a “hea lth service program or research activity funded . . . under a program administered by the Secretary of Health and Hum an Services” within the meaning of the Church Amendment. See Gray v. Romero, 697 F. Supp. 580, 590 n.6 (D.R.I. 1988). Nor are plaintiffs “individual[ s]” under that provision. They are therefore not within the Church Amendment’s zone of interests either.
Even if the Court were to reach th e merits of these claim s, plaintiffs’ prem ise that the contraceptive coverage regulati ons require abortion coverage is fundamentally incorrect. The regulations do not require that a ny health plan cover abortion as a preventive service, or that it cover abortion at all, as that term is defined in federal law. Rather, the regulations require only that non-grandfathered, non-exempt and non-accommodated group health plans cover all FDAapproved “contraceptive m ethods, sterilization procedures, and patient education and counseling,” as prescribed by a health care provider. See HRSA Guidelines, supra. And the government has made clear that the preventive services covered by the regulations do not include abortifacient drugs.23 Although plaintiffs believe that Pl an B, ella, and certain IUDs are abortifacient drugs or cause abortions, neither the government nor this Court is required to accept that characterization, which is inconsistent with the FDA’s scientific assessment and with federal law. While plaintiffs’ religious beliefs may define abortion m ore broadly than federal law to include emergency contraception and certain IUDs, statutory interpretation requires that terms be construed as a m atter of law and not in acco rdance with any particular indiv idual’s views or beliefs. E.g., Gov’t Empls. Ins. Co. v. Benton, 859 F.2d 1147, 1149 (3d Cir. 1988).
In recommending what contraceptive services should be covered by health plans w ithout cost-sharing, the IOM Report iden tified the contraceptives that have been approved by the FDA as safe and effective. See IOM R EP. at 10, AR at 308. And the list of FDA-approved
23 HealthCare.gov, Affordable Care Act Rules on Expanding Access to Preventive Services for Women (August 1, 2011), available at http://www.hhs.gov/healthcare/facts/factsheets/2011/08/womensprevention08012011a.html (last visited Sept. 27, 2013); see also IOM REP. at 22 ( recognizing that abortion services are outsi de the scope of permissible recommendations), AR at 320.
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contraceptives includes emergency contraceptives such as Plan B. See id. at 105, AR at 403. The

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

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

than abortifacients. See Prescription Drug Products; Certain Combined Oral Contraceptives fo r

Use as Postcoital Em ergency Contraception, 62 Fed. Reg. 8610, 8611 (Feb. 25, 19 97) (noting

that “emergency contraceptive pills are not effective if the wom an is pregnant” and that there is

“no evidence that [em ergency contraception] will have a n adverse e ffect on an established

pregnancy”); 45 C.F.R. § 46.202 (f) (“Pregnancy encompasses the period of ti me from

implantation until de livery.”). In lig ht of this conclusion by the FDA, HHS inf ormed Title X

grantees, which are required to o ffer a rang e of accep table and effective fam ily planning

methods—and may not offer abortion except under limited circumstances (e.g., rape, incest, or

when the life of the wom an would be in danger)—t hat they “should consider the availability of

emergency contraception the sam e as any other method which has been established as safe and

effective.” Office of Population

Affairs, Memorandum (Apr. 23, 1997),

http://www.hhs.gov/opa/pdfs/opa-97-02.pdf (last visited Sept. 27, 2013); see also 42 U.S.C. §§

300, 300a-6.

Because they reflect a settled understanding of FDA-approved contraceptives that is in

accordance with existin g federal laws prohibiti ng federal f unding for certain abo rtions, the

regulations are consistent with over a decade of regulatory policy and practice and thus cannot be deemed contrary to any law dea ling with abo rtion.24 See Bhd. of R.R. Signalmen v. Surface

Transp. Bd., 638 F.3d 807, 815 (D.C. Cir. 2011) (giving particular deference to an agency’s

longstanding interpretation) (citing Barnhart v. Walton, 535 U.S. 212, 220 (2002)).

24 Representative Weldon, the sponsor of the Weldon Amendment, himself did not consider the word “abortion” in the statute to include FDA-approved emergency contraceptives. See 148 Cong. Rec. H6566, H6580 (daily ed. Sept. 25, 2002) (“The provision of cont raceptive services has neve r been defined as abortion in Federal statute, nor has emergency contraception, what has commonly been interpreted as th e morning-after pill. . . . [U]nd er the current FDA policy[,] that is co nsidered contraception, and it is no t affected at all by this statute.”). His stat ement leaves little doubt that the Weldon Amendment was not intended to apply to emergency contraceptives. See Fed. Energy Admin. v. Algo nquin SNG, Inc., 426 U.S. 548, 564 (1976) (indicating that a st atement of o ne of the legislation’s sponsors deserves to be accorded substantial weight in interpreting a statute).
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Plaintiffs’ APA claims—collected at Count VII— thus fail. II. PLAINTIFFS CANNOT ESTABLI SH IRREPARABLE HARM, AND AN
INJUNCTION WOULD INJURE THE GOVERNMENT AND THE PUBLIC “The loss of First Am endment freedoms, for even m inimal periods of tim e, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). Even assuming arguendo that sam e rule applies to a st atutory claim under RFRA, plaintiffs have not shown that the challenged regula tions violate their First Amendm ent or RFRA rights, so there has been no “loss of First Am endment freedoms” for any period of time, id. In this respect, the merits and irreparable injury prongs of the prel iminary injunction analysis merge together, and plaintiffs cannot show irreparable injury w ithout also sho wing a likelihood of success on th e merits, which they cannot do. See McNeilly v. Land, 684 F.3d 611, 621 (6th Cir. 2012). Plaintiffs’ motion f or preliminary injunctive relief suffers from an addition al, critical flaw: The harm that Biola alleges is in no way imminent. See Bedrossian v. Northwestern Memorial Hosp., 409 F.3d 840, 844 (7th Cir. 2005) (noting that the irreparable harm must be imminent); Chacon v. Granata, 515 F.2d 922, 925 (5th Cir. 1975) (“An injunction is appropriate only if the antic ipated injury is imminent and irreparable.”) (emphasis added); Holiday Inns of Am., Inc. v. B & B Corp., 409 F.2d 615, 618 (3d Cir. 1969) (“The dramatic and drastic power of injunctive force may be unleashed only against conditions generating a presently existing actual threat[.]”) (emphasis added). Because defendants have extended the enforcement safe harbor to encompass plan years that begin b etween August 1 and Decem ber 31, 2013, the challeng ed regulations will not b e enforced by defendants against Biola until April 1, 2014, when its n ext plan year begins.25 Am. Compl. ¶ 179. There is ample time between now and then for the parties to litigate the m erits of Biola’s claim s in th e normal course of m otions practice, without the extraordinary relief of a prelim inary injunction. It is also no answer to say, as plaintiffs do, that they require a preliminary injunction because of “uncertainty” surrounding the regulations. P ls.’ Br. at 11. There is n o uncertainty—the regulations have been issued in final form, and
25 Similarly, Grace’s st udent health plan year does not begin until July 25, 2014, see Am. Compl. ¶ 18 1, so the challenged regulations will not be enforced by defendants against Grace as to that health plan until July 25, 2014.
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defendants’ health plans m ust comply as of the first plan year beginning on or after January 1, 2014. To the extent any uncertainty rem ains as to these obligations, it has been introduced only by the filing of this lawsuit.
As to the final two preliminary injunction factors—the balance of equities and the public interest—“there is inherent harm to an agency in preventing it f rom enforcing regulations that Congress found it in the public interest to dire ct that agency to develop and enforce.” Cornish v. Dudas, 540 F. Supp. 2d 61, 65 (D.D.C. 2008); see also C onnection Distrib. Co. v. Reno , 154 F.3d 281, 296 (6th Cir. 1998) (indicating that gran ting an injunction against the enforcement of a likely constitutional statute woul d harm the governm ent). Enjoining the p reventive services coverage regulations as to plaintiffs woul d undermine the governm ent’s ability to achieve Congress’s goals of improving th e health of wom en and newbor n children and equalizing the coverage of preventive services for women and men.26
It would also be con trary to the pub lic interest to deny plaintiffs ’ employees (and their families) the benefits of the preventive se rvices coverage regulations. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 312-13 (1982) (“[C]ourts . . . should pay particular regard for the public consequences in em ploying the extraordinary remedy of injunction.”). Those em ployees should not be deprived of the be nefits of payments provided by a third party that is not their employer for the full range of FD A-approved contraceptive services , as prescribed by a health care provider, on the basis of their em ployers’ religious objection. Many wom en do not use contraceptive services because th ey are not covered by their h ealth plan o r require costly copayments, coinsurance, or deductibles. IOM R EP. at 19-20, 109, AR at 317-18, 407; 77 Fed. Reg. at 8727, AR at 214; 78 Fed. Reg. at 39,887, AR at 19. As a result, in m any cases, both
26 Plaintiffs note that defendants consented to preliminary injunctions in some cases inv olving for-profit corporations, see Pls.’ Br. at 12-13, but defendants’ consent in those cases was n othing more than an effort to conserve judicial and go vernmental resources. Those cases were filed after m otions panels in those circuits had preliminary enjoined the regulations pending appeal in sim ilar cases. See Mersino, 2013 WL 3546702 at *16 (“[W]here the government has conceded to injunctive relief, it appears that it has generally done so in jurisdictions where the legal lan dscape has been set against them, and continuing to litigate the claims in those jurisdictions would be a wast e of both judicial and cl ient resources.”). The government continues to oppose preliminary injunctions sought by for-profit corporations in other circuits, and opposes in all circu its preliminary injunctions sought by non-profit entities as to the regulations challenged in this case.
46

case 3:12-cv-00459-JD-CAN document 61 filed 09/27/13 page 59 of 61
women and developing fetuses suffer negative health consequences. See IOM REP. at 20, 102-04, AR at 318, 400-02; 77 Fed. Reg. at 8728, AR at 215. And wom en are put at a com petitive disadvantage due to their lost pr oductivity and the disproportionate financial burden they bear in regard to preventive health services. 155 Cong. Rec. S12106-02, S12114 (daily ed. Dec. 2, 2009); see also IOM REP. at 20, AR at 318.
Enjoining defendants from enforcing, as to pl aintiffs, the preventive services coverage regulations—the purpose of wh ich is to elim inate these burdens, 75 Fed. Reg. at 41,733, AR a t 233; see also 77 Fed. Reg. at 8728, AR at 215—would thus in flict a very real harm on the public and, in particular, a readily id entifiable group of individuals. See Stormans, Inc. v. Selecky , 586 F.3d 1109, 1139 (9th Cir. 2009) (v acating preliminary injunction en tered by district court and noting that “[t]here is a general public in terest in ensuring that all citizens have timely access to lawfully prescribed m edications”). Plaintiffs’ health plans cover nearly 2,000 people. Com pl. ¶¶45, 50, 71. Accordingly, even assum ing plaintiffs were likely to succeed on the m erits (which they are not for the reasons explained above), any potential harm to plaintiffs resulting from their offense at a third party providing paym ent for contraceptive services at no cost to, and with no administration by, plaintiffs’ w ould be outweighed by the signifi cant harm an injunction would cause these employees and their families.
CONCLUSION For the foregoing reasons, defenda nts respectfully ask that the Court deny plaintiffs’ motion for a prelim inary injunction, and grant defendants’ motion to dism iss or, in the alternative, for summary judgment on all of plaintiffs’ claims. Respectfully submitted this 27th day of September, 2013,
STUART F. DELERY Assistant Attorney General DAVID A. CAPP United States Attorney
47

case 3:12-cv-00459-JD-CAN document 61 filed 09/27/13 page 60 of 61
JENNIFER RICKETTS Director SHEILA M. LIEBER Deputy Director _/s/ Michael C. Pollack______________ MICHAEL C. POLLACK (NY Bar) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW, Room 6143 Washington, DC 20530 Tel: (202) 305-8550 Fax: (202) 616-8470 Email: michael.c.pollack@usdoj.gov Attorneys for Defendants
48

case 3:12-cv-00459-JD-CAN document 61 filed 09/27/13 page 61 of 61 CERTIFICATE OF SERVICE
I hereby certify that on September 27, 2013, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which sent notice of such filing to all parties.
_/s/ Michael C. Pollack__________ MICHAEL C. POLLACK
49

case 3:12-cv-00459-JD-CAN document 61-1 filed 09/27/13 page 1 of 14

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

)

GRACE SCHOOLS and BIOLA

)

UNIVERSITY, INC.,

)

Plaintiffs,

)

v.

)

)

KATHLEEN SEBELIUS, in her official

)

capacity as Secretary, United States

)

Department of Health and Human Services, et )

al.,

)

)

Defendants.

)

)

)

)

)

Case No. 3:12-cv-00459-JD-CAN

DEFENDANTS’ STATEMENT OF MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Pursuant to Local Civil Rule 56.1(a), defe ndants hereby submit the following statem ent

of material facts as to which defendants contend there is no ge nuine issue in con nection with

their motion for summary judgment under Rule 56(b) of the Federal Rules of Civil Procedure:

1. Before the Patient Protection and Affordable Care Act (“ACA”), Pub. L. No. 111-

148, 124 Stat. 119 (2010), due largely to cost, Americans used preventive services at about half

the recommended rate. See INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN:

CLOSING THE GAPS 19-20, 109 (2011) (“IOM REP.”), AR at 317-18, 407.

2. Section 1001 of the ACA requires all group health plans and health insurance

issuers that offer non-grandfathered group or individual health cove rage to provide coverage for

certain preventive services without cost-sh aring, including, “[for] wom en, such additio nal

preventive care and screenings . . . as provided for in com prehensive guidelines supported by the

Health Resources and Services Administration [(HRSA)].” 42 U.S.C. § 300gg-13(a)(4).

1

case 3:12-cv-00459-JD-CAN document 61-1 filed 09/27/13 page 2 of 14
3. Because there were no existing HRSA gui delines relating to preventive care and screening for women, the Department of Health and Hum an Services (HHS) tasked the Institute of Medicine (IOM) with develo ping recommendations to implement the requirement to provide coverage, without cost-sharing, of preventive services for women. IOM REP. at 2, AR at 300.
4. After conducting an extensive science- based review, IOM recomm ended that HRSA guidelines include, among other things, “t he full range of [FDA ]-approved contraceptive methods, sterilization procedur es, and patient education a nd counseling for wom en with reproductive capacity.” Id. at 10-12, AR at 308-10.
5. FDA-approved contraceptive m ethods include diaphragms, oral contraceptive pills, emergency contraceptives (such as Plan B and Ella), and intrauterine devices (“IUDs”). See id. at 105, AR at 403.
6. Coverage, without cost-sharing, for these services is necessary to increase access to such services, and thereby reduce unintended pregnancies (and the negative health outcomes that disproportionately accompany unintended pregnancies) and promote healthy birth spacing. See id. at 102-03, AR at 400-01.
7. On August 1, 2011, HRSA a dopted guidelines consistent with IOM’s recommendations, encompassing all FDA-appr oved “contraceptive m ethods, sterilization procedures, and patient education and counseling,” as prescribed by a health care provider, subject to an exemption relating to certain r eligious employers authorized by regulations issued that same day (the “2011 a mended interim final regulations”). See HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines (“HRSA Guidelines”), AR at 283-84.
8. To qualify for the religious em ployer exemption contained in the 2011 am ended interim final regulations, an employer had to meet the following criteria:
2

case 3:12-cv-00459-JD-CAN document 61-1 filed 09/27/13 page 3 of 14
(1) The inculcation of religious values is the purpose of the organization; (2) the organization primarily employs persons who share the religious tenets
of the organization; (3) the organization serves primarily persons who share the religious tenets of
the organization; and (4) the organization is a nonprofit orga nization as described in section
6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended. 76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011), AR at 220. 9. Group health plans established or m aintained by religious em ployers (and associated group health insura nce coverage) are exem pt from any requirem ent to cover contraceptive services consistent with HRSA’s guidelines. See HRSA, Women’s Preventive Services: Required Health Plan Coverage Guide lines (“HRSA Guidelines”), AR at 283-84; 45 C.F.R. § 147.131(a). 10. In February 2012, the governm ent adopted in final regulations the definition of “religious employer” contained in the 2011 amended interim final regulations while also creating a temporary enforcement safe harbor for non- grandfathered group hea lth plans sponsored by certain non-profit organizations with religious objections to contraceptive coverage (and any associated group health insurance coverage). See 77 Fed. Reg. 8725, 8726-27 (Feb. 15, 2012), AR at 213-14. 11. The government committed to undertake a new rulemaking during the safe harbor period to adopt new regulations to further accommodate non-grandfathered non-profit religious organizations’ religious objections to covering contraceptive services. Id. at 8728, AR at 215. 12. The regulations challenged here (the “2013 final rules”) represent the culmination of that process. See 78 Fed. Reg. 39,870, AR a t 1-31; see also 77 Fed. Reg. 16,501 (Mar. 21,
3

case 3:12-cv-00459-JD-CAN document 61-1 filed 09/27/13 page 4 of 14

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

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

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

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

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

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

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

14. The changes made to the definition of religious employer in the 2013 final rules

ensure “that an otherwise exem pt plan is not disqualified because the em ployer’s purposes

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

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

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

coverage requirement for group health plans

established or maintained by “eligible

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

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

16. An “eligible organization” is an organization that satisfies the following criteria:

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

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

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

(4) The organization self-certifies, in a for m and m anner specified by the Secretary, that it satisfies the criteria in paragraphs (b)(1) through (3) of this section, and m akes such self-c ertification available fo r examination upon request by the first day of the first plan year to which the accommodation in paragraph (c) of this section applies.

4

case 3:12-cv-00459-JD-CAN document 61-1 filed 09/27/13 page 5 of 14

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

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

arrange, pay, or refer fo r contraceptive coverage” to which it has reli gious objections. 78 Fed.

Reg. at 39,874, AR at 6.

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

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

and provide a copy of that self- certification to its issuer or third party administrator (TPA). Id. at

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

19. Its participants and beneficiaries, however, will s till benefit from separate

payments for contraceptive servi ces made by the issuer or TPA, without cost sharing or other

charge. Id. at 39,874, AR at 6.

20. In the case of an organization with

an insured group health plan, the

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

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

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

organization or its plan. See id. at 39,875-77, AR at 7-9.

21. In the case of an organization w ith a self-insured gro up health plan, the

organization’s TPA, upon receip t of the self-cer tification, must provide or arran ge separate

payments for contraceptive services for participan ts and beneficiaries in the plan without cost-

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

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

22. Any costs incurred by TPAs will be reimbursed through an adjustm ent to

Federally-facilitated Exchange (FFE) user fees. See id. at 39,880, AR at 12.

5

case 3:12-cv-00459-JD-CAN document 61-1 filed 09/27/13 page 6 of 14
23. The 2013 fi nal rules generally apply to group health plans and health insurance issuers for plan years beginning on or after January 1, 2014, see id. at 39,872, AR at 4, except the amendments to the relig ious employer exemption apply to group health plans and group health insurance issuers for plan years beginning on or after August 1, 2013, see id. at 39,871, AR at 3.
24. The primary predicted benefit of the prev entive services covera ge regulations is that “individuals will experience improved health as a result of reduced transm ission, prevention or delayed onset, and ear lier treatment of disease.” 75 Fed. Reg. 41,726, 41,733 (July 19, 2010), AR at 233; see also 77 Fed. Reg. at 8728, AR at 215; 78 Fed. Reg. at 39,872, 39,887, AR at 4, 19.
25. “By expanding coverage and elim inating cost sharing for recommende d preventive services, [the regulations are] expected to increase access to and utilization of these services, which are not used at optimal levels today.” 75 Fed. Reg. at 41,733, AR at 233; see also 78 Fed. Reg. at 39,873 (“Research [ ] shows that co st sharing can be a si gnificant barrier to access to contraception.” (citation omitted)), AR at 5.
26. Although a majority of employers cover FDA-approved contraceptives, see IOM Rep. at 109, AR at 407, many women forgo preventive services because of cost-sharing imposed by their health plans, see id. at 19-20, 109, AR at 317-18, 407.
27. Unintended pregnancies have proven in many cases to have negative health consequences for women and developing fetuses. See 78 Fed. Reg. at 39,872, AR at 4.
28. Unintended pregnancy may delay “entry in to prenatal care,” prolong “behaviors that present risks for the developing fetus,” and cause “depression, anxiety, or other conditions.” IOM REP. at 20, 103-04, AR at 318, 401-02.
6

case 3:12-cv-00459-JD-CAN document 61-1 filed 09/27/13 page 7 of 14
29. Contraceptive coverage further helps to avoid “the increased risk o f adverse pregnancy outcomes for pregnancies that are too closely spaced.” Id. at 103, AR at 401; see also 78 Fed. Reg. at 39,872 (“Short interpregnancy interval s in particular have been associated with low birth weight, prematurity, and small-for-gestational age births.”) (citing studies), AR at 4.
30. “Contraceptives also have m edical benefits for wom en who are contraindicated for pregnancy, and there are demonstrative preven tive health benefits from contraceptives relating to conditions other than pregnancy (f or example, prevention of certain cancers, menstrual disorders, and acne).” 78 Fed. Reg. at 39,872, AR at 4; see also IOM Rep. at 103-04 (“[P]regnancy may be contraindicated for wom en with serious m edical conditions such as pulmonary hypertension . . . and cyanotic hear t disease, and for wom en with the Marf an Syndrome.”), AR at 401-02.
31. “[W]omen have different health needs than men, and these needs often generate additional costs. Women of childbearing age spend 68 percent more in out-of-pocket health care costs than men.” 155 Cong. Rec. S12106-02, S12114 (da ily ed. Dec. 2, 2009) (s tatement of Sen. Feinstein); 78 Fed. Reg. at 39,887, AR at 19; IOM REP. at 19, AR at 317.
32. These costs result in wom en often forgoing preventive care and place women in the workforce at a d isadvantage compared to their m ale coworkers. See, e.g., 155 Cong. Rec. S12265-02, S12274 (daily ed. Dec. 3, 2009) (statem ent of Sen. Murray); 78 Fed. Reg. at 39,887, AR at 19; IOM REP. at 20, AR at 318.
33. The grandfathering of certain health plans with respect to certain provisions of the ACA is not specif ically limited to the preven tive services coverage regulations. See 42 U.S.C. § 18011; 45 C.F.R. § 147.140.
7

case 3:12-cv-00459-JD-CAN document 61-1 filed 09/27/13 page 8 of 14
34. The effect of grandfathering is not r eally a perm anent “exemption,” but rather, over the long term, a transition in the marketplace with respect to several provisions of the ACA, including the preventive services coverage provision. See 78 Fed. Reg. at 39,887 n.49, AR at 19.
35. A majority of group health plans will have lost their grandfather status by the end of 2013. See 75 Fed. Reg. 34,538, 34,552 (June 17, 2010); see also Kaiser Family Foundation and Health Research & Educational Trust, Employer Health Benefits 2012 Annual Survey at 7-8, 190 (indicating that 58 percent of firm s had at least one grandfathered health plan in 2012, down from 72 per cent in 2011, and that 48 percent of covered workers were in grandfathered health plans in 2012, down from 56 percent in 2011), AR at 663-64, 846.
36. 26 U.S.C. § 4980H(c)(2) does not exem pt small employers from the preventive services coverage regulations. See 42 U.S.C. § 300gg-13(a); 78 Fed. Reg. at 39,887 n.49, AR at 19.
37. Instead, it excludes em ployers with fe wer than fifty full-tim e equivalent employees from the employer responsibility provision, meaning that, starting in 2015, such employers are not subject to the possibility of a ssessable payments if they do not provide health coverage to their full-time employees and their dependents. See 26 U.S.C. § 4980H(c)(2).
38. Small businesses that do offer non-gra ndfathered health coverage to their employees are required to provide coverage for recommended preventive services, including contraceptive services, without cost-sharing. 78 Fed. Reg. at 39,887 n.49, AR at 19.
39. The ACA provides tax incentives for sm all businesses to encourage the purchase of health insurance. See 26 U.S.C. § 45R.
40. Even if a sm all business were to choose not to offer health coverage, employees of such business could get health insuranc e coverage that is f acilitated by other ACA
8

case 3:12-cv-00459-JD-CAN document 61-1 filed 09/27/13 page 9 of 14
provisions—primarily those establishing both small group market and individual market health insurance exchanges and those establishing tax credits to make the purchase of coverage through such exchanges more affordable—and the coverage they receive through such exchanges will include coverage of all recomm ended preventive services, including contraception. See 78 Fed. Reg. at 39,887 n.49, AR at 19.
41. The only exem ption from the preventive services coverage regulations is the exemption for the group health plans of religious employers. 45 C.F.R. § 147.131(a).
42. Houses of worship and their integ rated auxiliaries that ob ject to con traceptive coverage on religious grounds ar e, as a group, m ore likely than other em ployers to em ploy people of the sam e faith who share the sam e objection, and who would therefore be less likely than other p eople to use contracep tive services even if such services were covered under their plan. See 78 Fed. Reg. at 39,874, 39,887, AR at 6, 19.
43. Congress did not adopt a single (govern ment) payer system financed through taxes and instead opted to build on the exis ting system of employment-based coverage. See H.R. Rep. No. 111-443, pt. II, at 984-86 (2010).
44. Defendants are constrained by statute from adopting the alternative administrative schemes proposed by plaintiffs. See 78 Fed. Reg. at 39,888, AR at 20.
45. Plaintiffs’ proposed alternatives are not feasible beca use they would also im pose considerable new costs and other burdens on the governm ent and would otherwise be impractical. See 78 Fed. Reg. at 39,888, AR at 20.
46. Nor would the proposed alternatives be equally effective in advancing the government’s compelling interests. See 78 Fed. Reg. at 39,888, AR at 20.
9

case 3:12-cv-00459-JD-CAN document 61-1 filed 09/27/13 page 10 of 14
47. Plaintiffs’ alternatives would require establishing entirely new governm ent programs and infrastructures or fundam entally altering an existing one, and would require women to take burdensom e steps to find out a bout the availability of and sign up for a new benefit, thereby ensuring that fewe r women would take advantage of it. See 78 Fed. Reg. at 39,888, AR at 20.
48. The regulations explicitly prohibit issuers and TPAs from im posing any costsharing, premium, fee, or other ch arge on plaintiffs or their plan s with respect to the separate payments for contraceptive services made by the issuers and TPAs. See 78 Fed. Reg. at 39,880, AR at 12.
49. The regulations simply require coverage of “education and counseling for wom en with reproductive capacity.” HRSA Guidelines, AR at 130-31.
50. Defendants issued the ANPRM on March 21, 2012 and solicited comments on it. 77 Fed. Reg. at 16,501, AR at 186.
51. Defendants then considered those comments and issued the NPRM on February 6, 2013, requesting comments on the proposals contained in it. 78 Fed. Reg. at 8457, AR at 166.
52. Defendants received over 400,000 comm ents, and the preamble to the 2013 final rules contains a detailed discussion both of the comments defendants received and of defendants’ responses to those comments. See 78 Fed. Reg. at 39,871-39,888, AR at 3-20.
53. The ACA requires only that there be a minimum interval of not less than one year between the date on which a recomm endation or guideline is issued and the plan year for which the coverage of the services included in that recommendation or guideline must take effect. See 42 U.S.C. § 300gg-13(b); 75 Fed. Reg. at 41,729, AR at 229.
10

case 3:12-cv-00459-JD-CAN document 61-1 filed 09/27/13 page 11 of 14
54. The HRSA Guidelines were published on August 1, 2011, and these regulations apply for plan years beginning on or after Ja nuary 1, 2014. HRSA Guidelines, AR 283-84; 78 Fed. Reg. at 39,870, AR at 2.
55. Section 1303(b)(1) of the AC A provides that “nothing in this title . . . shall be construed to require a qualified health plan to provi de coverage of [abor tion services],” 42 U.S.C. § 18023(b)(1)(A)(i).
56. A “qualified health plan,” within the m eaning of this provision, is a health plan that has been certified by the health insurance exchange “through which such plan is offered” and that is offered by a health insurance i ssuer. 42 U.S.C. § 18021(a)(1 ). Health insurance exchanges are to be set up by states no later than January 1, 2014. Id. § 18031.
57. Plaintiffs are neither hea lth insurance issuers nor pur chasers of qua lified health plans.
58. The Weldon Amendment denies funds m ade available in the Consolidated Appropriations Act of 2012 to any fe deral, state, or local agenc y, program, or government that “subjects any institutional or individual health care entity to discrimination on the ba sis that the health care entity does not provide , pay for, provide coverage of, or ref er for abortions.” Pub. L. No. 112-74, §§ 506, 507, 125 Stat. 786, 1111-12 (Dec. 23, 2011).
59. Plaintiffs are not institutional or individual hea lth care entities. See id. at § 507(d)(2).
60. The Church Amendment protects individuals from being required to “perform or assist in the performance of any part of a health service program or res earch activity funded . . . by the Secretary of Health and Hu man Services if his perf ormance or assi stance . . . would be contrary to his religious beliefs or moral convictions.” 42 U.S.C. § 300a-7(d).
11

case 3:12-cv-00459-JD-CAN document 61-1 filed 09/27/13 page 12 of 14

61. The preventive services covered by th e regulations do not include abortifacient

drugs. HealthCare.gov, Affordable Care Act Rules on Expanding Access to Preventive Services

for Women (August 1, 2011), available at http://www.hhs.gov/healthcare/facts/factsheets/2011/

08/womensprevention08012011a.html (last visited Sept. 27, 2013); see also IOM R EP. at 22

(recognizing that abortion services are outside the scope of recommendations), AR at 320.

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

as Plan B. See IOM REP. at 105, AR at 403.

63. The basis f or the inclusion of such drugs among safe and effective m eans of

contraception dates back to 1997, when the FDA first explained why Plan B and sim ilar drugs

act as con traceptives rather than abortifacients. See Prescription Drug Products; Certain

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

8610, 8611 (Feb. 25, 1997) (noting that “em ergency contraceptive pills are not effe ctive if the

woman is pregnant” and that there is “no ev idence that [emergency contraception] will have an

adverse effect on an established pregnancy”); 45 C.F.R. § 46.202(f) (“Pregnancy encom passes

the period of time from implantation until delivery.”).

64. In light of this conclusion by the FDA, HHS informed Title X grantees, which are

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

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

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

and effective.” Office of Populati

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

http://www.hhs.gov/opa/pdfs/opa-97-02.pdf (last visited Sept. 27, 2013); see also 42 U.S.C.

§§ 300, 300a-6.

12

case 3:12-cv-00459-JD-CAN document 61-1 filed 09/27/13 page 13 of 14

65. Representative Weldon, the sponsor of the Weldon Amendment, did not consider

the word “abortion” in the statute to include FDA-approved emergency contraceptives. See 148

Cong. Rec. H6566, H6580 (daily ed. Sept. 25, 2002) (“The provision of c ontraceptive services

has never been defined as abortion in Federal statute, nor has emergency contraception, what has

commonly been interpreted as the morning-after pill. . . . [ U]nder the current FDA policy[,] that

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

Respectfully submitted this 27th day of September, 2013,

STUART F. DELERY Assistant Attorney General

DAVID United

A. CAPP States Attorney

JENNIFER

RICKETTS Director

SHEILA Deputy

M. LIEBER Director

MICHAEL Trial United Civil

_/s/ Michael C. Pollack______________ C. POLLACK (NY Bar)
Attorney States Department of Justice
Division, Federal Programs Branch 20 Massachusetts Avenue NW, Room 6143 Washington, DC 20530 Tel: (202) 305-8550 Fax: (202) 616-8470 Email: Michael.C.Pollack@usdoj.gov

Attorneys for Defendants

13

case 3:12-cv-00459-JD-CAN document 61-1 filed 09/27/13 page 14 of 14 CERTIFICATE OF SERVICE
I hereby certify that on Septem ber 27, 2013, I el ectronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which sent notice of such filing to all parties.
_/s/ Michael C. Pollack __________ MICHAEL C. POLLACK
14

 
 case 3:12-cv-00459-JD-CAN document 66 filed 10/07/13 page 1 of 33

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION

GRACE SCHOOLS and BIOLA UNIVERSITY, INC.

Plaintiffs,

v.

No.:

KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; et. al.,

Defendants.

3:12-cv-459-JD-CAN

BRIEF OF AMICUS CURIAE LIBERTY, LIFE, AND LAW FOUNDATION IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION AND IN
OPPOSITION TO DEFENDANTS' MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

case 3:12-cv-00459-JD-CAN document 66 filed 10/07/13 page 2 of 33

TABLE OF CONTENTS

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

TABLE OF AUTHORITIES ......................................................................................................... iii

IDENTITY AND INTEREST OF AMICUS CURIAE ................................................................... 1

INTRODUCTION AND SUMMARY OF THE ARGUMENT .................................................... 2

ARGUMENT ................................................................................................................................. 2

I. RESPECT FOR INDI VIDUAL CONSCIENCE IS DE EPLY ROOTED IN AMERICAN HISTORY ..................................................................................................... 2

A. Courts Have Long Respected Th e Conscience Of Both Patients And Health Care Professionals ....................................................................................... 3

B. Like Many Successful Free Exercise Cases, This Case Invo

lves

Conscientious Objectors—Not Civil Disobedience ............................................... 4

II. AN EMPLOYER'S REFUSAL TO FINANCE ABORTIFACENTS AND/OR ABORTION IS NOT THE INVIDI OUS, IRRATIONAL, AR BITRARY DISCRIMINATION PROHIBITED BY THE CONSTITUTION..................................... 5

A. Anti-Discrimination Provisions Ha ve Expanded To Cover More Places And Protect More Groups—Complic ating The Legal Analysis And Triggering Collisions With The First Amendment ................................................. 6

B. Many Decisions Necessitate Selection Criteria ...................................................... 9

C. Where "Discrimination" Is Integrally Related To The Exercise Of A Core Constitutional Right, It Is Not Arbitrary, Irrational, Or Unreasonable................... 9

D. A Narrowly Craf ted Exemption Would Not Constitu te The Arbitr ary, Unreasonable Discrimination The Constitution Rightly Prohibits ....................... 10

III. THE RIGHT TO ACCESS ABORTI ON DOES NOT JUSTIFY COERCED FUNDING BY UNWILLING PRIVATE EMPLOYERS ............................................... 11

A. Abortion Is A Highly Controversial, Divisive Issue............................................. 12

B. Religious Freedom Is Our First Liberty—It Should Not Be Dismantled To Coerce Private Funding Of Abortion Rights ........................................................ 13

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C. No Person Has A Constitu tional Right To Free Access To Abortion. Accommodation Of A Private Employer's Conscience Poses No Threat To Any Employee's Legal Rights............................................................................... 14
D. Other Cases Li miting Religious F reedom Left The Objector W ith A Viable Choice. The HHS Mandate Does Not. ..................................................... 16
IV. EVEN IN THE COMMERCIAL SPH ERE, BELIEVERS DO NOT FORFEI T THEIR CONSTITUTIONAL RIGHTS............................................................................ 18 A. Free Exercise Cases Comm only Arise In The Context Of Commercial Activity ................................................................................................................. 18 B. The Government Discriminates Against Employers Who Hold Conscientious Objections To Abortion................................................................. 19
V. THE ARGUMENTS ARE EVE N MORE COMPELLING WHERE THE EMPLOYER IS A RELIGIOUS ORGANIZATION ....................................................... 20
VI. IRONICALLY, THE MANDATE WEAKENS CONSTITUTIONAL PROTECTION FOR EVERYONE—INCLUDING THOSE WHO ADVOCATE IMPOSING IT ON UNWILLING PRIVATE EMPLOYERS ......................................... 21
CONCLUSION............................................................................................................................. 23 CERTIFICATE OF SERVICE ..................................................................................................... 23
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TABLE OF AUTHORITIES
CASES
Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436 (2011) .............................................................................................................. 3
Attorney Gen. v. Desilets, 636 N.E.2d 233 (Mass. 1994) ................................................................................................. 19
Baird v. State Bar of Arizona, 401 U.S. 1 (1971).................................................................................................................... 20
Bd. of Dirs. of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537 (1987)................................................................................................................ 16
Bob Jones Univ. v. United States, 461 U.S. 574 (1983).......................................................................................................... 13, 16
Bowen v. Kendrick, 487 U.S. 589 (1988)................................................................................................................ 14
Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000).................................................................................................. 6, 7, 16, 22
Braunfeld v. Brown, 366 U.S. 599 (1961).......................................................................................................... 18, 19
Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67 (Cal. 2004) .......................................................................................... 15, 16, 17, 19
Catholic Charities of Diocese of Albany v. Seri, 859 N.E.2d 459 (N.Y. 2006)....................................................................................... 15, 16, 17
Citizens United v. Fed. Election Comm'n, 558 U.S. 310 (2010)................................................................................................................ 18
Doe v. Bolton, 410 U.S. 179 (1973)................................................................................................................ 12
Dole v. Shenandoah Baptist Church, 899 F.2d 1389 (4th Cir. 1990) ................................................................................................ 16
EEOC v. Fremont Christian Sch., 781 F.2d 1362 (9th Cir. 1986) ................................................................................................ 16
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EEOC v. Townley Eng'g & Mfg. Co., 859 F.2d 610 (9th Cir. 1988) .................................................................................................. 18
Emp't Div., Ore. Dep't of Human Res. v. Smith, 494 U.S. 872 (1990)............................................................................................................ 4, 21
Erzinger v. Regents of Univ. of Cal., 137 Cal. App. 3d 389 (Cal. Ct. App. 1982) ............................................................................ 17
Everson v. Bd. of Educ. of Ewing, 330 U.S. 1 (1947).................................................................................................................... 20
First Nat'l Bank v. Bellotti, 435 U.S. 765 (1978)................................................................................................................ 18
Flast v. Cohen, 392 U.S. 83 (1968).................................................................................................................... 3
Gay Alliance of Students v. Matthews, 544 F.2d 162 (4th Cir. 1976) .................................................................................................. 22
Gay Rights Coalition of Georgetown Univ. Law Ctr. v. Georgetown Univ., 536 A.2d 1 (D.C. 1987) ............................................................................................................ 8
Girouard v. United States, 328 U.S. 61 (1946).............................................................................................................. 4, 13
Goehring v. Brophy, 94 F.3d 1294 (9th Cir. 1996) .................................................................................................. 17
Harris v. McRae, 448 U.S. 297 (1980)................................................................................................................ 14
Healy v. James, 408 U.S. 169 (1972)................................................................................................................ 23
Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964).................................................................................................................. 7
Hobbie v. Unemployment Appeals Comm'n of Florida, 480 U.S. 136 (1987).................................................................................................................. 9
Hobby Lobby v. Sebelius, 2013 U.S. App. LEXIS 13316 (10th Cir. 2013) ....................................................................... 6
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Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 132 S. Ct. 694 (2012) ........................................................................................................ 20, 21
Hsu v. Roslyn Union Free Sch. Dist. No. 3, 85 F.3d 839 (2d Cir. 1996)........................................................................................................ 9
Hurley v. Irish-American Gay, Lesbian, & Bisexual Grp. of Boston, 515 U.S. 557 (1995).................................................................................................. 6, 7, 11, 16
In re Cox, 474 P.2d 992 (Cal. 1970) .......................................................................................................... 7
Isbister v. Boys Club of Santa Cruz, 707 P.2d 212 (Cal. 1985) .......................................................................................................... 7
Jacobson v. Massachusetts, 197 U.S. 11 (1905).................................................................................................................. 15
Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America,
344 U. S. 94, 116 (1952) ........................................................................................................ 20
Keyishian v. Bd. of Regents, 385 U.S. 589 (1967)................................................................................................................ 20
Lawrence v. Texas, 539 U.S. 558 (2003).................................................................................................................. 8
Lee v. Weisman, 505 U.S. 577 (1992)................................................................................................................ 20
Lynch v. Donnelly, 465 U.S. 668 (1984)................................................................................................................ 15
Marina Point, Ltd. v. Wolfson, 640 P.2d 115 (Cal. 1982) .......................................................................................................... 7
McCreary County, KY v. ACLU, 545 U.S. 844 (2005)................................................................................................................ 20
Mead v. Holder, 766 F. Supp. 2d 16 (D.D.C. 2011), aff'd, Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011) .................................................................................................... 17
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Monaghan v. Sebelius, No. 2:12-cv-15488, 2013 U.S. Dist. LEXIS 35144 (E.D. Mich. March 14, 2013).................................................................................................. 18
New York State Club Ass'n, Inc. v. City of New York, 487 U.S. 1 (1988).................................................................................................................... 11
Orloff v. Los Angeles Turf Club, 227 P.2d 449 (Cal. 1951) .......................................................................................................... 7
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992)................................................................................................................ 14
Prince v. Massachusetts, 321 U.S. 158 (1944)............................................................................................................ 4, 15
Rasmussen v. Glass, 498 N.W.2d 508 (Minn. Ct. App. 1993) ....................................................................... 2, 10, 19
Reynolds v. United States, 98 U.S. 145 (1878).................................................................................................................. 15
Roberts v. United States Jaycees, 468 U.S. 609 (1984).................................................................................................... 16, 18, 19
Roe v. Wade, 410 U.S. 113 (1973)................................................................................................................ 11
Rust v. Sullivan, 500 U.S. 173 (1991)................................................................................................................ 14
Sherbert v. Verner, 374 U.S. 398 (1963)................................................................................................ 4, 15, 18, 19
State ex rel. McClure v. Sports & Health Club, Inc., 370 N.W.2d 844 (Minn. 1985)................................................................................................ 19
Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) ................................................................................................ 18
Stoumen v. Reilly, 234 P.2d 969 (Cal. 1951) .......................................................................................................... 7
Swanner v. Anchorage Equal Rights Comm'n, 874 P.2d 274 (Alaska 1994).................................................................................................... 19
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Thomas v. Review Bd. of Ind. Emp't, 450 U.S. 707 (1981)................................................................................................................ 10
Tony and Susan Alamo Found. v. Sec'y of Labor, 471 U.S. 290 (1985)................................................................................................................ 19
Tyndale House Publ'rs, Inc. v. Sebelius, 904 F. Supp. 2d 106 (D.D.C. November 16, 2012) ............................................................ 6, 17
United States v. Ballard, 322 U.S. 78 (1944).................................................................................................................. 22
United States v. Lee, 455 U.S. 252 (1982).......................................................................................................... 18, 19
United States v. Seeger, 380 U.S. 163 (1965).................................................................................................................. 2
Walker v. Superior Court, 763 P.2d 852 (1988)................................................................................................................ 15
Watson v. Jones, 80 U.S. 679 (1872).................................................................................................................. 20
Webster v. Reprod. Health Servs., 492 U.S. 490 (1989)................................................................................................................ 14
West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943)...................................................................................................... 4, 11, 15
Wisconsin v. Yoder, 406 U.S. 205 (1972)............................................................................................................ 4, 15
Wooley v. Maynard, 430 U.S. 705 (1977)................................................................................................................ 11
Zorach v. Clauson, 343 U.S. 306 (1952).......................................................................................................... 15, 20
STATUTES
42 U.S.C. § 300a-7(c) (the "Church Amendment") ........................................................................ 4
Cal. Civ. Code § 51 (the "Unruh Act") ........................................................................................... 7
Ga. Crim. Code § 26-1202(e) ....................................................................................................... 12
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OTHER AUTHORITIES
http://www.becketfund.org/hhsinformationcentral/........................................................................ 2
119 Cong. Rec. 9595 (1973) ........................................................................................................... 4
Sen. Rep. No. 103-111, 1st Sess., p. 4 (1993), reprinted in 1993 U.S. Code Cong. & Admin. News............................................................................................................ 13
David E. Bernstein, Defending the First Amendment From Antidiscrimination, 82 N.C. L. Rev. 223 (2003) ...................................................... 6, 9, 21, 22
J. David Bleich, The Physician as a Conscientious Objector, 30 Fordham Urb. L. J. 245 (2002)................................................................................................................. 3
Gerard V. Bradley, Beguiled: Free Exercise Exemptions And The Siren Song of Liberalism, 20 Hofstra L. Rev. 245 (1991)......................................................................... 10
Feldman, Intellectual Origins of the Establishment Clause, 77 N. Y. U. L. Rev. 346 (2002) ........................................................................................................................ 3
Harlan Loeb and David Rosenberg, Fundamental Rights in Conflict: The Price of a Maturing Democracy, 77 N.D. L. Rev. 27 (2001) ............................................... 5, 8
Michael W. McConnell, "God is Dead and We have Killed Him!" Freedom of Religion in the Post-Modern Age, 1993 BYU L. Rev. 163 ...................................... 8, 11, 18
Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409 (1990)............................................................... 3
Courtney Miller, Note: Reflections on Protecting Conscience for Health Care Providers: A Call for More Inclusive Statutory Protection in Light of Constitutional Considerations, 15 S. Cal. Rev. L. & Social Justice 327 (2006) .................................................................................................................................. 4, 12
Nora O'Callaghan, Lessons From Pharaoh and the Hebrew Midwives: Conscientious Objection to State Mandates as a Free Exercise Right, 39 Creighton L. Rev. 561 (2006) ................................................................................... 4, 5, 11, 18
Harlan Fiske Stone, The Conscientious Objector, 21 Col. Univ. Q. 253 (1919) ........................................................................................................ 2
Jack S. Vaitayanonta, Note: In State Legislatures We Trust? The "Compelling Interest" Presumption and Religious Free Exercise Challenges to State Civil Rights Laws, 101 Colum. L. Rev. 886 (2001)............................. 5, 8
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IDENTITY AND INTEREST OF AMICUS CURIAE Amicus curiae Liberty, Life, and Law Foundation ("LLLF") is a North Carolina nonprofit corporation established to defend religious liberty, sanctity of hu man life, liberty of conscience, family values, and other m oral principles. LLLF is gravely concerned about the growing hostility to religious expression in America and related threats to liberty. The HHS Mandate at issue tramples the consc ience of a multitude of Americans by requir ing them to f inance drugs and services contrary to their most cherished religious beliefs.
INTRODUCTION AND SUMMARY OF THE ARGUMENT The First Amendment has never been confined within the walls of a church, as if it were a wild animal needing to be caged. On the contrary, the Co nstitution broadly guarantees liberty to religious individuals and organizations who participate in public life and operate a business or ministry according to their deeply held moral, ethical, and religious convictions. But now, the Patient Protection and Affordab le Care Act of 2010 requires Plaintiffs to provide health insurance to e mployees, including coverage for certain drugs, sterilization, and related educational/counseling services, in violation of the organizations' religious commitments (the "Mandate" or "HHS Mandate" ). This Mandate is a f rontal assault on liber ties Americans have treasured for over 200 years— liberties no organization can be required to sacrifice as a condition for its continued operation. Some argue that f ailure to com ply with the M andate constitutes discrimination against women. That rabbit trail diverts attention from the heart of this case: liberty of conscience. It is hardly "discrimination" to decline to advance a politically charged agenda, particularly since no person has a right to free contraceptive services funded by an unwilling private employer.
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ARGUMENT
I. RESPECT FOR INDIVIDUAL CONSCIENCE IS DEEPLY ROOTED IN AMERICAN HISTORY.
The American legal sy stem has traditionally respec ted conscience, as illu strated by
statutory and judicially crafted exemptions gr anting relief from the moral dilemma crea ted by
mandatory military service. One case, acknowledging man's "duty to a moral power higher th an
the State," quotes Harlan Fiske Stone (later Chief Justice):
"...both morals and sound policy require that th e state should not vi olate the conscience of the individual. All our history gives co nfirmation to the view that liberty of conscience has a m oral and social value wh ich makes it worthy of preservation at the hands of the state. So deep in its s ignificance and vital, indeed, is it to the integrity of man's moral and spiritual nature that nothing short of the self-preservation of the state should warrant its violation; and it m ay well be questioned whether the state which preserves its life by a settled policy o f violation of the conscience of the individual will not in f act ultimately lose it by th e process." Stone, The Conscientious Objecto r, 21 Col. Univ. Q. 253, 269 (1919).
United States v. Seeger , 380 U.S. 163, 170 (1965). It is hazardous for any governm ent to
systematically crush the conscien ce of its citizens . But that is exactly what the Mandate does,
breeding a nation of persons who lack conscience—citizens who m ust set aside conscience,
values, and religion just to r emain in bu siness. The sheer number of pending lawsuits—a steadily growing number—testifies to the gravity of the matter.1
Many state constitutions link free exercis e to "liberty of conscience." One Minnesota
court ruled in favor of a religious deli owner who refused to deliver food to an abortion clinic,
observing that: "Deeply rooted in the constitutional law of Minnesota is the fundamental right of
every citizen to enjoy ' freedom of conscien ce.'" Rasmussen v. Glass , 498 N.W.2d 508, 515
(Minn. Ct. App. 1993). Although "freedom of conscience" is even broader than "free exercise of

1 There are 73 pending cases, per "HHS Mandate Inform

ation Central." See

http://www.becketfund.org/hhsinformationcentral/ (last visited 10/03/13).

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case 3:12-cv-00459-JD-CAN document 66 filed 10/07/13 page 12 of 33
religion," the First Amendment explicitly protects religion. Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion , 103 Ha rv. L. Rev. 1409, 1491 (1990).
Liberty of conscience underl ies the Establishm ent Clause and the unique taxpayer standing rules developed in Flast v. Cohen, 392 U.S. 83 (1968):
[T]he Framers' generation worried that con science would be violated if citizens were required to pay taxes to support religious institutions with whose beliefs they disagreed. Ariz. Christian Sch. Tuition Org. v. Winn , 131 S. Ct. 1436, 1446-1447 (2011), quoting Feldm an, Intellectual Origins of the Establish ment Clause, 77 N. Y. U. L. Re v. 346, 351 ( 2002). An equivalent principle is true here: T he Mandate requires business owners—and even religious institutions—to sacrifice faith an d conscience by financing activit ies they cons ider immoral. This is tantamount to the Establishm ent Clause evil of compelling citizens to support religious beliefs they do not hold.
A. Courts Have Long Respected The Conscience Of Both Patients An d Health Care Professionals.
There is a long history of respect for the conscience and m oral autonomy of both patients and health care professionals. W omen may have a legal right to con traception and abortion, but "to demand of a physician that she act in a m anner she deems to be morally unpalatable not only compromises the physician's ethical integrity, but is also likely to have a corrosive effect upon the dedication and zeal with which she ministers to patients." J. David Bleich, The Physician as a Conscientious Objector, 30 Fordham Urb. L. J. 245 (2002). A private employer's conscience and integrity is entitled to resp ect. Inste ad, the Mandate has a corrosive im pact on Am erican society by compelling people of faith to facilitate services they consider immoral.
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After abortion became legal, Congress acted swiftly to preserve the con science rights of professionals who object to participating in ab ortions. When Senator Church introduced the "Church Amendment" (42 U.S.C. § 300a-7(c)) for th at purpose, he explained that: "Nothing is more fundamental to our national birthright than freedom of religi on." 119 Cong. Rec. 9595 (1973). Nora O' Callaghan, Lessons From Pharaoh and the Hebr ew Midwives: Conscientious Objection to State Mandates as a Free Exercise Right , 39 Creighton L. Rev. 561, 627-628 (2006). Almost every state has also enacted conscience clause le gislation. Courtney Miller, Note: Reflections on Protecting Cons cience for Hea lth Care Prov iders: A C all for Mor e Inclusive Statutory Protection in Light of Cons titutional Considerations, 15 S. Cal. Rev. L. & Social Justice 327, 331 (2006).
B. Like Many Successful Free Exercise Cases, This Case Involves Conscientious Objectors—Not Civil Disobedience.
Prior to Emp't Div., Ore. Dep't of Human Res. v. Smith , 494 U.S. 872 (1990), m any winning cases involve conscientious objector s—believers seeking freedom from state compulsion to commit an act against conscience. Girouard v. United States, 328 U.S. 61 (1946); Sherbert v. Verner , 374 U.S. 398 (1963) (Sabbath work); West Virginia State Bd. of Educ. v. Barnett, 319 U.S. 624 (flag salute); Wisconsin v. Yoder, 406 U.S. 205 (1972) (education). Many losing cases involve "civil disob edience" claimants seeking to engage in illeg al conduct, e.g., Prince v. Massachusetts, 321 U.S. 158 (1944) (child labor). Lessons From Pharaoh , 39 Creighton L. Rev. at 564. Smith repeatedly emphasized the criminal conduct at issue. Smith, 494 U.S. at 874, 878, 887, 891-892, 897-899, 901-906, 909, 911-912, 916, 921.
Conscientious objector claims are "very cl ose to the core of religious liberty." Lessons From Pharaoh, 39 Creighton L. Rev. at 565, 61 1, 615-616. Religious institutions should never have to choose between allegiance to the state a nd faithfulness to God when their b eliefs can be
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accommodated without sacrificing p ublic peace or safety. If m orally shocking behavior (flag burning, computer-generated chil d pornography, cross burnings) is protected expression, then surely Christian institutions should not be compelled to violate conscience. Id.
This Court's decision has broad ramifications for others burdened by co mparable legal directives. It is difficult to pinpoint the m yriad of situations where legal m andates may invade conscience. In light of the h igh value that co urts, legislatures, and st ate constitutions have historically assigned to cons cience, it is incumb ent upon this Court to protect religious organizations that decline to finance morally objectionable services. II. AN EMPLOYER'S REFUSAL TO FINANCE ABORTIFACENTS IS NOT T HE
INVIDIOUS, IRRATIONAL, ARBITRARY DISCRIMINATION PROHIBITED BY THE CONSTITUTION. Some supporters of the Mandate refram e the issue in term s of discrim ination against women or gender equality. 2 But expansive m odern anti-discrimination principles increasingly collide with religious liberty. Commentators have observed the legal quagm ire in the context of statutory protections: This conflict between the st atutory rights of i ndividuals against private acts of discrimination and the near un iversally-recognized right of free exercise of religion places a complex legal question involving competing societal values squarely before the courts. Jack S. Vaitayanonta, Note: In State Legislatures We Trus t? The "Compelling Interest" Presumption and Religious Free E xercise Challenges to State Civil Rights Laws, 101 Colum. L. Rev. 886, 887 (2001). See also Harlan Loeb and David Rosenberg, Fundamental Rights in Conflict: The Price of a Ma turing Democracy, 77 N.D. L. Rev. 27, 29 (2001); David E.
2 The American Civil Liberties Union has m ade such arguments in m any of the HHS Mandate cases.
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Bernstein, Defending the First Amendment From Antidiscrimination, 82 N.C. L. Rev. 223 (2003) (urging resolution in favor of First Amendment liberties).
Plaintiffs challenge only a fraction of the required "comprehensive package." Tyndale House Publ'rs, Inc. v. Sebelius , 904 F. Supp. 2d 106, 127 n. 17 (D.D.C. November 16, 2012). "The government does not articulate why accom modating such a limited request fundamentally frustrates its goals." Hobby Lobby v. Sebelius, 2013 U.S. App. LEXIS 13316, *77 (10th Cir. 2013). Most uniquely fem ale services are not morally objectionable—childbirth, prenatal care, mammograms, pap smears, breast or cervical cancer treatments. Plaintiffs carve out only those services they cannot in good cons cience facilitate or finance. Seen against the backdrop of common law principles and the First Am endment, their conduct is not unlawful discrim ination against female employees.
A. Anti-Discrimination Provisions Have Expanded To Cover More Places And Protect More Groups—Complicating Th e Legal Analysis And Tr iggering Collisions With The First Amendment.
Anti-discrimination policies ha ve ancient roo ts. The Mas sachusetts law at issue in Hurley grew out of the comm on law principle that innkeepers and ot hers in public service could not refuse service to a custom er without good reason. Hurley v. Irish-American Gay, Lesbian & Bisexual Grp. of Boston , 515 U.S. 557, 571 (1995). But the st ate legislature broadened the scope, adding more protected categories and places subject to the law. Id. at 571-572. The same trend was apparent in Dale. The traditional "places" m oved beyond inns and trains to commercial entities and even m embership associations—increasing the potential f or collisions with First Amendment association rights. Boy Scouts of Am. v. Dale , 530 U.S. 640, 656 (2000). Protection expanded, adding cr iteria such as p rior criminal record, prior psychiatric treatment,
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military status, personal appearance, source of income, place of residence, and political ideology. Id. at 656 n. 2.
Similarly, California's Unruh Act (Cal. Civ. Code § 51) originally encompassed "inns, restaurants, hotels, eating-houses, barber-shops, bath-houses, theaters, skating-rinks, and all other places of public accommodation or amusement." Stats. 1897, ch. 108, p. 137, § 1 (see In re Cox, 474 P.2d 992, 996 (Cal. 1970)). The Ac t gradually expanded to cove r more places and people: Orloff v. Los Angeles Turf Club, 227 P.2d 449 (Cal. 1951) (race tr ack could not expel m an of immoral character); Stoumen v. Reilly, 234 P.2d 969 (Cal. 1951) (hom osexuals may obtain food and drink at a public restaurant). What the A ct clearly forbids is the "irrational, arbitrary, or unreasonable discrimination" prohibited by the Equal Protection Clause. In re Cox, 474 P.2d at 999. Discrim ination is "arbitrary" where an en tire class of persons is excluded without justification. Marina Point, Ltd. v. Wolfson , 640 P.2d 115 (Cal. 1982). But it is hardly "arbitrary" to avoid promoting an agenda. Hurley, 515 U.S. 557 (parade organizers did not exclude individual homosexuals, but could not be compelled to grant ac cess to a g ay organization). When Unruh Act am endments were considered in 1974, th e Legislative Counsel cautioned that "a construction of the act that would prohibit discrimination on any of the grounds enumerated therein whether or not such action was arbitrary would lead to absurd results." Isbister v. Boys Club of Santa Cruz, 707 P.2d 212, 222 (Cal. 1985) (emphasis added).
Civil rights legislation has b een enacted to eradicate Am erica's long history of racial discrimination. Heart of Atlanta Motel v. United States , 379 U.S. 241 (1964). But as protection expands to more places and people, so does the potential to employ anti-discrimination principles to suppress traditional viewpoints and impose social change on unwilling participants. Religious liberty is particularly susceptible to infringement:
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With respect to the great post-m odern concerns of sexuality, race, an d gender, the advocates of social ch ange are anything but indifferent toward the teachings of traditional religion—and since they are not indifferent they are not tolerant. Michael W. McConnell, "God is Dead and We have Killed Hi m!" Freedom of Religion in the Post-Modern Age, 1993 BYU L. Rev. 163, 187 (1993). Political power can be used to squeeze religious views out of public debate about controversial social issues. Id. at 188.
The clash between anti-discrimination principles and the First Amendment is particularly volatile when a m orally controversial practice is protected and religious organizations are embraced by the law. Governm ent has no righ t to compel religious institutions and citizens to facilitate a particular view of sexua l morality. Religious voices have shaped views of sexual morality for centuries. These views about right and wrong "are not trivial concerns but profound and deep co nvictions accepted as ethical and m oral principles." Lawrence v. Texa s, 539 U.S. 558, 571 (2003).
The clash between non-discrimination rights and religious liberty "places a complex legal question involving competing societal values squarely before the courts." In State Legislatures We Trust?, 101 Colum . L. Rev. at 887. W hen the D. C. Circuit addressed the question "of imposing official orthodoxy on controversial issues of religious, moral, ethical and philosophical importance, upon an entity whose role is to inqu ire into such m atters" it concluded that "[t]he First Amendment not only ensures that question s on difficult social topics will be as ked, it also forbids government from dictating the answers ." Gay Rights Coalition of Georgetown Univ. Law Ctr. v. Georgetown Univ., 536 A.2d 1, 24 (D.C. 1987) (emphasis added). Nondiscrimination rights, whether created by statute or derived from equal protection principles, may conflict with core rights to religious liberty. Fundamental Rights in Conflict, 77 N.D. L. Rev. at 27, 29.
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The growing conflict between religion and non-discrimination principles em erges in many contexts. Defending the F irst Amendment From Antidiscrimination , 82 N.C. L. Rev. at 224-225. Em ployers may find them selves in a conundrum —protecting one group while alienating another. Solutions are difficult to craft, particularly in the wake of expanding privacy rights. But even if private se xual conduct is legally protected from government intrusion, that protection does not trump the First Am endment rights of those who cannot conscientiously endorse it—let alone finance it.
B. Many Decisions Necessitate Selection Criteria. Discrimination may or may not be invidious—and thus rightly prohibited—depending on the context and identity of the person or group that discriminates. Everyone experiences discrim ination. Em ployers "discriminate" when they select employees from a pool of applicants. Student s experience "discrimination"—admissions, honor rolls, sports teams, or activ ities requiring a c ertain grade p oint average. Hsu v. Roslyn Union Free Sch. Dist. No. 3 , 85 F.3d 839, 871 (2d Cir. 1996). W here selection criteria are truly irrelevant, protection is wise. But it is impossible to eradicate all discrimination. C. Where "Discrimination" Is Integ rally Related To The Exercise Of A Core
Constitutional Right, It Is Not Arbitrary, Irrational, Or Unreasonable. Action motivated by conscience and religious conviction is not the arbitrary, irrational, or unreasonable discrimination the Constitution prohibits. The law m ay proscribe the refusal to c onduct business with an entire group based on personal animosity or stereotypes. But the Fi rst Amendment demands that courts seriously consider religious motivation. In the unem ployment cases, the Suprem e Court warned that "to consider a religiously motivated resignation to be ' without good cause' tends to exhibit hostility, not neutrality, towards religion." Hobbie v. Unemployment Appeals Comm'n of Florida , 480
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U.S. 136, 142 (1987); Thomas v. Review Bd. of Ind. Emp't, 450 U.S. 707, 708 (1981). Sim ilarly, this Court would exhibit hosti lity toward religion by equati ng religious objections to the Mandate—voiced by religious organizations—with unlawful "discrimination."
Motivation is a key factor. A person who re fuses medical treatment, wanting to die, commits suicide. But a person who wants to live, yet refuses treatment based on religious convictions, does not. Gerard V. Bradley, Beguiled: Free Exercise Exemptions And The Siren Song of Liberalism , 20 Hofstra L. Rev. 245, 263-264 (199 1). Killing another pers on in selfdefense is justifiable hom icide. But the sa me act—premeditated with m alice aforethought—is first degree murder. The form er carries no legal penalties, while the latter warrants severe consequences.
Cutting through the fog dem ands examination of the circumstances. Anti-discrimination laws rightly protect against refusing a custom er based on a truly irrelevant personal characteristic. But a deli owner' s refusal to deliver food to an abortion clinic was not unlawful discrimination, because he opposed their practice of performing abortions. Rasmussen v. Glass, 498 N.W.2d at 510-511.
D. A Narrowly Crafted Exemption Would Not Constitute The A rbitrary, Unreasonable Discrimination The Constitution Rightly Prohibits.
This case involves no allegations that Plain tiffs discriminate against wom en in hiring, compensation, or other policies. B ut they cannot comply with the Manda te without sacrificing allegiance to the organizations' religious foundati ons. General anti-discrim ination principles should not be applied so expansively as to ev iscerate First Am endment rights. The Mandate extends far beyond the "m eal at the inn" prom ised by common law and encroaches on a private organization's right to operate without a m andate to vio late conscience. W hen the Suprem e Court rejected a 400-m ember dining club's facial challenge to a s tate anti-discrimination law, it
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recognized that the state could not prohibit th e exclusion of m embers whose views conflicted with positions advocated by an expressive association. What the club could not do is u se characteristics like race and sex as "shorthan d measures" in place of legitim ate membership criteria. New York State Club Ass'n, In c. v. City of New York, 487 U.S. 1, 13 (1988). Plaintiffs use no "shorthand" to discriminate against women—rather, they object to funding a narrow range of morally objectionable services. III. THE RIGHT TO ACCESS ABORTI ON DOES NOT JUSTIFY COERCED
FUNDING BY UNWILLING PRIVATE EMPLOYERS. The First A mendment protects against govern ment coercion to endorse or subsidize a cause. Wooley v. Mayn ard, 430 U.S. 705, 714 (1977); Barnette, 319 U.S. 624 (1943). The government has no power to force a speaker to support or oppose a pa rticular viewpoint. Hurley, 515 U.S. at 575. Religious liberty collapse s when secular ideologies em ploy the strong arm of the state to ad vance their causes, p romoting tolerance and respec t for some while ruthlessly suppressing others. "God is Dead and We have Killed Him !", 1993 BYU L. Rev. a t 186-188. The Mandate grates against the Constitution, essentially banning religious believers from full participation in soci ety. It is tantam ount to a statem ent that "no religious believers who refuse to [finance abortion-producing drugs] m ay be in cluded in this part of our social life." Lessons From Pharaoh , 39 Creighton L. Rev. at 573. Th e Mandate's crippling financial penalties will force employers like Plaintiffs to shut down. Even though courts h ave acknowledged constitutional rights to contraceptio n and abortion, there is no corollary right to com pel unwilling private em ployers to finance their exercise. In the companion case to Roe v. Wade, 410 U.S. 113 (1973), the Suprem e Court left intact Georgia's statutory protections for heal th care workers who object to participating in
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abortions. Doe v. Bolton , 410 U.S. 179, 205 (1973) (quoting Ga. Crim . Code § 26-1202(e) (1968)). T he Mandate com pels a private em ployer to becom e a "de facto accom plice" to a morally objectionable agenda. Pregnant women may have a legal right to abortion, but they have no accompanying right to draft their employers as unwilling accomplices who must pay for it. In this "clash of autonom ies," private em ployers are entitled to equal protectio n of their "right to choose." Reflections on Protecting Conscience for Health Care Providers, 15 S. Cal. Rev. L. & Social Justice at 340-341, 344.
A. Abortion Is A Highly Controversial, Divisive Issue. This Court must protect the rights of all citizens. Americans on both sides of the abortion debate are equally entitled to con stitutional protection for their re spective positions. The government itself may adopt a posi tion, but it falls off the constitu tional cliff whe n it compels private employers to finance m orally objectionable services c ontrary to conscience. The reproductive rights recognized in recent decades do not trump the inalienable First Amendment rights of citizens and organiza tions who cannot in good conscien ce support abortion—let alone finance it for others. Abortion is too controve rsial to justif y this severe in trusion on the fundamental rights of opponents. Many religious people and organizations view abortion as fundam entally wrong. Concerned citizens across the country have enacte d state laws to r egulate it—informed consent, parental notice, waiting periods, and other stat utory limitations. The resulting legal challenges are legion. But the very fact that such restrict ions have been proposed and passed is evidence that Americans are profoundly troubled and deeply divided. Even if this case were truly about gende r discrimination—rather than conscientious objection to a narrow range of se rvices—the contentious nature of abortion distinguishes this
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case from Bob Jones Univ. v. United States , 461 U.S. 574 (1983) (tax-e xempt status denied to racially discriminatory school). The activities of a charitable orga nization must not be "contrary to settled public policy." Id. at 585. There is a well-settle d, "firm national policy to prohibit racial segregation and discrim ination in public education." Id. at 593. That policy justified denial of charitable status to a r acially discriminatory institution. There is no comparable established policy favoring abortion rights—instea d, there is in tense division and passionate emotion as the debate rages on.
B. Religious Freedom Is Our First Liberty—It Should No t Be Dismantled To Coerce Private Funding Of Abortion Rights.
America was founded by people who risked th eir lives to escape religious tyranny and observe their faith free from government intrusion. Congress has ranked religious freedom "among the most treasured birthrights of ever y American." Sen. Rep. No. 103-111, 1st Sess., p. 4 (1993), reprinted in 1993 U.S. Code C ong. & Admin. News, at pp. 1893-1894. The Supreme Court expressed it eloq uently in ruling that an alien could not be den ied citizenship because of his religious objections to bearing arms:
The struggle for religious liberty has thro ugh the centuries been an effort to accommodate the demands of the State to the con science of the individual. The victory for freedom of thought recorded in our Bill of Rights reco gnizes that in the dom ain of conscience there is a moral power higher th an the State. Throughout the ages, m en have suffered death rather than subordinate their allegiance to God to th e authority of the State. Freedom of religion guaranteed by the First Amendment is the product of that struggle. Girouard v. United States , 328 U.S. at 68. We da re not sacrifice priceless Am erican freedoms through misguided—or even well-intentioned —government efforts to broaden access to contraception and/or abortion. Pro-life advocates have not forfeited their right to operate either a business or religious institution in a manner consistent with their convictions.
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C. No Person Has A Constitutional Right To

Free Access To Abortion.

Accommodation Of A Private Employer' s Conscience Poses No Threat To

Any Employee's Legal Rights.

An employer does not impose its religion on employees merely by declining to finance

abortion-producing drugs. No pr ivate party is obligated to dire ctly facilitate or fund another

party's rights. Em ployees are free to access abortion—what they can not do is com pel their

employers to pay for it. An em ployer pays for an employee's time and services to the bus iness.

It does not monitor—let alon e endorse—every purchase the employee decides to m ake. The

Mandate requires the employer to pay premiums that ensure free access to morally objectionable

drugs and services.

Even the government is not obligated to fi nance abortion. On the contrary, the state may

prefer childbirth and allocate scarce resources accordingly. Harris v. McRae, 448 U.S. 297, 315

(1980); Rust v. Sullivan, 500 U.S. 173, 201 (1991). The governm ent has "no affirmative duty to

'commit any resources to facilitating abortions.'" Id., quoting Webster v. Reprod. Health Servs.,

492 U.S. 490, 511 (1989). See also Bowen v. Kendrick, 487 U.S. 589, 596-597 (1988) (the

Adolescent Family Life Act restricts funding to "programs or projects which do not provide

abortions or abortion counseling or referral"). The government's sole obligation is not to im pose

"undue interference" on abortion. Planned Parenthood of Se. Pa. v. Casey , 505 U.S. 833, 846

(1992). A ccommodation of a private em ployer's conscience im poses no burden on any

employee's rights—but the Mandate does impos e "undue interference" on the em ployer's

constitutional rights.

Private individuals and organizations have an affirmative constitutional right to opp ose

abortion and decline to f und it, free of government intrusion. The governm ent cannot impose a

particular view of sexual morality on religious institutions (or private entrepreneurs) and coerce

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them to facilitate it. Th e Constitution bars any public official from prescribing orthodoxy in religion. Barnette, 319 U.S. at 642. The Mandate gu ts the First Am endment, brazenly exhibiting the "callous indiffere nce" to religion never intende d by the Establishment Clause. Lynch v. Donnelly , 465 U.S. 668, 673 (1984), citing Zorach v. Clauson, 343 U.S. 306, 314 (1952). The Constitution "affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any." Id.
Some advocates argue that c ourts must balance conflicting interests and not necessarily accommodate religion where the rights of thir d parties are detrim entally affected. Catholic Charities of Sacramento, Inc. v. S uperior Court, 85 P.3d 67, 93-94 (Cal. 2004); Catholic Charities of Diocese of Albany v. Seri , 859 N.E.2d 459, 461 (N.Y. 2006) (sam e). Some earlier free exercise cases did not im plicate third party rights, so it was unnecessary to balance rights. Sherbert v. Verner, 374 U.S. 398 (and other unemployment cases); Wisconsin v. Yoder, 406 U.S. 205 (parental rights to educate children). In other cases, courts have denied religious exemptions where accommodation would endanger m inor children and/or community health. Reynolds v. United States, 98 U.S. 145 (1878) (polygam y); Prince v. Massachusetts , 321 U.S. 158 (child labor); Jacobson v. Massachusetts, 197 U.S. 11 (1905) (vaccination); Walker v. Superior Court, 763 P.2d 852 (Cal. 1988) (m edical treatment for ch ild). In these cases, the restriction on religious liberty was narrow and the conduct at issue "invariably posed some substantial threat to public safety, peace or order." Sherbert v. Verner, 374 U.S. at 403. In ot her cases, courts have balanced conflicting rights. Som etimes the nature and extent of infringem ent on t he relevant rights is a key factor in the outco me. The Ja ycees and Rotary los t free association c laims because they could not show that adm itting female members would actually hinder th eir
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organizational expression. Roberts v. United S tates Jaycees, 468 U.S. 609, 624 (1984); Bd. of
Dirs. of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537, 548 (1987).
More recently, First Amendm ent rights to free association have trum ped statutory anti-
discrimination rights. Hurley, 515 U.S. 557; Boy Scouts of Am. v. Dale , 530 U.S. 640. Thi s
Court cannot brush aside Plainti ffs' conscientious objections to the M andate without flouting
these precedents. Pro tection of reproductive rights does n ot justify compelling employers to
disregard their deepest convictions when operating a business or ministry—risking financial ruin
or professional displacement. That is particularly true in the absence of any employee's right to
free abortion services financed by her employer.
D. Other Cases Limiting Religious F reedom Left The Objector With A Viable Choice. The HHS Mandate Does Not.
Cases involving comparable legal mandates provide some avenue of escape:
• Religious charities required to include contraception in their prescription drug plan could simply discontinue drug coverage.
o Catholic Charities of Sacramento , 85 P.3d at 76 ("[T]he W CEA implicitly permits any employer to avoid covering contraceptives by not offering coverage for prescription drugs.");
o Catholic Charities of Diocese of Albany , 859 N.E.2d at 468 ("W HWA does not literally compel them to purchase contraceptive coverage for their em ployees, in violation of their religious beliefs; it only requires that policies that provide prescription drug coverage include coverage for contraceptives. ")
• The Ninth Circuit suggested that a religious school could discontinue its employee health insurance program altogether in o rder to com ply with its re ligious conviction that o nly male employees should be offered this benefit. EEOC v. Fremont Christian Sch. , 781 F.2d 1362 (9th Cir. 1986).
• A religious school offering supplemental pay to heads of household could discontinue the program and m aintain lower salaries for all employees. Dole v. Shenandoah Baptist Church, 899 F.2d 1389 (4th Cir. 1990).
• A religious school could continue to operate , but without the benefits of tax-exem pt status. Bob Jones Univ. v. United States , 461 U.S. at 603-604 ("Denial of tax benefits
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will inevitably have a s ubstantial impact on the operation of private r eligious schools, but will not prevent those schools from observing their religious tenets.") • Students who object to using m andatory registration fees f or student health insurance covering abortion could presumably enroll in another institution. Goehring v. Brophy, 94 F.3d 1294 (9th Cir. 1996); Erzinger v. Regents of Univ. of Cal ., 137 Cal. App. 3d 389 (Cal. Ct. App. 1982). • Two plaintiffs who objected to the individua l health insurance m andate could make the shared responsibility payment instead. Mead v. Holde r, 766 F. Supp. 2d 16 (D.D.C. 2011), aff'd, Seven-Sky v. Holder, 661 F.3d 1, 42 (D.C. Cir. 2011). These counter-productive "solutions" harm numerous third parties and restrict access to goods and services. E limination of medical insurances harms all employees, including the women who desired contrace ptive coverage in the Catholic Charities cases an d the fem ale employees in Fremont Christian School. But these alternatives—undesirable as they are—pale in com parison to the draconian HHS Mandate, which leaves larger em ployers with virtually no escape hatch. A s the D.C. District Court observed: Unlike the plain tiffs in Mead, the only alternative offered to the plaintiffs here is noncompliance with the contraceptive coverage mandate and its attendant risk of suit and enormous financial penalties. The avai lability of a rea sonable alternative for the plaintiffs in Mead eliminated the pressure on th em to violate their religious beliefs; the plaintiffs here have no such alternative, and th erefore, the pressure to violate their religious beliefs remains undiminished. Tyndale, at *46-47. Em ployers may avoid the Ma ndate only by cutting the work force— resulting in a loss of jobs a nd insurance benefits—contrary to the prim ary purpose of the Affordable Care Act. The Mandate will ultimately restrict access to goods and services and stall economic growth by forcing conscientious em ployers to restrict the size of their operations or shut down altogether.
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IV. EVEN IN THE COMMERCIAL SP HERE, BELIEVERS DO NOT FORFEIT THEIR CONSTITUTIONAL RIGHTS. The Mandate squeezes people of fa ith out of full participati on in public life. Lessons
From Pharaoh, 39 Creighton L. Rev. at 5 61-563. Religion does not e nd where daily life begins. Morality cannot be ejected from the public realm. If religion is shoved to the private fringes of life, constitutional guarantees ring hollow. "God is Dead and We have Killed Him!" , 1993 BYU L. Rev. at 176.
Some recent District Court decisions cite persuasive authority for protecting the religious freedom of individuals who conduct their fo r-profit businesses in corporate form . See, e.g., Monaghan v. Sebelius , 2:12-cv-15488, 2013 U.S. Dist. LEXIS 35144 (E.D. Mich. March 14, 2013), *10, citing Stormans, Inc. v. Selecky , 586 F.3d 1109, 1120 (9th C ir. 2009) and EEOC v. Townley Eng'g & Mfg. Co. , 859 F.2d 610, 619 (9th Cir. 1988) (c losely held corporation m ay assert the r eligious rights of its o wners). The Supreme Court's protection of corporate free speech rights bolsters that argument. Citizens United v. Fed . Election Comm'n, 558 U.S. 310, 342-343 (2010); First Nat'l Bank v. Bellotti, 435 U.S. 765, 784 (1978).
These arguments even more convincing wher e religious organizations are involved. The state actively regulates commerce but the intern al affairs of religious en tities are generally off limits.
A. Free Exercise Cases Commonly Arise In The Context Of Commercial Activity.
Conflicts between religion and regulation typically occur in commercial settings, wh ere government has greater regulatory power:
• Braunfeld v. Brown, 366 U.S. 599 (1961) (Sunday closing); • Sherbert v. Verner, 374 U.S. 398 (and other unemployment cases); • United States v. Lee, 455 U.S. 252 (1982) (Amish business); • Roberts v. United States Jaycees, 468 U.S. 609 (commercial association);
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• Tony and Susan Alamo Found. v. Sec'y of Labor, 471 U.S. 290 (1985); • State ex rel. McClure v. Spor ts & Health Club, Inc., 370 N.W.2d 844, 853 (Minn. 1985)
(hiring); • Rasmussen v. Glass, 498 N.W.2d 508 (food delivery); • Swanner v. Anchorage Equal Rights Comm'n, 874 P.2d 274 (Alaska 1994) (housing); • Attorney Gen. v. Desilets, 636 N.E.2d 233 (Mass. 1994) (same); • Catholic Charities of Sacramento, 85 P.3d at 93.
Some claimants succeeded (Sherbert, Rasmussen, Desilets), while others did not (Braunfeld, Lee,
Roberts, Alamo Found., McClure, Swanner, Catholic Charities ). The "commercial" factor does
not dictate the outcome.
But with the advent of the draconian HHS Mandate to finance contraception and
abortion-inducing drugs, even the church sanctuary provides no safe haven from the strong arm
of the state.
United States v. Lee is often cited to oppose religious exemptions in the comm ercial
sphere. Catholic Charities of Sacramento, 85 P.3d at 93. But read in context, Lee does not hold
that believers forfeit their constitutional rights in the business world:
Congress and the courts have been sensitive to the needs flowing from the Free Exercise Clause, but every person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs. When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith ar e not to be superim posed on the statutory schemes which are binding on others in that activity.
United States v. Lee, 455 U.S. at 261 (emphasis added). Religious freedom is more limited in the
commercial realm—but not abrogated altogether.
B. The Government Discriminates Against Employers Who Hold Conscientious Objections To Abortion.
The Mandate's onerous financial penalties threaten the very existence of certain
employers—even religious institu tions, like Plaintiffs, who cannot in good conscience com ply.
"No person can be punished for entertaining or professing religi ous beliefs or disbeliefs...."
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Everson v. Bd. of Educ. of Ewing, 330 U.S. 1, 15-16 (1947). A citizen may not be excluded from a profession by unconsti tutional criteria. Baird v. State Bar of Arizona , 401 U.S. 1, 6-7 (1971) (attorney); Keyishian v. Bd. of Regents , 385 U.S. 589, 607 (1967) (professor). This is itself a form of d iscrimination. Courts have a "duty to guard and respect that sphere of inviolable conscience and belief which is the m ark of a fr ee people." Lee v. Weisman, 505 U.S. 577, 592 (1992). V. THE ARGUMENTS ARE EVEN MORE COMPELLING WHERE THE
EMPLOYER IS A RELIGIOUS ORGANIZATION. The First Amendment demands government neutrality so that each religious creed may "flourish according to the zeal of its adherents and the appeal of its dogma." Zorach v. Clauson, 343 U.S. at 313. The Fram ers intentionally protected "the integrity of individual conscience in religious matters." McCreary County, KY v. ACLU, 545 U.S. 844, 876 (2005). Even if Plaintiffs were business corpor ations, the Mandate would unconstitutionally burden their liberty. But they ar e pervasively religious organizations—and "the text of the First Amendment itself...gives special solicitude to the rights of religious organizations." HosannaTabor Evangelical Lutheran Church and School v. EEOC , 132 S. Ct. 694, 706 (2012). Looking back over a century, the U.S. Supreme Court observed that: Watson "radiates ... a spirit of free dom for religious organizations, an independence from secular control or manipulation—in short, power to decide for themselves, free from state interference, matters of church government as well as t hose of faith and doctrine." Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America , 344 U. S. 94, 116 (1952). Id. at 704, referencing Watson v. Jones, 80 U.S. 679 (1872). Plaintiffs have determined that, as a matter of "faith and doctrine," they would violate the Sixth Commandment prohibition of murder by providing their employees free access to abortifacents through their health insurance plans.
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Moreover, the Mandate does not fit the contours of Dept. of Human Resources of Ore. v.

Smith, 494 U. S. 872 (1990). As the Hosanna Court explained:

Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself.

Hosanna, 132 S. Ct. at 707, citing

Smith, 494 U.S. at 877 (distinguishing the

government's regulation of "physical acts" from its "lend[ing] its power to one or the other side

in controversies over religious authority or dogma"). Although Hosanna involved the right of a

religious organization to select m inisterial employees, it implies broad liberty to determ ine and

apply religious doctrine in the operation of a ministry, including other aspects of the employment

relationship. The Man date encroaches on th is liberty by requiring relig ious organizations to

finance their employees' use of procedures and dr ugs that clash with the r eligious doctrine they

were founded to uphold.

VI. IRONICALLY, THE MANDATE WEAKENS CONSTITUTIONAL PROTECTION FOR EVERYONE—I NCLUDING THOSE WHO ADVOCAT E IMPOSING IT ON UNWILLING PRIVATE EMPLOYERS.

The right to freely access abortion is a relative ly recent judicial development. Advocates

accomplished this dram atic social and political transform ation by ex ercising rights to free

speech, press, association, and th e political process generally. The status of various m inority

groups has improved dramatically because th e Constitution guarantees free exp ression and

facilitates the advocacy of new ideas. Defending the First Amendment From Antidiscrimination,

82 N.C. L. Rev. at 232. But no gr oup can dem and for itself what it would deny to others—

otherwise, the constitutional foundation will cr umble and all Am ericans will suffer. Overly

aggressive advocacy erodes protection for othe r liberties. Reproductiv e rights do not trum p all

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other rights, particularly since no person has a right to coerced funding from either public or
private sources.
This Court needs to preserv e the constitutional liberties guaranteed to all citizens.
Americans who want to expand their own civil rights must grant equal respect to opponents—not
crush them with ruinous legal penalties:
The price of freedom of religion or of speech or of the press is that we must put up with, and even pay for, a good deal of rubbish.
United States v. Ballard, 322 U.S. 78, 95 (1944).
If Americans are going to preserve their civil liberties...they will need to develop thicker skin. One p rice of livin g in a free society is toleration of those who intentionally or unintentionally offend others. Th e current trend, however, is to give offended parties a legal remedy, as long as the offense can be construed as "discrimination." ... Preserving liberalism, and the civil liberties that go with it, requires a certain level of virtue by the citizenry. Among those necessary virtu es is tolerance of those who intentionally or unintentionally offend, and som etimes, when civil liberties are implicated, who blatantly discriminate. A society that undercuts civil liberties in pursuit of the "equality" offered by a statu tory right to be free from all slights will ultim ately end up with neither equality nor civil liberties.
Defending the First Amendment From Antidiscrimination, 82 N.C. L. Rev. at 245.
This principle cuts across all viewpoints and all constitutional rights. The Firs t
Amendment protects a broad spectr um of expr ession, popular or no t. In fact, the increasing
popularity of an idea m akes it all the m ore essential to protect dissenting voices. Boy Scouts of
Am. v. Dale, 530 U.S. at 660. Censorship spells death for a free society. "Once used to stifle the
thoughts that we hate...it can stifle the ideas we love." Gay Alliance of Students v. Matthews ,
544 F.2d 162, 167-168 (4th Cir. 1976). Justice Black said it well in a case about the Communist
Party, which advocated some of the most dangerous ideas of the twentieth century:
"I do not believe that it can be too often repeated that th e freedoms of speech, press, petition and assembly guaranteed by the Fi rst Amendment must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish." Communist Party v. SACB, 367 U.S. 1, 137 (dissenting opinion) (1961).
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Healy v. James , 408 U.S. 169, 187-188 (1972). Healy is about association—not reproductive rights. But upholding the Mandate will not ultim ately advance the caus e of any group seeking enhanced constitutional protection. On the contrary, the liberty of all Am ericans will suf fer irreparable harm if a judicially manufactured right to coerced funding of reproductive rights is allowed to stifle rights of religion and conscience. Non-discrimination principles should never be applied in a discrim inatory, unequal m anner that squelches the Firs t Amendment rights of others.
CONCLUSION This Court should grant Plaintiffs' Motion for Prelim inary Injunction and deny Defendants' Motion to Dismiss, or in the alternative, for Summary Judgment.

Dated: October 7, 2013

Respectfully submitted,

Liberty,

s/Michael A. Wilkins Michael A. Wilkins Broyles Kight & Ricafort, PC 8250 Haverstick Road, Suite 100 Indianapolis, Indiana 46240 (317) 571-3601 Phone (317) 571-3610 Fax Email: mwilkins@bkrlaw.com
Counsel for Amicus Curiae Life, and Law Foundation

_______

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CERTIFICATE OF SERVICE I hereby certify that on Oc tober 7, 2013, I electronical ly filed the foregoing amici curiae brief with this cour t by using this court's CM/ECF system , which will se rve notice on the attorneys of record in this case who are registered with the CM/ECF system.

DATED: October 7, 2013
Liberty,

s/Michael A. Wilkins Michael A. Wilkins Broyles Kight & Ricafort, PC 8250 Haverstick Road, Suite 100 Indianapolis, Indiana 46240 (317) 571-3601 Phone (317) 571-3610 Fax Email: mwilkins@bkrlaw.com
Counsel for Amicus Curiae Life, and Law Foundation

_______

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 case 3:12-cv-00459-JD-CAN document 69 filed 10/11/13 page 1 of 4

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

GRACE SCHOOLS and BIOLA UNIVERSITY, INC.
Plaintiffs,
v.
KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; THOMAS E. PEREZ, in his official capacity as Secretary of the United States Department of Labor; JACOB J. LEW, in his official capacity as Secretary of the United States Department of the Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; and UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants.

) ) ) ) ) Case No. 3:12-cv-459 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

PLAINTIFFS’ CROSS-MOTION FOR SUMMARY JUDGMENT

Pursuant to Federal Rule of Civil Procedure 56, Plainti ffs hereby m ove for summ ary judgment on all of Pl aintiffs’ claims. The grounds for this m otion are set forth in the accompanying memorandum of law. This m otion is also supported by the following evidentiary materials that are attached:

Exhibit A Declaration of Wanda Bollman;

Exhibit B Exhibit C Exhibit D Exhibit E Exhibit F

Declaration of Steve Carlson; Declaration of Tonya Lee Fawcett; Declaration of John French; Declaration of Lisa Harman; Grace College and Seminary Faculty Application for Employment;
1

case 3:12-cv-00459-JD-CAN document 69 filed 10/11/13 page 2 of 4
Exhibit G Grace College and Seminary Staff Application for Employment; Exhibit H Declaration of Dee Anna Muraski; Exhibit I Declaration of Arielle Peters; Exhibit J Declaration of Sarah Prater; Exhibit K Declaration of David Swain; Exhibit L Declaration of Peter Wolff; Exhibit M Declaration of Alison Arcadi; Exhibit N Declaration of Ketha Boespflug; Exhibit O Declaration of Cynthia Cole; Exhibit P Declaration of Alanna Godoy; Exhibit Q Declaration of Chris Grace; Exhibit R Declaration of Ronald Mooradian; Exhibit S Declaration of Scott Rae; Exhibit T Declaration of Wendy Walker; Respectfully submitted this 11th day of October, 2013.
/s Gregory S. Baylor Gregory S. Baylor (Texas Bar No. 01941500) Matthew S. Bowman (DC Bar No. 993261) ALLIANCE DEFENDING FREEDOM 801 G Street, NW, Suite 509 Washington, DC 20001 (202) 393-8690 (202) 347-3622 (facsimile) gbaylor@alliancedefendingfreedom.org mbowman@alliancedefendingfreedom.org
2

case 3:12-cv-00459-JD-CAN document 69 filed 10/11/13 page 3 of 4
David A. Cortman (Georgia Bar No. 188810) ALLIANCE DEFENDING FREEDOM 1000 Hurricane Shoals Road, NE, Suite D-1100 Lawrenceville, GA 30043 (770) 339-0774 (770) 339-6744 (facsimile) dcortman@alliancedefendingfreedom.org Kevin H. Theriot (Kansas Bar No. 21565) ALLIANCE DEFENDING FREEDOM 15192 Rosewood Leawood, KS 66224 (913) 685-8000 (913) 685-8001 (facsimile) ktheriot@alliancedefendingfreedom.org Jerry Mackey (California Bar No.90416) 13800 Biola Avenue La Mirada, CA 90639 (562) 903-4777 (562) 903-4748 (facsimile) university.legalcounsel@biola.edu Jane Dall Wilson (Atty No. 24142-71A) FAEGRE BAKER DANIELS LLP 300 North Meridian Street, Suite 2700 Indianapolis, IN 46204 (317) 237-0300 (317) 237-1000 (facsimile) jane.wilson@faegrebd.com Attorneys for Plaintiffs
3

case 3:12-cv-00459-JD-CAN document 69 filed 10/11/13 page 4 of 4 CERTIFICATE OF SERVICE
I hereby certify that on Oct ober 11, 2013 I electronically f iled the foregoing with the Clerk of Court using the CM/ECF system which will sen d notification of such filing to a ll counsel of record.
s/ Gregory S. Baylor
4

case 3:12-cv-00459-JD-CAN document 69-1 filed 10/11/13 page 1 of 1

INDEX OF EXHIBITS PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

Exhibit A B C D E F G H I J K L M N O P Q R S T

Description

Bates Number

Wanda Bollman Declaration

1-5

Steve Carlson Declaration

6-10

Tonya Lee Fawcett Declaration

11-15

John French Declaration

16-20

Lisa Harman Declaration

21-25

Grace College and Seminary Faculty Application for Employment

26-30

Grace College and Seminary Staff Application for Employment

31-35

Dee Anna Muraski Declaration

36-39

Arielle Peters Declaration

40-44

Sarah Prater Declaration

45-49

David Swain Declaration

50-53

Peter Wolff Declaration

54-58

Alison Arcadi Declaration

59-63

Ketha Boespflug Declaration

64-67

Cynthia Cole Declaration

68-71

Alanna Godoy Declaration

72-75

Chris Grace Declaration

76-80

Ronald Mooradian Declaration

81-84

Scott Rae Declaration

85-89

Wendy Walker Declaration

90-94

case 3:12-cv-00459-JD-CAN document 69-2 filed 10/11/13 page 1 of 5
EXHIBIT A
Plaintiffs' Motion for Summary Judgment Exhibits 00001

case 3:12-cv-00459-JD-CAN document 69-2 filed 10/11/13 page 2 of 5
Plaintiffs' Motion for Summary Judgment Exhibits 00002

case 3:12-cv-00459-JD-CAN document 69-2 filed 10/11/13 page 3 of 5
Plaintiffs' Motion for Summary Judgment Exhibits 00003

case 3:12-cv-00459-JD-CAN document 69-2 filed 10/11/13 page 4 of 5
Plaintiffs' Motion for Summary Judgment Exhibits 00004

case 3:12-cv-00459-JD-CAN document 69-2 filed 10/11/13 page 5 of 5 11th
Plaintiffs' Motion for Summary Judgment Exhibits 00005

case 3:12-cv-00459-JD-CAN document 69-3 filed 10/11/13 page 1 of 5
EXHIBIT B
Plaintiffs' Motion for Summary Judgment Exhibits 00006

case 3:12-cv-00459-JD-CAN document 69-3 filed 10/11/13 page 2 of 5

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Plaintiffs' Motion for Summary Judgment Exhibits 00008

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Plaintiffs' Motion for Summary Judgment Exhibits 00009

case 3:12-cv-00459-JD-CAN document 69-3 filed 10/11/13 page 5 of 5 DECLARATION UNDER PENALTY OF PERJURY
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([HFXWHG WKLV BB GD\ RI 2FWREHU  DW :LQRQD /DNH ,QGLDQD s/Steve Carlson 6WHYH &DUOVRQ *I certify that I have the signed original of this document, which is available for inspection at any time by the Court or a party to this action.
Plaintiffs' Motion for Summary Judgment Exhibits 00010

case 3:12-cv-00459-JD-CAN document 69-4 filed 10/11/13 page 1 of 5
EXHIBIT C
Plaintiffs' Motion for Summary Judgment Exhibits 00011

case 3:12-cv-00459-JD-CAN document 69-4 filed 10/11/13 page 2 of 5
Plaintiffs' Motion for Summary Judgment Exhibits 00012

case 3:12-cv-00459-JD-CAN document 69-4 filed 10/11/13 page 3 of 5
Plaintiffs' Motion for Summary Judgment Exhibits 00013

case 3:12-cv-00459-JD-CAN document 69-4 filed 10/11/13 page 4 of 5
Plaintiffs' Motion for Summary Judgment Exhibits 00014

case 3:12-cv-00459-JD-CAN document 69-4 filed 10/11/13 page 5 of 5
Plaintiffs' Motion for Summary Judgment Exhibits 00015

case 3:12-cv-00459-JD-CAN document 69-5 filed 10/11/13 page 1 of 5
EXHIBIT D
Plaintiffs' Motion for Summary Judgment Exhibits 00016

case 3:12-cv-00459-JD-CAN document 69-5 filed 10/11/13 page 2 of 5
Plaintiffs' Motion for Summary Judgment Exhibits 00017

case 3:12-cv-00459-JD-CAN document 69-5 filed 10/11/13 page 3 of 5
Plaintiffs' Motion for Summary Judgment Exhibits 00018

case 3:12-cv-00459-JD-CAN document 69-5 filed 10/11/13 page 4 of 5
Plaintiffs' Motion for Summary Judgment Exhibits 00019

case 3:12-cv-00459-JD-CAN document 69-5 filed 10/11/13 page 5 of 5
Plaintiffs' Motion for Summary Judgment Exhibits 00020

case 3:12-cv-00459-JD-CAN document 69-6 filed 10/11/13 page 1 of 5
EXHIBIT E
Plaintiffs' Motion for Summary Judgment Exhibits 00021

case 3:12-cv-00459-JD-CAN document 69-6 filed 10/11/13 page 2 of 5
Plaintiffs' Motion for Summary Judgment Exhibits 00022

case 3:12-cv-00459-JD-CAN document 69-6 filed 10/11/13 page 3 of 5
Plaintiffs' Motion for Summary Judgment Exhibits 00023

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Plaintiffs' Motion for Summary Judgment Exhibits 00024

case 3:12-cv-00459-JD-CAN document 69-6 filed 10/11/13 page 5 of 5
Plaintiffs' Motion for Summary Judgment Exhibits 00025

case 3:12-cv-00459-JD-CAN document 69-7 filed 10/11/13 page 1 of 5
EXHIBIT F
Plaintiffs' Motion for Summary Judgment Exhibits 00026

case 3:12-cv-00459-JD-CAN document 69-7 filed 10/11/13 page 2 of 5

case 3:12-cv-00459-JD-CAN document 69-7 filed 10/11/13 page 3 of 5
Plaintiffs' Motion for Summary Judgment Exhibits 00028

case 3:12-cv-00459-JD-CAN document 69-7 filed 10/11/13 page 4 of 5
Plaintiffs' Motion for Summary Judgment Exhibits 00029

case 3:12-cv-00459-JD-CAN document 69-7 filed 10/11/13 page 5 of 5

case 3:12-cv-00459-JD-CAN document 69-8 filed 10/11/13 page 1 of 5
EXHIBIT G
Plaintiffs' Motion for Summary Judgment Exhibits 00031

case 3:12-cv-00459-JD-CAN document 69-8 filed 10/11/13 page 2 of 5

case 3:12-cv-00459-JD-CAN document 69-8 filed 10/11/13 page 3 of 5
Plaintiffs' Motion for Summary Judgment Exhibits 00033

case 3:12-cv-00459-JD-CAN document 69-8 filed 10/11/13 page 4 of 5
Plaintiffs' Motion for Summary Judgment Exhibits 00034

case 3:12-cv-00459-JD-CAN document 69-8 filed 10/11/13 page 5 of 5

case 3:12-cv-00459-JD-CAN document 69-9 filed 10/11/13 page 1 of 4
EXHIBIT H
Plaintiffs' Motion for Summary Judgment Exhibits 00036

case 3:12-cv-00459-JD-CAN document 69-9 filed 10/11/13 page 2 of 4
Plaintiffs' Motion for Summary Judgment Exhibits 00037

case 3:12-cv-00459-JD-CAN document 69-9 filed 10/11/13 page 3 of 4
Plaintiffs' Motion for Summary Judgment Exhibits 00038

case 3:12-cv-00459-JD-CAN document 69-9 filed 10/11/13 page 4 of 4
Plaintiffs' Motion for Summary Judgment Exhibits 00039

case 3:12-cv-00459-JD-CAN document 69-10 filed 10/11/13 page 1 of 5
EXHIBIT I
Plaintiffs' Motion for Summary Judgment Exhibits 00040

case 3:12-cv-00459-JD-CAN document 69-10 filed 10/11/13 page 2 of 5
Plaintiffs' Motion for Summary Judgment Exhibits 00041

case 3:12-cv-00459-JD-CAN document 69-10 filed 10/11/13 page 3 of 5
Plaintiffs' Motion for Summary Judgment Exhibits 00042

case 3:12-cv-00459-JD-CAN document 69-10 filed 10/11/13 page 4 of 5
Plaintiffs' Motion for Summary Judgment Exhibits 00043

case 3:12-cv-00459-JD-CAN document 69-10 filed 10/11/13 page 5 of 5 11
Plaintiffs' Motion for Summary Judgment Exhibits 00044

case 3:12-cv-00459-JD-CAN document 69-11 filed 10/11/13 page 1 of 5
EXHIBIT J
Plaintiffs' Motion for Summary Judgment Exhibits 00045

case 3:12-cv-00459-JD-CAN document 69-11 filed 10/11/13 page 2 of 5
Plaintiffs' Motion for Summary Judgment Exhibits 00046

case 3:12-cv-00459-JD-CAN document 69-11 filed 10/11/13 page 3 of 5
Plaintiffs' Motion for Summary Judgment Exhibits 00047

case 3:12-cv-00459-JD-CAN document 69-11 filed 10/11/13 page 4 of 5
Plaintiffs' Motion for Summary Judgment Exhibits 00048

case 3:12-cv-00459-JD-CAN document 69-11 filed 10/11/13 page 5 of 5
Plaintiffs' Motion for Summary Judgment Exhibits 00049

case 3:12-cv-00459-JD-CAN document 69-12 filed 10/11/13 page 1 of 4
EXHIBIT K
Plaintiffs' Motion for Summary Judgment Exhibits 00050

case 3:12-cv-00459-JD-CAN document 69-12 filed 10/11/13 page 2 of 4
Plaintiffs' Motion for Summary Judgment Exhibits 00051

case 3:12-cv-00459-JD-CAN document 69-12 filed 10/11/13 page 3 of 4
Plaintiffs' Motion for Summary Judgment Exhibits 00052

case 3:12-cv-00459-JD-CAN document 69-12 filed 10/11/13 page 4 of 4
Plaintiffs' Motion for Summary Judgment Exhibits 00053

case 3:12-cv-00459-JD-CAN document 69-13 filed 10/11/13 page 1 of 5
EXHIBIT L
Plaintiffs' Motion for Summary Judgment Exhibits 00054

case 3:12-cv-00459-JD-CAN document 69-13 filed 10/11/13 page 2 of 5

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case 3:12-cv-00459-JD-CAN document 69-13 filed 10/11/13 page 3 of 5
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Plaintiffs' Motion for Summary Judgment Exhibits 00056

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Plaintiffs' Motion for Summary Judgment Exhibits 00057

case 3:12-cv-00459-JD-CAN document 69-13 filed 10/11/13 page 5 of 5 DECLARATION UNDER PENALTY OF PERJURY
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([HFXWHG WKLV BB GD\ RI 2FWREHU  DW :LQRQD /DNH ,QGLDQD s/Peter Wolff 3HWHU :ROII *I certify that I have the signed original of this document, which is available for inspection at any time by the Court or a party to this action.
Plaintiffs' Motion for Summary Judgment Exhibits 00058

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EXHIBIT M
Plaintiffs' Motion for Summary Judgment Exhibits 00059

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Plaintiffs' Motion for Summary Judgment Exhibits 00060

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Plaintiffs' Motion for Summary Judgment Exhibits 00061

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Plaintiffs' Motion for Summary Judgment Exhibits 00062

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Plaintiffs' Motion for Summary Judgment Exhibits 00063

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EXHIBIT N
Plaintiffs' Motion for Summary Judgment Exhibits 00064

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Plaintiffs' Motion for Summary Judgment Exhibits 00065

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Plaintiffs' Motion for Summary Judgment Exhibits 00066

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Plaintiffs' Motion for Summary Judgment Exhibits 00067

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EXHIBIT O
Plaintiffs' Motion for Summary Judgment Exhibits 00068

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Plaintiffs' Motion for Summary Judgment Exhibits 00069

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Plaintiffs' Motion for Summary Judgment Exhibits 00070

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Plaintiffs' Motion for Summary Judgment Exhibits 00071

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EXHIBIT P
Plaintiffs' Motion for Summary Judgment Exhibits 00072

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Plaintiffs' Motion for Summary Judgment Exhibits 00073

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Plaintiffs' Motion for Summary Judgment Exhibits 00074

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Plaintiffs' Motion for Summary Judgment Exhibits 00075

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EXHIBIT Q
Plaintiffs' Motion for Summary Judgment Exhibits 00076

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Plaintiffs' Motion for Summary Judgment Exhibits 00077

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Plaintiffs' Motion for Summary Judgment Exhibits 00078

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Plaintiffs' Motion for Summary Judgment Exhibits 00079

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Plaintiffs' Motion for Summary Judgment Exhibits 00080

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EXHIBIT R
Plaintiffs' Motion for Summary Judgment Exhibits 00081

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Plaintiffs' Motion for Summary Judgment Exhibits 00082

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Plaintiffs' Motion for Summary Judgment Exhibits 00083

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Plaintiffs' Motion for Summary Judgment Exhibits 00084

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EXHIBIT S
Plaintiffs' Motion for Summary Judgment Exhibits 00085

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Plaintiffs' Motion for Summary Judgment Exhibits 00086

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Plaintiffs' Motion for Summary Judgment Exhibits 00087

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Plaintiffs' Motion for Summary Judgment Exhibits 00088

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Plaintiffs' Motion for Summary Judgment Exhibits 00089

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EXHIBIT T
Plaintiffs' Motion for Summary Judgment Exhibits 00090

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Plaintiffs' Motion for Summary Judgment Exhibits 00091

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Plaintiffs' Motion for Summary Judgment Exhibits 00092

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Plaintiffs' Motion for Summary Judgment Exhibits 00093

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Plaintiffs' Motion for Summary Judgment Exhibits 00094

 
 case 3:12-cv-00459-JD-CAN document 70 filed 10/11/13 page 1 of 56

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

GRACE SCHOOLS and BIOLA UNIVERSITY, INC.
Plaintiffs,
v.
KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; THOMAS E. PEREZ, in his official capacity as Secretary of the United States Department of Labor; JACOB J. LEW, in his official capacity as Secretary of the United States Department of the Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; and UNITED STATES DEPARTMENT OF THE TREASURY,

) ) ) ) ) Case No. 3:12-cv-459 JD ) ) ) ) ) ) ) ) ) ) ) ) ) )

Defendants.

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTIONS FOR PRELIMINARY INJUNCTION AND SUMMARY MOTION AND IN OPPOSITION TO
DEFENDANTS’ MOTION TO DISMISS

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TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................................... ii INTRODUCTION ...........................................................................................................................1 STANDARD OF REVIEW .............................................................................................................7 ARGUMENT ...................................................................................................................................9 I. THE SCHOOLS ARE ENTITLED TO A PRELIMINARY INJUNCTION AND
SUMMARY JUDGMENT ON THEIR RFRA CLAIM. ....................................................9 A. The Mandate Substantially Burdens the Schools’ Religious Exercise ....................9 B. The Mandate Is Not the Least Restrictive Means of Advancing Any
Compelling Governmental Interest........................................................................17 C. The Balance of the Equities Warrants Entry of a Preliminary Injunction. ............22 II. THE SCHOOLS ARE ENTITLED TO SUMMARY JUDGMENT ON THEIR FREE EXERCISE CLAUSE CLAIM. ..............................................................................23 A. The Mandate Is Not Generally Applicable ............................................................23 B. The Mandate Is Not Neutral ..................................................................................29 III. THE SCHOOLS ARE ENTITLED TO SUMMARY JUDGMENT ON THEIR ESTABLISHMENT CLAUSE CLAIM. ...........................................................................31 IV. THE SCHOOLS ARE ENTITLED TO SUMMARY JUDGMENT ON THEIR FREE SPEECH CLAUSE CLAIM. ..................................................................................35 V. THE SCHOOLS ARE ENTITLED TO SUMMARY JUDGMENT ON THEIR DUE PROCESS CLAUSE CLAIM...................................................................................38 VI. THE SCHOOLS ARE ENTITLED TO SUMMARY JUDGMENT ON THEIR ADMINISTRATIVE PROCEDURE ACT CLAIMS. ......................................................39 A. Defendants Refused Meaningfully to Consider Objections Before the
Mandate Was Finalized .........................................................................................39 B. The Mandate Is Arbitrary and Capricious .............................................................42 C. The Mandate Is Contrary to Law. ..........................................................................44 CONCLUSION ..............................................................................................................................46
i

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TABLE OF AUTHORITIES
CASES
Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977)...........................................................................................................37
Blackhawk v. Pennsylvania, 381 F.3d 202 (3d Cir. 2004)...............................................................................................28
Braunfeld v. Brown, 366 U.S. 599 (1961)...........................................................................................................31
Canyon Ferry Rd. Baptist Church v. Unsworth, 556 F.3d 1021 (9th Cir. 2009) ...........................................................................................28
Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971).....................................................................................................42, 44
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)................................................................................................... passim
Colorado Christian Univ. v. Weaver, 534 F.3d 1245 (10th Cir. 2008) .........................................................................................32
Cutter v. Wilkinson, 544 U.S. 709 (2005)...........................................................................................................18
Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011) .........................................................................................7, 22
Emp’t Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872 (1990).....................................................................................................23, 27
FCC v. Fox Television Stations, Inc., 132 S. Ct. 2307 (2012) .......................................................................................................38
Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3rd Cir. 1999) .................................................................................23, 27, 29
Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S. of Am., Inc., 549 F.3d 1079 (7th Cir. 2008) .......................................................................................7, 22
Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418 (2006).......................................................................................................9, 18
Grand Canyon Air Tour Coalition v. F.A.A., 154 F.3d 455 (D.C. Cir. 1998) ...........................................................................................40 ii

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Grote v. Sebelius, 708 F.3d 850 (7th Cir. 2013) ...............................................................................................9
Hobby Lobby Stores, Inc. v. Sebelius, 2013 WL 3216103 (10th Cir. Jun. 27, 2013) (en banc) .......................................................9
Hurley v. Irish-Am. Gay, Lesbian, & Bisexual Grp. of Boston, 515 U.S. 557 (1995)...........................................................................................................35
Judge v. Quinn, 612 F.3d 537 (7th Cir. 2010) ...............................................................................................7
Korte v. Sebelius, 2012 WL 6757353 (7th Cir. Dec. 28, 2012) ........................................................................9
Knox v. Service Employees Intern. Union, 132 S. Ct. 2277 (2012) .......................................................................................................37
Larson v. Valente, 456 U.S. 228 (1982).........................................................................................30, 32, 33, 34
Mack v. O’Leary, 80 F.3d 1175 (7th Cir. 1996) .............................................................................................17
Medora v. Colautti, 602 F.2d 1149 (3d Cir. 1979).............................................................................................43
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983).............................................................................................................43
Nazareth Hosp. v. Sebelius, 2013 WL 1401778 (Apr. 8, 2013) ...............................................................................43, 44
NLRB v. Catholic Bishop, 440 U.S. 490 (1979).............................................................................................................5
Rader v. Johnston, 924 F. Supp. 1540 (D. Neb. 1996) .....................................................................................23
Rumsfeld v. Forum for Academic & Inst. Rights, Inc., 547 U.S. 47 (2006).............................................................................................................38
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998)...............................................................................................................8
Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707 (1981).....................................................................................................15, 42
iii

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Turner Broad. Sys., Inc. v. FCC, 512 U.S. 624 (1994)...........................................................................................................35
Tyndale House Publishers, Inc. v. Sebelius, 2012 WL 5817323 (D.D.C. Nov. 16, 2012) ......................................................................18
United States v. United Foods, 533 U.S. 405 (2001)...........................................................................................................37
United States v. Williams, 553 U.S. 285 (2008)...........................................................................................................38
Wilson v. NLRB, 920 F.2d 1282 (6th Cir. 1990) ...........................................................................................32
Wisconsin v. Yoder, 406 U.S. 205 (1972)...........................................................................................................15
Wooley v. Maynard, 430 U.S. 705 (1977)...........................................................................................................35
W. Va. State Bd. of Educ. v. Barnette 319 U.S. 624 (1943)...........................................................................................................35
STATUTES
5 U.S.C. § 553................................................................................................................................40 5 U.S.C. § 706(2) .........................................................................................................39, 40, 42, 44 20 U.S.C. § 1681(a)(3).....................................................................................................................5 26 U.S.C. § 4980D ...........................................................................................................................2 26 U.S.C. § 4980H .....................................................................................................................2, 26 26 U.S.C. § 5000A .........................................................................................................................26 26 U.S.C. § 6033(a) .....................................................................................6, 24, 28, 29, 32, 33, 34 42 U.S.C. § 300a-7(d) ....................................................................................................................46 42 U.S.C. § 300gg-13 ...............................................................................................................9, 27, 38 42 U.S.C. § 2000bb-1 ................................................................................................................9, 18 42 U.S.C. § 2000e-1(a) ..............................................................................................................5, 15 42 U.S.C. § 2000e-2(e)(2) ...............................................................................................................15
iv

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42 U.S.C. § 18023..........................................................................................................................44 42 U.S.C. § 18032(d)(3)(D) ...........................................................................................................39 PPACA § 1312(d)(3)(D)................................................................................................................39 Ind. Code § 22-9-1-3(h)(1)-(2) (2010) ............................................................................................5 745 Ill. Comp. Stat. 70/2 (1998) .....................................................................................................6
RULES AND REGULATIONS 75 Fed. Reg. 41,726 .......................................................................................................................40 76 Fed. Reg. 46,621 .................................................................................................................40, 41 76 Fed. Reg. 46,623 .................................................................................................................27, 40 78 Fed. Reg. 8,456 ...................................................................................................................25, 29 78 Fed. Reg. 39,870............................................................................................... 6, 24, 25, 29, 36, 43 26 C.F.R. § 1.6033 ...............................................................................................................1, 15, 16 26 C.F.R. § 1.6033–2 .........................................................................................................25, 26, 33 26 C.F.R. § 54.9815 .......................................................................................................................36 29 C.F.R § 2510 ............................................................................................................................36 29 C.F.R § 2590.715 .....................................................................................................................36 34 C.F.R. § 106.12(a).......................................................................................................................5 45 C.F.R. § 147.131(a).....................................................................................................................6 45 C.F.R. § 147.130 .......................................................................................................................27 Treas. Reg. § 1.6033-2 .....................................................................................................................6
LEGISLATIVE MATERIAL Public Law 112-74, § 507(d)(1), 125 Stat 786, 1111 (Dec. 23, 2011) ..........................................45
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FEDERAL RULES OF CIVIL PROCEDURE Fed. R. Civ. P. 12(b) ........................................................................................................................8 Fed. R. Civ. P. 56(a) ........................................................................................................................8
MISCELLANEOUS Church Alliance, Comment on Notice of Proposed Rulemaking (April 8, 2013) ...................30, 34 Cooper, Helene & Goodstein, Laurie, “Rule Shift on Birth Control Is Concession to
Obama Allies,” (Feb. 10, 2012) .........................................................................................30 Dorland’s Illustrated Medical Dictionary 31st Ed. (2007) ............................................................45 “Fact Sheet: Keeping the Health Plan You Have: The Affordable Care Act and ‘Grandfathered’
Health Plans,” HealthReform.gov............................................................................................ 24, 28 Finer, Lawrence B. & Zolna, Mia R., Unintended Pregnancy in the United States,
84 CONTRACEPTION 478 (2011) .........................................................................................19 Gaffney, Edward McGlynn, Jr., Governmental Definition of Religion: The Rise and Fall
of the IRS Regulations on an “Integrated Auxiliary of a Church,” 25 VAL. U.L. REV. 203, 211-16 (1991)........................................................................29, 34 Hudman, Julie & O’Malley, Molly, Kaiser Comm’n on Medicaid & the Uninsured, Health Insurance Premiums and Cost-Sharing: Findings from the Research on Low-Income Populations (Mar. 2003) ..............................................................................20 IRS Notice 2013-45, July 9, 2013..................................................................................................39 Matt. 26:47-50................................................................................................................................13 Mosby’s Medical Dictionary 7th Ed. (2006) .................................................................................45 National Campaign to Prevent Teen & Unplanned Pregnancy, Unplanned Pregnancy in the United States, ..............................................................................................................19 National Conf. of State Legislatures, Insurance Coverage for Contraceptive Laws, ...................21 OPM BAL 13-207, September 30, 2013 .......................................................................................39 Rom. 16:16.....................................................................................................................................13 Stedman’s Medical Dictionary 28th Ed. (2006) ............................................................................45 Strategic Pharma Solutions, Contraception in America: Unmet Needs Survey............................21
vi

case 3:12-cv-00459-JD-CAN document 70 filed 10/11/13 page 8 of 56 Trussell, James & Raymond, Elizabeth G., Emergency Contraception: A Last Chance to
Prevent Unintended Pregnancy, ...................................................................................4, 19 United States Conference of Catholic Bishops, Comment on Notice of Proposed
Rulemaking (April 8, 2013) ...............................................................................................34
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INTRODUCTION
The Schools are religious institutions that were created for religious reasons, hold religious beliefs, are comprised of religious people, and pursue religious objectives. Am. Compl., DE 54, ¶ 21-23, 52-53. Among those religious beliefs is the conviction that human beings are uniquely created in the image of God, and thus have special dignity and are entitled to special protection. Am. Compl., DE 54, ¶ 37, 65. The Schools believe, as a matter of religious commitment, that this dignity and entitlement to special protection arises at the moment of conception. Am. Compl., DE 54, ¶ 32, 65. They believe that violating the special dignity of God’s unique image bearers is a grave sin that disrupts their communities’ relationship with God Himself and risks God’s judgment. Am. Compl., DE 54, ¶ 34, 66.
Those beliefs translate into positive actions and the avoidance of certain behaviors. First, positive actions: they draw the members of their community from among those who hold and live out their shared religious convictions. This community includes students, faculty, and staff. Am. Compl., DE 54, ¶ 28-29; see also Am. Compl., DE 54, ¶ 66-67. The community holds a collective desire to glorify God through all it believes, says, and does. The Schools nurture and foster this community, encouraging obedience to their understanding of God’s laws and responding to disobedience to those same laws. The Schools draw their members from among those who share their beliefs about the sanctity of life. Am. Compl., DE 54, ¶ 36-37, 66-67. The Schools “enforce” those beliefs in a variety of ways. They strive to ensure that their students, faculty, and staff embrace, maintain, and live out their shared religious commitment to the sanctity of human life. Am. Compl., DE 54, ¶ 29, 36-37, 66-67.
Second, avoidance of certain behaviors: the Schools seek to avoid participation in or facilitation of transgressions of their understanding of God’s law, including His law about the dignity and value of human life. Among other things, they structure their student and employee health insurance plans to avoid participating in violations of God’s law of life and to foster
1

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behavior among members of the community that is consistent with the community’s religious values. Am. Compl., DE 54, ¶ 43, 46, 50, 68, 72-76.
The Mandate dramatically undermines the Schools’ freedom to live out their religious beliefs in these two ways: avoiding violations of God’s law, and fostering community commitment to and compliance with that law. The Schools believe that compliance with the Mandate would constitute sinful facilitation of immoral behavior and would thus be sinful and immoral in itself. And compliance with the Mandate would undermine their freedom to foster a community that shares and strives to live out a set of foundational and definitional religious commitments. Obeying the Mandate would seriously undermine their religiously-based educational mission and encourage disobedience to shared religious convictions.
The government is imposing enormous pressure on the Schools to comply with the Mandate and thus violate their religious convictions and undermine their fostering of their religious communities. The price for compliance is enormous and unsustainable. If the Schools continue their present course of action once the Mandate goes into effect (i.e., offer health insurance that excludes abortifacients), they will face fines of $100 per employee per day. See 26 U.S.C. § 4980D(b). For Biola, this would be $31,244,000, annually. See Am. Compl. , DE 54, ¶ 71. For Grace, this would be $16,680,500 annually. Am. Compl., DE 54, ¶ 31, 45. If they avoided the Mandate by dropping employee health insurance altogether, they would face fines of $2000 per employee per year, minus 30. See 26 U.S.C. § 4980H(a), (c)(1). For Biola, this would be $1,652,000 annually. For Grace, this would be $854,000 annually. In both scenarios, they would also face liability under ERISA. Regarding the student plans they facilitate, the Schools would be forced to choose between (a) compliance; (b) violation and fines; and (c) stopping the facilitation of a student plan. Given that the School believes that the facilitation of student health coverage is an exercise of its religious beliefs, options (a) and (c) are both unacceptable. Following their religious convictions (option (b)) would subject them to fines, thereby pressuring them to choose a course of action that contradicts their religious convictions.
2

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Forcing the Schools to comply with the Mandate is not the least restrictive means of furthering any compelling governmental interest. The government claims that the Mandate furthers public health (specifically, the adverse health consequences associated with unintended pregnancy) and equality of the sexes. RFRA, the Free Exercise Clause, and their interpretive case law indicate that this Court should analyze not only whether “public health” and “women’s equality” are “compelling” interests in the abstract, but also whether requiring the Schools to facilitate access to abortifacients advances these goals to such a degree that the interests might be said to be compelling. The answer is no. Defendants, remarkably, ignore the relatively narrow scope of the Schools’ objection, arguing as though the Schools object to providing or facilitating access to all the drugs, devices, and services required by the HHS Mandate. Yet, the Schools are willing to include in their health plans virtually everything required by Defendants, including “conventional” birth control pills, sterilization, and related counseling. They simply object to emergency contraceptives that can act as abortifacients by preventing implantation of the very young human in the uterine wall.1 The narrow scope of their objection fatally undermines the government’s contention that applying the Mandate to the Schools furthers any compelling interest. All the alleged benefits of (a) the preventive services mandate generally and (b) the Mandate to provide conventional contraceptives and sterilization – on which the government exclusively relies to justify its burden on the Schools – are irrelevant. The question is whether forcing them to facilitate free access to abortifacients to their employees and students sufficiently advances some compelling interest to justify the burden on the Schools’ religious exercise.
The answer is no. According to the government, the Mandate is designed to reduce the incidence of unintended pregnancy and thereby reduce the incidence of adverse health consequences that allegedly accompany pregnancies that are unintended. The questions, then, are (a) whether (and to what extent) free access to abortifacients, particularly emergency
1 The ongoing semantic debate about whether “pregnancy” begins at conception or implantation is utterly irrelevant to this Court’s assessment of the substantiality of the burden on the Schools’ religious exercise, where Plaintiffs believe that human life begins at conception and that such life deserves protection from that moment forward. In short, the outcome of the semantic debate does not dictate the answer to the moral question.
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contraceptives, reduces the incidence of unintended pregnancy in general; and (b) whether (and to what extent) forcing the Schools to facilitate free access to abortifacients will reduce unintended pregnancies among the Schools’ students and employees. Studies prove that free access to emergency contraceptives does not reduce the incidence of unintended pregnancy (and thus the adverse health events allegedly associated with those pregnancies).2
Forcing these Schools to facilitate access to abortifacients is particularly unjustified in light of the nature of their workforces and student bodies. Both Schools draw members of their communities from among those who share their religious commitments, including their religious belief in the dignity of human life, the sinfulness of using abortifacients, and the immorality of premarital and extramarital sexual behavior (which are more likely to produce “unintended” pregnancies). Members of the Schools’ communities consistently obey these moral norms. And the government cannot plausibly argue it has any interest in encouraging disobedience to these norms among members of the Schools’ communities. Women with reproductive capacity at the Schools are far less likely to experience unintended pregnancies – the primarily evil the Mandate claims to eliminate – and thus any power the government’s arguments about the justifications for the Mandate more generally might have is greatly diminished.
The government’s equality argument rests in part on the assertion that women tend to pay more for preventive health care than do men. The relevant question in this case is not whether the Section 1001(a)(4) of the ACA “evens out” preventive care expenses in general, but rather whether the inability of female employees and students at Grace and Biola to obtain abortifacients for free seriously undermines their ability to participate equally in the economic realm. The answer is plainly no. First, as discussed above, it is comparatively unlikely that these women will find themselves in situations where the use of an emergency contraceptive is indicated. Second, even if they did, these women have expressed their commitment to the
2 James Trussell & Elizabeth G. Raymond, Emergency Contraception: A Last Chance to Prevent Unintended Pregnancy, available at http://ec.princeton.edu/questions/ec-review.pdf, at 15 (last visited Oct. 11, 2013) (“no published study has yet demonstrated that increasing access to ECPs [emergency contraceptives] reduces pregnancy or abortion rates in a population”).
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sanctity of human life and believe that the use of such drugs and devices is sinful. Declaration of Wanda Bollman, ¶¶ 6-7; Declaration of Tonya Lee Fawcett, ¶¶ 6-7; Declaration of Lisa Harman, ¶¶ 6-7; Declaration of Dee Anna Muraski, ¶¶ 6-7; Declaration of Arielle Peters, ¶¶ 6-7; Declaration of Sarah Prater, ¶¶ 6-7; Declaration of Alison Arcadi, ¶¶ 6-7; Declaration of Ketha Boespflug, ¶¶ 6-7; Declaration of Cynthia Cole, ¶¶ 6-7; Declaration of Alanna Godoy, ¶¶ 6-7; Declaration of Wendy Walker, ¶¶ 6-7. Accordingly, representative members of the Schools’ communities have explicitly declared that they will not use and do not want coverage for these drugs and devices. Bowman Decl., ¶¶ 8-9; Declaration of Steve Carlson, ¶¶ 8-9; Fawcett Decl., ¶¶ 8-9; Declaration of John French, ¶ 8; Harman Decl., ¶¶ 8-9; Muraski Decl., ¶ 8; Peters Decl., ¶ 8; Prater Decl., ¶ 8; Declaration of David Swain, ¶ 8; Declaration of Peter Wolff, ¶ 8; Arcadi Decl., ¶¶ 8-9; Boespflug Decl., ¶ 8; Cole Decl., ¶ 8; Godoy Decl., ¶ 8; Declaration of Chris Grace, ¶¶ 8-9; Declaration of Ronald Mooradian, ¶ 7; Declaration of Scott Rae, ¶ 8; Walker Decl., ¶¶ 8-9. Third, it can hardly be said that the equal status of the Schools’ women of reproductive capacity hinges upon whether they can avoid paying, at most, about $55 for a box of ella or Plan B – an expense that is customarily incurred, if ever, only once or twice in a lifetime. And, if it is truly necessary for the government to make abortifacient drugs available “for free” to members of the Schools’ communities, there are other ways it could accomplish this objective that are less burdensome to the Schools’ religious exercise.
To make matters worse, the government’s refusal to extend the religious exemption to the Schools is, in light of the rationale for that exemption, indefensible. The extraordinarily narrow religious exemption – which is far stingier than the exemptions in Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e-1(a); Title IX of the Education Amendments of 1972, 20 U.S.C. §1681(a)(3) and 34 C.F.R. §106.12(a); the judicially established exemption from the National Labor Relations Act, see NLRB v. Catholic Bishop, 440 U.S. 490 (1979) (holding that churchoperated schools are exempt from the NLRA); virtually all state law bans on religious and sexual orientation discrimination in employment, see, e.g., Ind. Code § 22-9-1-3(h)(1)-(2) (2010) (exempting “(1) any nonprofit corporation or association organized exclusively for fraternal or
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case 3:12-cv-00459-JD-CAN document 70 filed 10/11/13 page 14 of 56
religious purposes; (2) any school, educational, or charitable religious institution owned or
conducted by or affiliated with a church or religious institution” from the discrimination
prohibitions in Indiana’s Civil Rights Law); and the overwhelming majority of state
contraceptive mandates, see, e.g., 745 Ill. Comp. Stat. 70/2 (1998) (protecting the right of
conscience for those who believe the provision of certain health services is morally
unacceptable)– is available only to “an organization that is organized and operates as a nonprofit
entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code.” 45 C.F.R. § 147.131(a). Those Code sections refer to “churches, their integrated auxiliaries,3 and
conventions or associations or churches” and “the exclusively religious activities of any religious
order.” 26 U.S.C. § 6033(a)(3)(A)(i) and (iii). Congress devised this category of organizations
in a context utterly unrelated to the one here; these entities are exempt from filing with the IRS
the informational returns (Form 990s) that most non-profits must file. The government
rationalizes this narrow exemption as follows:
The Departments believe that the simplified and clarified definition of religious employer continues to respect the religious interests of houses of worship and their integrated auxiliaries in a way that does not undermine the governmental interests furthered by the contraceptive coverage requirement. Houses of worship and their integrated auxiliaries that object to contraceptive coverage on religious grounds are more likely than other employers to employ people of the same faith who share the same objection, and who would therefore be less likely than other people to use contraceptive services even if such services were covered under the plan. “Coverage of Certain Preventive Services Under the Affordable Care Act,” 78 Fed. Reg. 39,870,
39,874 (July 2, 2013). In essence, the government is conceding that the Mandate does not
3 Treas. Reg. § 1.6033-2(a), (g), and (h). For an entity to be an integrated auxiliary, it must be “[a]ffiliated with a church or a convention or association of churches” and be “[i]nternally supported.” Id. § 1.6033-2(h)(ii) and (iii). The Schools are apparently ineligible for integrated auxiliary status, and thus for the Mandate’s exemption, primarily because they receive the majority of their revenue from “external” sources (i.e., tuition paid by students and their families) rather than an “internal” one (i.e., an affiliated church). Notably, the “internal support” requirement does not apply to seminaries. Id. § 1.6033-2(h)(5). Both Grace and Biola operate seminaries. If these seminaries were separate entities, they would be integrated auxiliaries (assuming the IRS deemed them sufficiently related to a church) and thus exempt from the HHS Mandate. It is arbitrary and irrational for the incidental decision of the Schools and their seminaries about their relational structure to determine the seminaries’ eligibility for an exemption from the HHS Mandate.
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advance any compelling interest when applied to employers who employ employees who share their religious conviction – a category that includes the Schools.4 Denying them the exemption is thus arbitrary, capricious, irrational, unjustified, and discriminatory. They are denied the exemption’s protection, simply because they are not structured as integrated auxiliaries to denominations. Discriminating against them because of incidental religious structural choices cannot survive scrutiny under either the Establishment Clause or the Administrative Procedure Act.
STANDARD OF REVIEW The Schools move for summary judgment and oppose Defendants’ motion for summary judgment. A party is entitled to summary judgment where the evidence demonstrates “that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). This memorandum also constitutes the Schools’ reply to Defendants’ opposition to their motion for preliminary injunction. Parties seeking preliminary injunctions must establish that they have “(1) no adequate remedy at law and will suffer irreparable harm if a preliminary injunction is denied and (2) some likelihood of success on the merits.” Ezell v. City of Chicago, 651 F.3d 684, 694 (7th Cir. 2011). Once these threshold requirements are met, the court balances each party’s likelihood of success against the potential harms. Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S. of Am., Inc., 549 F.3d 1079, 1100 (7th Cir. 2008). These considerations operate on a sliding scale, where “the greater the likelihood of success on the merits, the less net harm the injunction must prevent in order for preliminary relief to be warranted.” Judge v. Quinn, 612 F.3d 537, 546 (7th Cir. 2010).
4 It bears noting that the Schools are not unique in this regard. The over 100 United States members of the Council for Christian Colleges and Universities all draw their faculty and staff from among those who share their religious convictions. See http://www.cccu.org/about/profile (last visited Oct. 11, 2013). Yet, upon information and belief, none of them are “integrated auxiliaries” of denominations, and are thus denied the protection of the exemption, despite possessing the very attribute that the government itself says justifies the exemption. The Council submitted a comment on the Notice of Proposed Rulemaking making this very point, as did the Schools and numerous others. See http://www.cccu.org/news/articles/2013/CCCU-Responds-to-NPRM-Continues-Constitutional-Objection-toHHS-Contraceptive-Mandate (last visited Oct. 11, 2013). The government apparently ignored or was unmoved by these comments, refusing to make the exemption “fit” the government’s own stated rationale.
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case 3:12-cv-00459-JD-CAN document 70 filed 10/11/13 page 16 of 56 Finally, the Schools oppose Defendants’ motion to dismiss under Rule 12(b)(6) and 12(b)(1). For purposes of Rule 12(b)(6), the court must accept as true the factual allegations in the Schools’ complaint. Under Rule 12(b)(1), “jurisdiction must be established as a threshold matter,” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998), and in making such a determination the court “must presume that the general allegations in the complaint encompass the specific facts necessary to support those allegations.” Id. at 104.
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ARGUMENT I. THE SCHOOLS ARE ENTITLED TO A PRELIMINARY INJUNCTION AND
SUMMARY JUDGMENT ON THEIR RFRA CLAIM. A. The Mandate Substantially Burdens the Schools’ Religious Exercise. The Religious Freedom Restoration Act forbids the federal government from substantially burdening a person’s exercise of religion unless the government demonstrates that application of the burden to the person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. § 2000bb-1; Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418, 423 (2006). In assessing whether the Mandate substantially burdens the Schools’ religious exercise, thereby triggering strict scrutiny, it is essential to: (1) identify the religious exercise in question; and (2) identify exactly what the government is doing with respect to that exercise. See, e.g., Hobby Lobby Stores, Inc. v. Sebelius, No. 12-6294, 2013 WL 3216103, at *20 (10th Cir. June 27, 2013) (en banc).
1. The religious exercise(s) in question Three “exercises of religion” are at the heart of this case. Two are affirmative pursuits of religious objectives; the third is avoidance of conduct contrary to their beliefs. First, the Schools affirmatively live out their religious belief in the dignity of human life by making available to members of their communities health insurance coverage that reflects the communities’ shared pro-life beliefs. Second, they create and foster an academic community that encourages its members (faculty, staff, and students) to grow in spiritual maturity through obedience to God’s commands, including His commands about the value of human life. Third, the Schools seek to avoid facilitating sinful behavior, thereby engaging in immoral conduct themselves. See Korte v. Sebelius, 2012 WL 6757353, at *3 (7th Cir. 2012) (holding that for-profit company exercises religion when it excludes morally objectionable items from its employee health plan); Grote v. Sebelius, 708 F.3d 850, 854 (7th Cir. 2013) (same).
2. What the government is doing with respect to those “exercises”
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Through the Mandate, Defendants interfere with each of these three “exercises of religion.” First, Defendants have made it untenable, to put it mildly, for the Schools to provide employee and student health insurance that correlates with their pro-life beliefs. Left free to exercise their religion in the health insurance context, their plans would ensure access to everything the Affordable Care Act and the HHS Mandate require (including non-abortifacient contraceptives) other than abortifacients like ella and Plan B. Participation in their plans would not trigger the “free” availability of embryo-destroying drugs and devices to members of their communities. Because of the Mandate, however, insurance issuers will sell the Schools plans that either (a) expressly include abortifacients; or (b) functionally include abortifacients by guaranteeing separate payments for them upon the school’s execution of a self-certification. Under the Mandate, the Schools may either (a) set up a self-insured plan that includes abortifacients; or (b) set up a self-insured plan that functionally includes abortifacients by guaranteeing separate payments for them upon the school’s execution of a self-certification. If they fail to do either of these, and instead create a self-insurance plan that does not facilitate the availability of abortifacients, they will face fines of $100 per beneficiary per day. In the case of Grace, this is $16,680,500 annually; for Biola, this is $31,244,000 each year.
Defendants have also made it impossible, as a practical matter, to avoid facilitating the use of abortifacients by dropping employee health insurance altogether (something that would transgress their religious convictions in its own right). The financial penalty for such a move is $2,000 per employee per year after the first 30 employees. This is $854,000 for Grace and $1,652,000 for Biola.
Because Defendants have left the Schools without the option of fulfilling their religious convictions by providing health insurance that does not facilitate access to abortifacients (or of dropping employee health insurance altogether), they are forced to provide health insurance that does facilitate that access. This significantly interferes with the Schools’ other two “exercises of religion.” First, it directly and significantly interferes with their ability to make and enforce religiously-rooted rules of conduct applicable to their employees and students, all of whom
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voluntarily joined their respective communities. It directly and significantly interferes with their ability effectively to communicate their pro-life message to their students, faculty, staff, and the broader community. It directly and significantly interferes with their pursuit of their mission to grow the spiritual maturity of members of their community by fostering obedience to and love for God’s laws.
Second, it forces them to engage in behavior that violates their religious convictions. Either complying with the Mandate as originally written or complying with it by executing a self-certification that ensures the same result (i.e., free access for members of their community to abortifacients as a consequence of their employment with them) is, in the eyes of the School, sinful and immoral. The Schools believe that sin adversely affects their relationship with God. Although the shape and magnitude of this adverse effect cannot be predicted or calculated, the Schools nonetheless believe it is quite real, and to be avoided.
3. Defendants misunderstand and thus mischaracterize the Schools’ religious exercise(s) and the Mandate’s impact on those exercises.
On their way to arguing that the Mandate does not “substantially burden” the Schools’ religious exercise, Defendants express a deeply erroneous understanding of both (a) the identity of the Schools’ religious exercise; and (b) how the Mandate affects that exercise.
Regarding the identity of the Schools’ exercises of religion, Defendants focus exclusively on the question whether they are forcing the Schools to do something forbidden by their religious beliefs, not comprehending that the Schools also “exercise religion” by creating and sustaining an academic community committed to certain shared religious convictions, including convictions about the morality of abortifacient use. In short, Defendants fail to understand that RFRA protects not only “freedom from,” but also “freedom to.” Of course, their failure in this regard means that they do not even discuss how the Mandate burdens the Schools’ “freedom to” shape their communities and transform the spiritual lives of their members – except, apparently, to deny the existence or impugn the exercise of such a freedom. (Defs.’ Br. at 2) (indignantly suggesting that it is “extraordinary” for a religious School to want to avoid helping the co-
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religionist members of its voluntary religious community to transgress religiously-based community ethical standards); (id. at 12).5
Defendants also have a remarkably cramped vision of how their actions pressure the Schools to undertake actions that transgress their religious convictions. Again, they focus exclusively on the act of executing the self-certification. Defs.’ Br. at 11-12. (And they identify things the Schools are allegedly not required to do, as if identifying arguably worse things renders the thing in question unobjectionable. Id.) They ignore the context of the selfcertification; the Schools must either provide insurance to their employees or face enormous fines. The Schools’ decisions to provide employee health insurance inevitably cause the provision of free abortifacients to the Schools’ employees. Every time the Schools hire an individual, they know that the individual (and perhaps his or her family as well) will gain access to abortifacients, because of his or her status as a School employee. And that access will be provided by the Schools’ own insurer or third-party administrator.
Defendants contend that executing the self-certification is essentially no different than actions the Schools took prior to the existence of the Mandate. Defs.’ Br. at 11-12. More specifically, they observe that, prior to the existence of the Mandate, the Schools informed their insurer or third-party administrator that they did not want coverage of abortifacients, and claim that executing the self-certification is no different. This is a remarkable contention. Defendants are essentially arguing that the moral significance of an act is completely detached from the consequences of that act. To Defendants, it matters not that the consequence of the Schools’ prior practice (telling their insurer or third-party administrator not to provide abortifacients) was members of their communities not obtaining access to life-destroying drugs and devices, whereas the consequence of executing the self-certification is exactly the opposite. To contend that these two actions are the same, particularly when the claim is that the coerced conduct violates
5 See section I.A.4 infra for a discussion of the Schools’ freedom to set and enforce conduct standards for members of their voluntary religious communities and of the Mandate’s interference with the exercise of that freedom.
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conscience, is astonishing.6 That the two actions might be said, in a willfully truncated assessment of their significance, to bear some superficial resemblance hardly means that Defendants have not coerced the Schools into “modifying their behavior.”
4. How the Mandate actually burdens the Schools’ religious exercise(s) As noted above, the Mandate burdens the Schools’ religious exercise by coercing them to take action they believe to be sinful and immoral, and by interfering with their freedom to foster voluntary communities that encourage spiritual maturity through compliance with shared ethical commitments rooted in religious conviction. As to the first of these ways Defendants burden the Schools’ religious exercise, the Schools will transgress their understanding of God’s laws by providing health insurance to their employees and students that gives them guaranteed payments for drugs and devices that take human life. In short, by complying they will sin. Professor Scott Rae, Dean of the Faculty and Professor of Christian Ethics at Biola’s Talbot School of Theology, declared that complying with the Mandate, even with its so-called “accommodation,” would be unethical “because it puts the university in the position of facilitating the provision of these medications, which, when taken as designed, produce an outcome that we believe constitutes sin. The university’s complicity in this accommodation is just as problematic as providing these services ourselves.”7 Declaration of Scott Rae, ¶ 8. And non-compliance, either through dropping employee and/or student coverage, or by continuing their current coverages (which exclude abortifacients), is not possible, either financially or ethically.
6 In the New Testament, Jesus and His followers often greeted one another with a kiss, as was the custom at the time. See, e.g., Rom. 16:16. It is reasonable to assume that, at some point, Judas Iscariot greeted Jesus with such a kiss. Later, of course, Judas betrayed Jesus with a kiss, identifying for the armed crowd sent by the chief priests and the elders of the people the man they ought to arrest. Matt. 26:47-50. Could one plausibly contend that these two superficially identical acts bore the same moral significance? 7 The government’s contention that the burden on the Schools’ religious exercise is “too attenuated,” Defs. Br. at 1720, is, for all intents and purposes, simply a disguised rejection of the Schools’ ethical determination that doing a sinful act, paying for a sinful act, and otherwise facilitating a sinful act are all on the wrong side of a religiously drawn moral line. The government seems to be suggesting that as long as it can identify something worse it might do to the Schools, the thing it is actually doing cannot be deemed a burden on their religious exercise.
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As discussed above, the Schools not only want to avoid committing sin, but also want to foster the spiritual maturity of members of their communities, faculty, staff, and students alike. Christian conviction—including respect for the dignity and worth of human life from the moment of conception—is a qualification for entry into their communities. (Am. Compl., DE 54, ¶¶ 27, 28, 29, 56.) And, it bears noting, faculty, staff, and students all voluntarily join these communities. Indeed, the Biola and Grace communities are comprised of individuals who affirmatively want to be part of a community that reflects and reinforces their Christian commitments, including their respect for unborn human life. As educational institutions, they explicitly aim to transform the lives of their students. (Am. Compl., DE 54, ¶¶ 21, 22, 53, 55.) This objective is pursued, in part, through faculty and staff modeling behaviors that bring glory to God. (Am. Compl., DE 54, ¶¶ 23, 28, 36, 37, 55, 56, 58, 59, 66, 67.)
Foisting unwanted access to free abortifacients upon the Schools’ employees, their families, and students tangibly interferes with this key component of the Schools’ missions. “Biola believes that integrity and authenticity should be hallmarks of every believer.” (Am. Compl., DE 54, ¶ 59.) Facilitating free access to abortifacients while simultaneously trying to foster a pro-life ethic lacks integrity; and doing the former undermines the latter. The “fig leaf” of the accommodation is just that; a cosmetic, but ultimately unsuccessful, effort to cover over the underlying ethical problem. An institution like Grace, for example, cannot out of one side of its mouth say “those who live and work at the institution . . . are expected to respect and uphold life-affirming practices” (Statement of Community Lifestyle, incorporated into applications for employment) and then out of the other side say “the health insurance we are providing you as compensation for your services gives you free access to abortifacients.” It is wrong and unjust for the government to interfere in this manner with the Schools’ religious educational mission; in the language of the Religious Freedom Restoration Act, this interference “substantially burdens” the Schools’ religious exercise.
5. The burden is “substantial” under RFRA
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Defendants’ argument that the Mandate’s burden on the Schools’ religious exercise is not “substantial” turns mostly on their misunderstanding or mischaracterization of (a) the Schools’ religious exercise; and (b) the identity and character of the burden. Accordingly, accurately identifying the Schools’ exercises of religion and the character of the Mandate’s interference with those exercises goes a long way towards addressing the government’s contentions. However, there is a few aspects of Defendants’ argument that merits a further response.
First, Defendants observe that the self-certification “should take plaintiffs a matter of minutes.” (Defs. Br. at 14). Of course, the Schools do not disagree; yet, the number of minutes it takes to execute an action hardly is the sole (or even main) criterion for assessing whether the government is substantially burdening religious liberty. The Schools’ ethical conclusion is that sponsoring health plans that grant access to abortifacients is sinful. Many sins can be committed quickly. That hardly means government is free to coerce the commission of such sins. Instead, a government regulation that “put[s] substantial pressure on an adherent to modify his behavior and violate his beliefs” substantially burdens his religious exercise. Thomas v. Review Bd., 450 U.S. 707, 716-18 (1981). See also Wisconsin v. Yoder, 406 U.S. 205, 218 (1972).
Second, Defendants ascribe to Plaintiffs a conception of “substantial burden” they do not hold. They claim that the Schools’ argument “rests on an unprecedented and sweeping theory of what it means for religious exercise to be burdened” under which “plaintiffs would . . . prevent anyone else from providing such coverage to their employees.”8 This overstates the Schools’ position. To be sure, they would object to any scheme that conscripts them into serving as an
8 The remainder of the quoted sentence asserts that the Schools’ employees “might not subscribe to plaintiffs’ religious beliefs.” (Defs.’ Br. at 12.) This is incorrect; sharing the Schools’ religious convictions is a pre-requisite to initial and continuing employment with the Schools. As evidenced by the 21 declarations filed in support of Plaintiffs’ Cross-Motion for Summary Judgment, the Schools’ employees wholeheartedly share their pro-life beliefs and their objection to the government coercively attaching its scheme for facilitating abortifacient access to their employee health plans. Defendants plainly misunderstand both the nature of the Schools’ religious communities and the scope of the freedom the Schools have to foster the religious character of those communities. Later in their brief, Defendants indignantly declare that “an employer has no right to control the choices of its employees, who may not share its religious beliefs, when making use of their benefits.” Aside from the factual inaccuracy of the government’s assumption about the Schools’ employees, it is false as a matter of law to contend that religious employers may not impose religiously-rooted behavioral expectations on the employees who voluntarily join their religious communities. See, e.g., 42 U.S.C. § 2000e-1(a); id. at § 2000e-2(e)(2).
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essential cog in the government’s mechanism. But they do not believe that RFRA prevents the government from giving their employees and/or students free abortifacients; if the Schools are not involved, their religious exercise is not burdened.
To illustrate the point, suppose that the government gave all religious employers, including the Schools, an exemption from the Mandate. Employers need not apply for the exemption or otherwise inform the government that they object to providing morally objectionable drugs, devices, procedures, and services. Like the religious exemption from Title VII’s ban on religious discrimination, individual entities determine for themselves whether they possess the exemption, running the risk a court or other adjudicator will disagree. Suppose further that the U.S. Department of Health and Human Services, under this scenario, learns that Biola and Grace consider themselves exempt and therefore have declined to included abortifacients in their employee and student plans. The Department then undertakes an effort to identify the Schools’ employees and students and offer them free abortifacients. The “substantial burden” argument the Schools are actually making does not require the Court to conclude that the Department is substantially burdening religious exercise in the imagined hypothetical.
Relatedly, the government seems to be convinced that the only way it can enhance access to abortifacients for the Schools’ employees and students is to somehow conscript the Schools into their scheme. (Defs.’ Br. at 14.) However, Defendants fail to explain why this must be so. There is no reason why abortifacients must be provided in connection with employer-based or school-based health plans; governments provide benefits without involving beneficiaries’ employers all the time. Administrative convenience hardly justifies conscripting unwilling employers into the government’s scheme, where involvement in that scheme violates their consciences and undermines their religious educational communities.
The Mandate undoubtedly imposes a “substantial burden” upon the Schools’ religious exercise under the test set forth by the Seventh Circuit: “a substantial burden on the free exercise of religion, within the meaning of the [Religious Freedom Restoration] Act, is one that forces adherents of a religion to refrain from religiously motivated conduct, inhibits or constrains
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conduct or expression that manifests a central tenet of a person’s religious beliefs, or compels conduct or expression that is contrary to those beliefs.” Mack v. O’Leary, 80 F.3d 1175, 1179 (7th Cir. 1996), vacated on other grounds, 522 U.S. 801 (1997). The Mandate does all these things to the Schools, and thus substantially burdens their religious exercise.
B. The Mandate Is Not the Least Restrictive Means of Advancing Any Compelling Governmental Interest.
Forcing the Schools to facilitate access to abortifacients for their students, employees, and their families is not the least restrictive means of advancing any compelling interest. In explaining the rationale for the religious exemption from the Mandate, Defendants concede that forcing employers whose employees are likely to share their religious convictions does not advance the Mandate’s stated interests.9 (Defs.’ Br. at 26; 78 Fed. Reg. 39,874.) Grace and Biola are such employers. Their employees (and students) share their religious convictions, including their convictions regarding the dignity of human life and the immorality of abortifacient use. More concretely, multiple employees declared that they believe that the use of abortifacients is sinful and that they would not engage in such use. See, e.g., Declaration of Alanna Godoy, ¶ 6, 7 (“I believe, as a matter of Christian conviction, that using abortifacient drugs and devices like ella and Plan B is sinful and immoral. I would not use abortifacients.”) They further revealed that there is no detectible desire among their co-workers for free abortifacients. See, e.g., Declaration of Alison Arcadi, ¶ 12 (“I am unaware of any instance in which a Biola employee or student ever complained that the employee or student plan excluded abortifacients.”); Declaration of Dee Anna Muraski, ¶ 10 (“No employee or student has ever expressed to me a desire that these drugs and devices be added to Grace’s plans.”); Declaration of Sarah Prater, ¶ 13 (“I am not aware of a single employee that rejects [Grace College’s] pro-life beliefs.”)
9 By exempting even a narrow category of religious employers, Defendants cast serious doubt on their contention (Defs.’ Br. at 17-20) that the Mandate substantially burdens no one’s religious exercise (whether “accommodated” or not) because the connection between the employer’s role and the use of morally objectionable drugs, devices, and services is “too attenuated.” In other words, if Defendants themselves took such a contention seriously, they would not have exempted anyone, even churches and religious orders.
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This undisputed reality—that the Schools’ students and employees are unlikely to use the abortifacients to which the Schools object—conclusively proves by itself that Defendants have no interest in imposing the Mandate on Grace or Biola, even if they might have an interest in imposing the Mandate upon other employers. And RFRA requires the government to prove that the “application of the burden to the person” satisfies strict scrutiny. 42 U.S.C. § 2000bb-1(b) (emphasis added).10 See also O Centro, 546 U.S. at 430-31; Tyndale House Publishers, Inc. v. Sebelius, No. 12-1635, 2012 WL 5817323, at *15 (D.D.C. Nov. 16, 2012). For this reason alone, Defendants cannot satisfy strict scrutiny, and therefore both a preliminary injunction and summary judgment in the Schools’ favor is warranted.
Additional reasons reveal that applying the Mandate to the Schools is not the least restrictive means of furthering a compelling governmental interest. Defendants invoke the benefits of preventive services in general and of making access to those services cost-free. (Defs. Br. at 20-22.) However, the Schools are not objecting to “preventive services” in general. Indeed, they are not even objecting to “conventional” birth control pills or sterilization, free access to which Defendants contend will reduce the rate of unintended pregnancy and thus the adverse health effects associated with such pregnancies. Instead, they object to a relatively small sub-class of drugs and devices the Food and Drug Administration has labeled “contraceptives” but that can act abortifaciently by destroying very young human life in the womb.
Given this, the relevant question is whether making abortifacients available to the Schools’ employees, their families, and students sufficiently advances the stated goal of reducing the adverse health effects associated with unintended pregnancies. The answer is no. Princeton University maintains an Office of Population Research. Dr. James Trussell, a Professor of Economics and Public Affairs at Princeton and Director of the Office of Population Research published a paper entitled “Emergency Contraception: A Last Chance to Prevent Unintended
10 The Supreme Court has thus repeatedly reaffirmed “the feasibility of case-by-case consideration of religious exemptions to generally applicable rules,” which can be “‘applied in an appropriately balanced way’ to specific claims for exemptions as they ar[i]se.” O Centro, 546 U.S. at 436 (quoting Cutter v. Wilkinson, 544 U.S. 709, 722 (2005)).
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Pregnancy.”11 The paper’s conclusion is unambiguous: “no published study has yet demonstrated that increasing access to ECPs [emergency contraceptives like the morning-after and week-after pills] reduces pregnancy or abortion rates in a population.” Id. at 15. Dr. Trussell similarly concludes: “it is unlikely that expanding access [to emergency contraceptives] will have a major impact on reducing the rate of unintended pregnancy.” Id. The extent to which free access to “conventional” contraceptives might affect unintended pregnancy rates and thus the associated adverse health effects is irrelevant to this case, which is focused on emergency contraceptives that can function abortifaciently. Thus, the government’s heavy emphasis on the alleged benefits of free contraceptives are besides the point.
Making the imposition of the Mandate on the Schools even more unjustified, there is scant evidence that providing cost-free access even to conventional contraceptives reduces unintended pregnancies. The Institute of Medicine report on which HHS relied fails to demonstrate that forcing employers to cover FDA-approved contraceptives will actually reduce the number and percentage of unintended pregnancies — and thus the adverse health events that may (or may not) be attributable to the unintended nature of the pregnancy. The IOM report observes that private health insurance coverage of contraceptives had increased since the 1990s. IOM Report at 109. If insurance coverage of contraceptives were truly the key to reducing unintended pregnancies — as the Mandate presupposes — then one would have expected the rate of such pregnancies to decline as insurance coverage rose. But it did not.12
The IOM report nonetheless claims that forcing employers to cover contraceptives without cost sharing will reduce unintended pregnancies. It cites a particular “policy brief” for the proposition that “cost-sharing requirements, such as deductibles and copayments, can pose barriers to care and result in reduced use of preventive and primary care services.” Id. (citing
11 James Trussell & Elizabeth G. Raymond, Emergency Contraception: A Last Chance to Prevent Unintended Pregnancy, available at http://ec.princeton.edu/questions/ec-review.pdf, at 15 (last visited Oct. 11, 2013) 12 See, e.g., Lawrence B. Finer & Mia R. Zolna, Unintended Pregnancy in the United States: Incidence and Disparities, 2006, 84 CONTRACEPTION at 478–85 (2011); Nat’l Campaign to Prevent Teen & Unplanned Pregnancy, Unplanned Pregnancy in the United States, http://www.thenationalcampaign.org/resources/pdf/briefly-unplannedin-the-united-states.pdf (last visited Oct. 11, 2013).
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Julie Hudman & Molly O’Malley, Kaiser Comm’n on Medicaid & the Uninsured, Health Insurance Premiums and Cost-Sharing: Findings from the Research on Low-Income Populations (Mar. 2003)). Yet this policy brief simply does not support the contention that forcing employers like the Schools to cover abortifacients (or, for that matter, contraceptives) will reduce unintended pregnancies.
Most significantly, the paper focuses exclusively upon low-income participants in publicly-financed health programs like Medicaid. One cannot legitimately draw broad inferences from studies focused on this population; the IOM report itself acknowledges that lowincome women have much higher rates of unintended pregnancy. IOM Report at 102. One certainly cannot assume that the impact of co-payments and deductibles on health care utilization on relatively well-compensated employees of employers like Biola and Grace is the same as it is on Medicaid participants. Second, the policy brief itself acknowledges that the effect of costsharing varies with the type of health services in question. Third, and relatedly, the studies the paper surveys (with a single 30 year-old exception) do not examine the impact of cost-sharing upon the use of contraceptives, much less the impact on the unintended pregnancy rate or the incidence of the adverse health effects that correlate with unintended pregnancy.
In addition to the failure of the IOM report adequately to support this presupposition that free access to abortifacients will reduce unintended pregnancies, other evidence contradicts it outright. First, as discussed below, survey data reveals that cost plays a small role, if any, in decisions about birth control. Second, as also discussed below, state-specific research data conclusively proves that contraceptive mandates do not solve the unintended pregnancy problem. Indeed, the evidence reveals no apparent correlation between the existence of such mandates and unintended pregnancy rates. In fact, as shown infra, states with contraception mandates have higher rates of unintended pregnancy than states without them. Thus, the Mandate almost certainly will not advance the government’s interest in reducing unintended pregnancies. Forcing religious institutions like Grace and Biola to pay for abortifacients as a means of advancing this interest is indefensible.
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Strategic Pharma Solutions recently conducted what it characterizes as a “comprehensive landmark survey of American women’s attitudes toward and experience with contraception.” The survey is entitled Contraception in America: Unmet Needs Survey.13 The executive summary of the survey results reaffirms that “[a]ccidental pregnancies remain common despite readily available contraception.” Contraception in America at 2. Over 40% of the survey respondents were not trying to get pregnant but were also not currently using any method of birth control. Id. at 14. When asked why they were not using any method of birth control, only 2.3% of this group stated that birth control was too expensive. Id. This reason was dead last among the nine reasons offered by respondents. Id. Of the women who were using birth control, only 1.3% reported that they chose a particular method because of its affordability. Id. at 16. This reason was second-to-last among the 19 offered by survey respondents. Id. Given this data, it is difficult to accept the government’s assertion that its mandate will advance its interest in reducing unintended pregnancies.
State-specific research data conclusively proves that contraceptive mandates do not substantially ameliorate the unintended pregnancy problem. Over two dozen states have adopted laws requiring group health plans to include contraceptives.14 Yet these states experience rates of unintended pregnancy that are actually higher than in the states without such mandates. In the states with mandates, the average rate of unintended pregnancies in 2006 was 52.58%; the average rate in states without mandates in 2006 was 50.38%.15 Plainly, contraceptive mandates are not an effective means of noticeably diminishing unintended pregnancies. Therefore, even if
13 Strategic Pharma Solutions, Contraception in America: Unmet Needs Survey, Executive Summary, http://www.contraceptioninamerica.com/downloads/Executive_Summary.pdf (last visited Oct. 11, 2013) [hereinafter Contraception in America]. 14 See Nat’l Conference of State Legislatures, Insurance Coverage for Contraception Laws, http://www.ncsl.org/issues-research/health/insurance-coverage-for-contraception-state-laws.aspx (last visited Oct. 11, 2013); Guttmacher Inst., Insurance Coverage of Contraceptives, http://www.ncsl.org/Issuesresearch/health/insurance-coverage-for-contraception-state-laws.aspx (last visited Oct. 11, 2013). 15 The Guttmacher Institute maintains and publishes a “reproductive health profile” for each of the 50 states. See Guttmacher Inst., State Data Center, http://www.guttmacher.org/datacenter/profile.jsp (last visited Oct. 11, 2013). Each state’s profile includes the percentage of pregnancies in 2006 that were unintended.
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reducing unintended pregnancies and the corollary adverse health events might be deemed a “compelling interest” (which is contested) for purposes of the Religious Freedom Restoration Act (and the First Amendment), the Mandate is simply not an effectual way to advance that interest.
Imposing the Mandate on the Schools will not advance Defendants’ stated interest in equalizing preventive care expenditures between the sexes. Grace and Biola already include conventional birth control pills and sterilization in their health care plans, and will comply with Mandate’s directive to eliminate cost-sharing for those items. As noted above, it is highly unlikely that Grace or Biola employees or students will ever use abortifacients, and, in the event they do, the cost of those items is not prohibitive. See, e.g., Declaration of Tonya Lee Fawcett, ¶ 13 (“Grace employees are sufficiently well-compensated to be able to bear the relatively modest cost of abortifacients like ella and Plan B in the unlikely event that an employee elected to use those drugs.”); Am. Compl., DE 54, ¶ 109 (Plan B widely available for between $30 and $65; ella widely available for $55).
C. The Balance of the Equities Warrants Entry of a Preliminary Injunction on the Schools’ RFRA Claim.
This Court should preliminarily enjoin Defendants from applying the Mandate to the Schools because they “will suffer irreparable harm if a preliminary injunction is denied” and have established (far more than) “some likelihood of success on the merits.” Ezell v. City of Chicago, 651 F.3d 684, 694 (7th Cir. 2011). Plaintiffs have undeniably met these threshold requirements, and thus this Court should balance each party’s likelihood of success against the potential harms. Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S. of Am., Inc.,549 F.3d 1079, 1100 (7th Cir. 2008). The balance of the equities tips heavily in the Schools’ favor.
Grace’s next employee plan is scheduled to begin on January 1, 2014. The Mandate will apply to that plan in the absence of injunctive relief. Accordingly, Grace is right now facing an unenviable choice: either comply with the Mandate and transgress its duties to God, or drop its employee plan and face enormous penalties. Although Biola’s employee plan begins a few
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months later (April 1, 2014), there is no compelling reason to hold off on granting it preliminary injunctive relief as well.
On the other side of the ledger, granting injunctive relief will not undermine the government’s stated interests. Defendants concede that there is no reason to impose the Mandate on employers whose employees share their religious convictions about abortifacients. Giving free access to abortifacients to the Schools’ employees will neither reduce unintended pregnancies nor advance equality of the sexes. See, e.g., Declaration of Wendy Walker, ¶ 15 (“I reject the contention that I must be given free access to abortifacients to experience equality based on sex.”).
II. THE SCHOOLS ARE ENTITLED TO SUMMARY JUDGMENT ON THEIR FREE EXERCISE CLAUSE CLAIM. In addition to violating RFRA, the Mandate violates the Free Exercise Clause. The
Mandate it is not “neutral [or] generally applicable.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 545 (1993) (citing Emp’t Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872, 880 (1990)). As a result the Mandate is subject to strict scrutiny, Lukumi, at 546.16 As discussed above, it cannot meet that standard.
A. The Mandate is not Generally Applicable. The Mandate is not generally applicable under the Free Exercise Clause. A law is not generally applicable if it regulates religiously-motivated conduct, yet refrains from regulating similar secular conduct. See, e.g., Lukumi, 508 U.S. at 544–45. Laws may lack general applicability when they are underinclusive, id. at 543, involve the granting of discretionary exemptions, id. at 537, see also Smith, 494 U.S. at 884, or involve categorical exemptions that burden religious practice, Fraternal Order of Police Newark Lodge No. 12 v. City of Newark,
16 Neutrality and general applicability overlap and “failure to satisfy one requirement is a likely indication that the other has not been satisfied.” Lukumi, 508 U.S. at 531; see also id. (noting that “[n]eutrality and general applicability are interrelated”); id. at 557 (Scalia, J., concurring) (observing that the concepts “substantially overlap”). Still, each merits separate analysis, and “strict scrutiny will be triggered” if the law at issue “fails to meet either requirement.” Rader v. Johnston, 924 F. Supp. 1540, 1551 (D. Neb. 1996) (emphasis supplied) (citing Lukumi, 508 U.S. at 531-33, 544-46).
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170 F.3d 359, 365 (3rd Cir. 1999) (Alito, J.) (citing Lukumi, 508 U.S. at 542). “The Free Exercise Clause protects religious observers against unequal treatment, and inequality results when a legislature decides that the governmental interests it seeks to advance are worthy of being pursued only against conduct with a religious motivation.” Lukumi, 508 U.S. at 542-43 (internal quotation marks and citation omitted). The underinclusiveness of the statute at issue in Lukumi rendered it not generally applicable where it “fail[ed] to prohibit nonreligious conduct that endangers . . . interests [in public health and preventing animal cruelty] in a similar or greater degree than Santeria sacrifice does.” Id. at 543.
As explained above, the Mandate here exempts tens of millions of women on a variety of grounds, primarily including employees and plan participants who will be exempt because their plans will be grandfathered,17 yet the government refuses to exempt Plaintiffs based on their religious objections. The grandfathering exemption is not based on any scientific rationale that those employees and covered persons are physiologically different than the people who work for religious-minded employers such as Plaintiffs, such that birth control does not give them the same allegedly compelling benefits. Yet the government is content to withhold its Mandate from tens of millions of women enrolled in grandfathered plans that the government’s regulations give a “right” to persist indefinitely.
The government has further undermined the applicability of its Mandate by refusing an exemption to Plaintiffs but at the same time fully exempting “religious employers” that are churches, integrated auxiliaries of churches, conventions of churches, or the exclusively religious activities of religious orders. See 78 Fed. Reg. at 39874 (“simplifying” and “clarifying” the religious employer exemption by restricting it to only those non-profits referred to in 26 U.S.C. § 6033(a)(3)(A)(i) or (iii)). The government’s explicit rationale for this exemption is that “[h]ouses of worship and their integrated auxiliaries that object to contraceptive coverage on
17 HealthReform.gov, “Fact Sheet: Keeping the Health Plan You Have: The Affordable Care Act and “Grandfathered” Health Plans,” available at http://www.ct.gov/oha/cwp/view.asp?Q=461560&A=11 (last accessed Oct. 9, 2013) (estimating in 2010 that 55% of 113 million large-employer plan participants, and 34% of 43 million small-employer plan participants, will be covered by grandfathered plans as far out as the data is projected by the end of 2013).
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religious grounds are more likely than other employers to employ people of the same faith who share the same objection, and who would therefore be less likely than other people to use contraceptive services.” 78 Fed. Reg. at 39,874. Meanwhile, employees of entities such as Plaintiffs “may be less likely than participants and beneficiaries in group health plans established or maintained by religious employers to share such religious objections of the [Plaintiffs].” 78 Fed. Reg. 8,456, 8,461–62. But there is no rational basis for the government to declare that integrated auxiliaries of churches—which often schools and often automatically include seminaries—are “more likely than” the devoutly Christian Plaintiffs at Grace and Biola in this case “to employ people of the same faith who share the same objection” that the Plaintiffs share. The government has presented no data about the beliefs of employees at the thousands of various integrated auxiliaries of churches around the country, it has no data about the beliefs of Plaintiff entities (except the verified facts indicating how deeply devout their activities are), and it has no rational grounds upon which to compare those nonexistent data sets and conclude that the former are worthy of an exemption but not the latter.
With respect to Grace Schools’ seminary, the government’s distinction is selfcontradictory. Under tax regulations, seminaries are in general are automatically considered “integrated auxiliaries” of churches. See 26 C.F.R. § 1.6033-2(h)(5) (creating a “special rule” that “seminaries” will be considered integrated auxiliaries without needing to satisfy some of the ordinary criteria of the integrated auxiliary rule). But for reasons entirely incidental to this Mandate Grace’s seminary is not an “integrated auxiliary.” Grace Schools, Inc. consists of both Grace College and Grace Theological Seminary; Biola University operates the Talbot School of Theology. If Grace Theological Seminary were a separate entity, it would not need to satisfy the internal support test and could thus be considered an integrated auxiliary, and would therefore be exempt from the Mandate. The only difference between Grace Theological Seminary and a stand-alone seminary is simply that Grace’s seminary is operated by Grace Schools, rather than being a separate entity. As a result Grace’s seminary is denied an exemption for an arbitrary reason that has no relationship to advancing the purposes of the Mandate, while the Mandate
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itself has adopted standards generally exempting seminaries even if they fail important parts of “integrated auxiliary” criteria under 26 C.F.R. § 1.6033-2(h).
Thus the government has decided that some devout religious non-profit entities can be exempt from the Mandate but not others, based on counter-factual speculation about the beliefs of the entities’ employees. This is a quintessential example of the government “fail[ing] to prohibit [] conduct that endangers . . . interests [of the Mandate] in a similar or greater degree than [Plaintiffs’ exemption request] does.” Lukumi, 508 U.S. at 542–43. If the Mandate’s interests are not endangered by exempting “religious employers,” on the basis of the government’s speculation about the beliefs of employees, the government cannot deny an exemption to Plaintiffs without rendering its Mandate not generally applicable.
The government has also chosen not to apply some crucial penalties associated with this Mandate to small employers: they can drop employee coverage altogether (including this Mandate) without being fined under the Affordable Care Act, but larger employers such as Plaintiffs cannot.18 This leaves many employees without abortifacient coverage delivered through their employers and their employers’ insurers—those employees will have to receive the Mandate’s benefits somewhere else. Yet the government claims it has a compelling interest in forcing that same Mandated coverage to come to Plaintiffs’ employees through Plaintiffs’ own insurers and third party administrators. The government has no basis for distinguishing between employees of large and small entities and deciding that the latter need not receive the Mandate from their employers’ insurers but the former must. This is not a generally applicable rule. Also notably, the government has decided not to apply the Mandate to religious sects opposed to insurance altogether, or to “health care sharing ministries” that it has deemed not to be insurance and therefore not to need to cover Mandated items.19
18 See 26 U.S.C. § 4980H(c)(2) (employers are not subject to penalty for not providing health insurance coverage if they have less than 50 full-time employees). 19 26 U.S.C. §§ 5000A(d)(2)(a)–(b).
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The Mandate is also not generally applicable because PPACA itself awards the Government unlimited discretion to shape its scope. The Government “may establish exemptions” for religious objectors, 45 C.F.R. § 147.130 (emphasis added), or it may choose not to. And pursuant to 42 U.S.C. § 300gg-13, the Government’s discretion to craft its exemptions is unlimited. 76 Fed. Reg. at 46,623 (asserting that § 300gg-13 grants HHS/HRSA “authority to develop comprehensive guideless” under which the Government believes “it is appropriate that HRSA, in issuing these Guidelines, takes into account the effect on the religious beliefs of certain religious employers”). Section 300gg-13 has no criteria in it limiting the discretion of Defendants in deciding who should get an exemption, or why, or what kind. Using their unfettered assessments, the government has continually changed its exemptions and accommodations since August of 2011. This has led to numerous proposals and versions of the rule in the Federal Register, and multiple versions of a “safe harbor” Guidance that the Defendants have issued in addition to the regulations. The stated reasons behind why the government exempted “religious employers” but not Plaintiffs—that employees of the latter are somehow “less likely” to share their beliefs—illustrates the government’s unrestrained exercise of discretion as it created and changed its rule without criteria that is required to be objective and to eliminate arbitrary, discriminatory decision-making. This exercise itself has amounted to “individualized … assessment of the reasons for the relevant conduct”—reasons related to nonexistent data about employee beliefs at different non-profit entities—which deprives the Mandate of general applicability and subjects it to strict scrutiny. Lukumi, 508 U.S. at 537 (quoting Smith, 494 U.S. at 884).
As the court said in Fraternal Order of Police:
The concern [about the government’s deciding that secular motivations are more important than religious ones] 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.
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170 F.3d at 365. The grandfathering exemption of tens of millions of women exists for the “secular” reason that to get enough votes to pass PPACA, “[d]uring the health reform debate, President Obama made clear to Americans that ‘if you like your health plan, you can keep it.’”20 The government also asserts post hoc logistical reasons for the grandfathering provision, but all of those reasons are likewise secular, yet they exempt tens of millions of women from the Mandate while refusing to exempt similarly situated employers such as Plaintiffs. In Fraternal Order of Police, the Third Circuit found a lack of general applicability when a police department’s no-beard policy allowed a medical exemption but refused religious exemptions. “[T]he medical exemption raises concern because it indicates that the [police department] has made a value judgment that secular (i.e., medical) motivations for wearing a beard are important enough to overcome its general interest in uniformity but that religious motivations are not.” Id. at 366. See also Blackhawk v. Pennsylvania, 381 F.3d 202, 210–11, 214 (3d Cir. 2004) (Alito, J.) (rule against religious bear-keeping violated Free Exercise Clause due to categorical exemptions for zoos and circuses); Canyon Ferry Road Baptist Church of East Helena, Inc. v. Unsworth, 556 F.3d 1021, 1035 (9th Cir. 2009) (Noonan, J., concurring) (campaign finance requirements were not generally applicable where they included categorical exemptions for newspapers and media, but not for churches).
The government’s many exemptions here span the gamut of reasons while still refusing a religious exemption to Plaintiffs. The grandfathering provision gives plans a “right” to avoid the Mandate indefinitely for secular reasons; the “religious employer” exemption relies on secular tax code distinctions regarding which entities must file a 990 tax form, and on the government’s unfounded claim that employees at religious non-profit entities such as Plaintiffs do not sufficiently share their employers’ mission-oriented beliefs as do schools and seminaries that the IRS deems “integrated auxiliaries.” The small employer provision that allows them to dump

20 HealthCare.Gov, “Keeping the Health Plan You Have: The Affordable Care Act and ‘Grandfathered’ Health

Plans,”

available

at

http://web.archive.org/web/20130620171510/http://www.healthcare.gov/news/factsheets/2010/06/keeping-the-

health-plan-you-have-grandfathered.html (last visited Oct. 10, 2013).

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health insurance coverage altogether without penalty serves secular and economic purposes under which the government is content to not have this Mandate flow to employees from their employers’ or those employers’ insurers, while the government would heavily penalize Plaintiffs if they dropped coverage. These sorts of categorical exemptions led the court to deem the law not generally applicable in Fraternal Order of Police, 170 F.3d at 365. See generally Lukumi, 508 U.S. at 542 (“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.”).
B. The Mandate is Not Neutral. The Mandate is also subject to strict scrutiny under the Free Exercise Clause because it is not neutral; it discriminates among religious organizations on a religious basis. It thus fails the most basic requirement of neutrality. See, e.g., Lukumi, 508 U.S. at 532 (explaining that “protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons”). As discussed above, the “religious employer” exemption protects the religious exercise of only certain religious employers, specifically distinguishing integrated auxiliaries of churches with regard to whether or not they are required to file an annual tax return, but without any objective basis to distinguish between Plaintiffs and those entities for the purposes of deciding who must comply with this Mandate. See 78 Fed. Reg. at 39874 (aligning the “religious employer” definition with 26 U.S.C. § 6033(a)(3)(A)(i) or (iii), which concerns the filing of tax returns). The government’s explicit rationale for superimposing this tax code distinction onto a requirement of birth control coverage is that the government claims, without explanation, that “integrated auxiliary” schools and seminaries have employees that share their employers’ beliefs to some significantly greater extent than to the Plaintiffs in this case. See 78 Fed. Reg. at 39,874; 78 Fed. Reg. at 8,461–62. This unfounded criterion engages in religious gerrymandering. See Lukumi, 508 U.S. at 534. The Government made its own subjective decision about which religious employers to exempt and which not to. It is a mystery how the Government determined that non-profit
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religious employers who are not exempt from filing a Form 990 each year would not possess the
same values and generally employ the same sympathetic-minded individuals as exempt nonprofit religious employers, even if both kinds of entities are schools, or both are seminaries.21
Some schools and seminaries are integrated auxiliaries of churches, and some are not, based on
factors having absolutely nothing to do with the beliefs of the employees or their desire for
abortifacient coverage in health insurance. The § 6033 distinction borrowed for this Mandate
has no relationship to birth control or employee beliefs at all. It simply pertains to whether the
IRS seeks to specifically examine the donation activities of a non-profit entity as would be
reported on a Form 990, or whether that examination is not necessary because of the entity’s
relationship with a church. Thus there is no “neutrality” in using the § 6033 criteria for this
Mandate, because the criteria have no articulated or evidence-based relationship with the
Mandate, much less a rational connection to the delivery of abortifacient coverage to some employees but not others.22 The decision is instead a raw political decision, whereby
government officials decided it could form a basis to win an election and public debate if it refused to exempt Plaintiffs, but not if it refused to exempt §6033(a)(3)(A)(i) or (iii) entities.23
See Lukumi, 508 U.S. at 534 (“Official action that targets religious conduct for distinctive
21 Applying the § 6033 filing exceptions to the Mandate would falsely divide religious employers into two categories based on distinctions in a church conventions and the level of financial support from a church to an employer, which may depend on a church denomination’s governance structure or even the affluence of its members. See comment by Church Alliance dated April 8, 2013, available at http://www.churchalliance.org/sites/default/files/images/u2/comment-letter-4-8-13.pdf (last visited Oct. 9, 2013); cf. Larson v. Valente, 456 U.S. 228, 246, fn. 23 (1982) (striking down a law on Establishment Clause grounds that distinguished between different religious organizations and had the effect of discriminating between well established churches and newer churches, based on the primary source of the organization’s funds (i.e., members versus public solicitation)). 22 See Edward McGlynn Gaffney, Jr., Governmental Definition of Religion: The Rise and Fall of the IRS Regulations on an “Integrated Auxiliary of a Church”, 25 VAL. U.L. REV. 203, 211-16 (1991), available at http://scholar.valpo.edu/cgi/viewcontent.cgi?article=2152&context=vulr (last visited Oct. 9, 2013) (describing the original purpose of the differential treatment of churches and other non-profits under I.R.C. § 54(f) (§ 6033 under the current tax code) as relating to preventing tax fraud but not wanting to submit churches to financial oversight, detailing the development of different, changing and confusing religious terms used by Congress for various exemptions throughout that period and finally concluding that the language settled on in § 6033 for those organizations exempt from filling a From 990 “did not come into the tax code as one laden with meaning either in church history or legal history.”) 23 See, e.g., Helene Cooper and Laurie Goodstein, “Rule Shift on Birth Control Is Concession to Obama Allies” (Feb. 10, 2012), available at http://www.nytimes.com/2012/02/11/health/policy/ obama-to-offer-accommodationon-birth-control-rule-officials-say.html?pagewanted=all&_r=0 (last accessed October 10, 2012) (describing the proposal to offer a limited exemption as a political decision).
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treatment cannot be shielded by mere compliance with the requirement of facial neutrality.”); see also Braunfeld v. Brown, 366 U.S. 599, 607 (1961) (noting that “[i]f the purpose or effect of a law is to impede the observance of one or all religions or is to discriminate invidiously between religious, that law is constitutionally invalid even though the burden may be characterized as being only indirect.”).
Lukumi warns that “[t]he neutrality of a law is suspect if First Amendment freedoms are curtailed to prevent isolated collateral harms not themselves prohibited by direct regulation.” 508 U.S. at 539. In light of the unsupported distinction made by the government between the two types of employees (those working for exempt integrated auxiliaries of churches that are schools or seminaries, and those working for non-exempt religious employers that are schools or seminaries), there is no basis for the government to claim that direct harm will be avoided if Plaintiffs are refused an exemption but integrated auxiliaries are given an exemption. The government has essentially conceded that exempting integrated auxiliaries is entirely tolerable in the context of this Mandate. Refusing the same exemption to Plaintiffs violates neutrality towards their religious beliefs.
Consequently, the Mandate is subject to strict scrutiny failing the requirements both of neutrality and of general applicability. For these reasons, the Mandate violates the Free Exercise Clause, since as discussed above it cannot satisfy strict scrutiny.
III. THE SCHOOLS ARE ENTITLED TO SUMMARY JUDGMENT ON THEIR ESTABLISHMENT CLAUSE CLAIM. The Mandate also violates the Establishment Clause of the First Amendment. The
Mandate’s “religious employer” exemption, as discussed above, sets forth the Government’s notion of what “counts” as religion and what doesn’t count for the purposes of who will be exempt under the Mandate. And in doing so it has exempted and refused to exempt entities that are substantially similar with respect to the Mandate: schools and seminaries that are integrated auxiliaries of churches receive an exemption, while other devoutly religious schools and
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seminaries are not exempt. But the Government may not create a caste system of different religious organizations, belief-levels, and “accommodations” when it imposes a burden. Instead, “when we are presented with a [law] granting a denominational preference, our precedents demand that we treat the law as suspect and that we apply strict scrutiny in adjudging its constitutionality.” Valente, 456 U.S. at 246; see Colorado Christian Univ. v. Weaver, 534 F.3d 1245, 1257 (10th Cir. 2008) (stating that the Government “must treat individual religions and religious institutions ‘without discrimination or preference.’”); see also Wilson v. NLRB, 920 F.2d 1282 (6th Cir. 1990) (holding that section 19 of the National Labor Relations Act, which exempts from mandatory union membership any employee who “is a member of and adheres to established and traditional tenets or teachings of a bona fide religion, body, or sect which has historically held conscientious objections to joining or financially supporting labor organizations,” is unconstitutional because it discriminates among religions and would involve an impermissible government inquiry into religious tenets), cert. denied, 505 U.S. 1218 (1992). While the government may want the analysis to end where no specific reference is made to denomination in the statute, apparent facial neutrality cannot overcome making “deliberate distinctions between different religious organizations.” Valente, 456 U.S. at 246, fn. 23.
In Valente the Court held that a state law governing the registration and disclosure rules for charitable organizations, which made a distinction based on whether or not a religious organization received fifty per cent of its contributions from members or affiliated organizations, violated the Establishment Clause. Despite the State’s argument that the distinction in the statute was “eminently sensible,” in light of its secular purpose, the apparent premises underlying the chosen distinction were without support. Id., at 248–49. The Court instead found that the law made “explicit and deliberate distinctions between different religious organizations” and had the effect of distinguishing between “well-established churches that have achieved strong but not total financial support from their members, on the one hand, and churches which are new and lacking in a constituency, or which, as a matter of policy, may favor public solicitation over general reliance on financial support from members, on the other hand.” Id. at 246 n. 23.
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Here the Government has used its discretion to impose almost exactly the same kind of 50% of income criteria to distinguish between exempt and non-exempt (but similar) entities as it imposed unconstitutionally in Valente. Integrated auxiliaries of a church under Internal Revenue Code § 6033(a)(3)(A)(i) can be schools and seminaries, but on the other hand, schools and seminaries like Plaintiffs can be devoutly religious and yet not considered integrated auxiliaries. Whether an entity is an “integrated auxiliary” is determined by various criteria summarized in 26 C.F.R. § 1.6033–2. In general, this criteria asks whether an entity is “affiliated” and “internally supported” by a church or convention of churches. Being “internally supported” means that if an entity “[o]ffers admissions” to the general public—as schools and seminaries do—it cannot also “[n]ormally receive[] more than 50 percent of its support from” contributions and other nonchurch sources. In other words, determining whether an entity is an integrated auxiliary is eerily similar to the fifty percent income source rule struck down in Valente. And like the Valente rule, the integrated auxiliary criteria here has no “eminently sensible” nexus to the application of that rule in the context of an abortifacient coverage Mandate. The government’s stated reason for imposing the integrated auxiliary rule to exclude Plaintiffs is the unfounded theory that Plaintiffs’ employees are less religiously devoted to Plaintiffs’ beliefs than are the employees of integrated auxiliaries. But the beliefs of employees is a criterion found nowhere in 26 C.F.R. § 1.6033–2. Meanwhile a school can be considered an integrated auxiliary if it satisfies 26 C.F.R. § 1.6033–2, while Plaintiffs’ schools are deprived an exemption solely because they don’t satisfy that criteria, without the existence of any rationale in that criteria suggesting that they are less devout than integrated auxiliary schools. Moreover, seminaries are explicitly exempted from that section’s “fifty percent rule,” see 26 C.F.R. § 1.6033–2(h)(5), and yet Grace’s seminary is not because it is a subdivision of a broader school non-profit entity instead of being a freestanding seminary separate from its devout sister school.
The government’s decision to deny an exemption to devout Christian institutions of learning, based on unrelated and subjective criteria superimposed from IRS rules relating to filing tax returns, is an act of discrimination among religious entities that violates the
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Establishment Clause. The Government’s premise, however, has no support either in the record or in the history of the § 6033 definition and its previous iterations. Other religious organizations not included within § 6033(a)(3)(A)(i) or (iii) have been given exemptions by the IRS in other Code provisions, out of First Amendment concerns over subjecting them to financial oversight by the IRS.24 Using a definition that is inadequate for encapsulating the breadth of religious doctrines, denominations and structures that inform everything along the continuum from houses of worship to non-exempt, non-profit religious employers practicing their beliefs through services to the public, the Government has made a judgment about what individual employees beliefs may or may not be depending on which employer they choose to work for.25 There is no evidence that the Government has or can identify to justify its exemption of integrated auxiliaries but not Plaintiffs as non-profit religious entities on the basis of speculation about employee beliefs and institutional dedication to those beliefs. Instead, the Mandate’s religious exemption draws an effectively random line that distinguishes between denominational or structural differences among various religious employers. Rather than treating all religious organizations and denominations equally, the Mandate is one of those regulations that “clearly grants denominational preferences of the sort consistently and firmly deprecated in our precedents.”
24 See comment by Church Alliance, supra, at note 6 (listing groups such as educational organizations affiliated with a church or operated by a religious order described in § 170(b)(1)(A)(i), mission societies sponsored by or affiliated with one or more churches or church denominations that conduct or direct one-half or more of their activities towards persons in foreign countries, organizations described in § 6033(a)(3)(C) (which is a religious organization described in § 501(c)(3) other than a private foundation, the gross receipts of which in each taxable year are normally not more than $5,000) and organizations exempt from filing Form 990 under the authority of Revenue Procedure 96-10, 1996-1 C.B. 577). While some of these organizations may or may not qualify as integrated auxiliaries under § 6033(a)(3)(A)(i), the tortured history of the term “integrated auxiliaries” and the nebulous congressional intent behind it cut against the Government again, as it is impossible to say the term is moored in any objective criteria that help delineate how “religious” an organization is or is not. See generally Gaffney, supra, at note 7; comment by Church Alliance, supra, at note 6. 25 It is worth noting that in the case of all non-exempt religious employers, including those contributing most visibly to society, such as religious hospitals, colleges, universities and charities, employees have chosen to work for these employers and implicitly agreed to the terms, conditions and benefits of employment. See comment by United States Conference of Catholic Bishops dated March 20, 2013, available at http://www.usccb.org/about/generalcounsel/rulemaking/upload/2013-NPRM-Comments-3-20-final.pdf (last visited Oct. 9, 2013).
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Valente, 456 U.S. at 246. The similarities to Valente are fatal to the Government’s argument. On this basis the rule should be invalidated for violating the Establishment Clause.26
IV. THE SCHOOLS ARE ENTITLED TO SUMMARY JUDGMENT ON THEIR FREE SPEECH CLAUSE CLAIM. The Mandate additionally violates the First Amendment by coercing Plaintiffs to provide
for speech that is contrary to its religious beliefs. The “right to speak and the right to 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 W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943)). Accordingly, the First Amendment protects the right to “decide what not to say.” Hurley v. Irish-Am. Gay, Lesbian, & Bisexual Grp. of Boston, 515 U.S. 557, 573 (1995) (internal quotation marks omitted). 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.
Here, the Mandate unconstitutionally coerces Plaintiffs to speak a message they find morally objectionable. It does so in two ways. First, the Mandate includes required coverage not only for abortifacients but also for “education and counseling” related to the same. Education and counseling are speech. The coverage of that speech includes speech in favor of abortifacient items, since by its terms the coverage includes any such education and counseling, and since if a doctor prescribes emergency contraception or an IUD the information and counseling associated with that prescription will necessarily be supportive of using such items (otherwise the doctor would not be prescribing it). As discussed above, the Mandate and its
26 As set forth above, the Government cannot meet the compelling governmental interest standard.
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“accommodation” coerce the Plaintiffs to provide a health plan that acts as the conduit for coverage of such “education and counseling,” in the form of promised payments for such education and counseling by Plaintiffs’ insurers or obtained by Plaintiffs’ third party administrators. Second, in the case of self-insured entities such as Grace Schools, the Mandate explicitly compels the schools, if they want to religiously object to the Mandate, to engage in speech that designates their third party administrator to obtain coverage of abortifacients in favor of abortifacients. This coerced speech is contained in the specialized “certification” that selfinsured entities “must” execute, which includes not only a religious objection to specific items, but also a declaration that “cite[s] 29 CFR 2510.3–16 and 26 CFR 54.9815– 2713A and 29 CFR 2590.715–2713A, which explain the obligations of the third party administrator.” 78 Fed. Reg. at 39,879. This language is legally operative language that by definition is “a designation of the third party administrator(s) as plan administrator and claims administrator for contraceptive benefits pursuant to section 3(16) of ERISA.” Id. That designation requires the third party administrator, under ERISA section 3(16)(A)(i), to go out and obtain the contraceptive coverage to which the self-insured entity objects, as part of “a contractual relationship with the eligible organization.” Id. at 39,879–80. Necessarily then, the required self-certification for self-insured entities such as Grace Schools includes a requirement that the school engage in legally operative speech designating a third party to obtain for its employees the coverage that the entity objects to arranging for. This component of the certification for self-insured entities belies the government’s mantra that no entity such as Plaintiffs will have to “contract, arrange, pay or refer for” objectionable coverage. By definition, and by admission in the government’s rule, a selfinsured entity must specifically “arrange” and “contract” for its third party administrator to obtain the objectionable coverage when the entity specifically declares its “designation” of the third party administrator’s duty to do so under ERISA. The government backhandedly concedes that it has violated its own no-contracting, no-arranging rule by saying that “after providing third party administrators with a copy of the self-certification,” self-insured entities are not involved in contracting, arranging” etc. for contraceptive coverage. Id. (emphasis added). They don’t
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contract or arrange for it after the self-certification, because the government coerces them to do so in the self-certification.
The conduct required by the Mandate, facilitating access to educational programs for abortifacients and the products themselves that Plaintiffs strongly object to on religious grounds, and explicitly contracting and arranging for coverage of objectionable items, is coercive speech that violates Plaintiffs’ freedom under the First Amendment. This speech, and the conduct Plaintiffs must engage in to facilitate this speech, is “inherently expressive,” in two ways. First the Mandate requires Plaintiffs to cover “education and counseling” in favor of items to which they object. Education and counseling are, by definition, kinds of expression, and they include counseling in favor of an item that a doctor has just prescribed as good for the patient. The selfinsurance certification, in turn, is itself a written form of speech, and it explicitly designates a third party to obtain coverage of items to which the self-insured entity objects. Hiring someone, in writing, to do a religiously objectionable thing is inherently expressive.
Second, the Mandate requires the Plaintiffs to fund an insurance plan that, under the accommodation, triggers objectionable coverage in the form of speech. The Supreme Court has explained that its compelled speech jurisprudence is triggered when the government forces a speaker to fund objectionable speech. See, e.g., Abood v. Detroit Bd. of Ed., 431 U.S. 209, 23435 (1977) (forced contributions for union political speech); United States v. United Foods, 533 U.S. 405, 411 (2001) (forced contributions for advertising). The Supreme Court recently reaffirmed that “compulsory subsidies for private speech” violate the First Amendment unless they involve a “mandated association” that meets the compelling interest / least restrictive means test. Knox v. Service Employees Intern. Union, 132 S. Ct. 2277, 2289 (2012). Here there is no “mandated association” because the government omits many employers from the Mandate, and the Mandate violates the compelling interest test. Allowing the Mandate in light of Knox would be like allowing half of a company’s employees to not join a union, but still forcing speechobjectors to pay the union’s full dues. These factors, and because the Mandate is not a condition
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on government funding, distinguish this situation from Rumsfeld v. Forum for Academic & Inst. Rights, Inc., 547 U.S. 47 (2006).
V. THE SCHOOLS ARE ENTITLED TO SUMMARY JUDGMENT ON THEIR DUE PROCESS CLAUSE CLAIM. The Mandate violates the Due Process Clause of the Fifth Amendment because it creates
a standardless blank check for Defendants to discriminatorily create and enforce its “religious” exemptions and accommodations. HRSA is tasked with determining, under the ACA, what groups are sufficiently “religious” to qualify for an exemption, and which ones are not; this unbridled discretion is impermissible under the Due Process Clause.
A law that is so “standardless that it authorizes or encourages seriously discriminatory enforcement” does not comport with due process. United States v. Williams, 553 U.S. 285, 304 (2008); see also FCC v. Fox Television Stations, Inc., 132 S. Ct. 2307, 2317 (2012). If a law is so vague that it “fails to provide a person of ordinary intelligence fair notice of what is prohibited,” it fails to provide constitutional due process. Williams, 553 U.S. at 304. The PPACA provision underlying the Mandate authorizes Defendants to exempt religious employers, directing the agencies to determine the scope of the exemption. Public Health Service Act § 2713 (codified at 42 U.S.C. § 300gg-13); see also 76 Fed. Reg. at 46,623. This statutory authority is unfettered, as HRSA is tasked with determining the entire scope of the religious exemption, without any statutory guidance, and has the authority to determine the “level of religiosity” required to satisfy an exemption.
Furthermore, there is absolutely no limit on HRSA deciding whether or not contraception, abortifacients, related education and counseling, and other services are preventive in the first place—the statute itself does not define what qualifies as “preventive service.” Section 2713 of the ACA contains no standards regarding these decisions, and offers absolutely no guidance as to who counts as “religious” for purposes of the exemption and what kind of accommodation such objectors could receive, despite the fact that such an exemption implicates
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constitutional rights. Section 2713 is therefore a quintessential law so “standardless that it authorizes or encourages seriously discriminatory enforcement.” The statute practically invites discriminatory and unconstitutional enforcement—which is exactly what Defendants have done in this case.
The government has decided to take plain requirements of PPACA and issue unilateral waivers, delays, and exemptions from those requirements without the authority of PPACA or Congress. See, e.g., the one year delay in reporting requirements for large employers to provide health coverage to their employees, IRS Notice 2013-45, July 9, 2013, available at http://www.irs.gov/pub/irs-drop/n-13-45.pdf, and the declaration that Congress will not be ejected from the subsidies provided in the Federal Employees’ Health Benefits Program as PPACA requires, IRS Notice 2013-45, July 9, 2013, available at http://www.irs.gov/pub/irsdrop/n-13-45.pdf; OPM BAL 13-207, September 30, 2013, available at http://www.opm.gov/retirement-services/publications-forms/benefits-administrationletters/2013/13-207.pdf; PPACA § 1312(d)(3)(D), 42 U.S.C. § 18032(d)(3)(D). The Executive Branch’s unfettered discretion in picking and choosing which parts of PPACA to enforce, while refusing to give exemptions from this Mandate to the Plaintiffs in this case, constitute an exercise of unfettered and illegal discretion under the Due Process Clause.
VI. THE SCHOOLS ARE ENTITLED TO SUMMARY JUDGMENT ON THEIR ADMINISTRATIVE PROCEDURE ACT CLAIMS. A. Defendants Refused Meaningfully to Consider Objections Before the Mandate Was Finalized. The Mandate violates the Administrative Procedure Act (APA) because the agency failed
to meaningfully consider the comments solicited in promulgating the final rule. Section 706 of the APA provides that courts “shall hold unlawful and set aside agency action, findings, and conclusions found to be without observance of procedure required by law.” 5 U.S.C. § 706(2)(D). The APA requires Defendants to follow the procedure found in § 553, which requires administrative agencies to: (1) publish notice of proposed rulemaking in the Federal
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Register; (2) “give interested parties an opportunity to participate in the rule making through submission of written data, views, or arguments”; and (3) consider all relevant matter presented before adopting a final rule that includes a statement of its basis and purpose. 5 U.S.C. § 553(b) & (c).
“An agency is required to provide a meaningful opportunity for comments, which means that the agency’s mind must be open to considering them.” Grand Canyon Air Tour Coalition v. F.A.A., 154 F.3d 455, 468 (D.C. Cir. 1998) (internal citations omitted) (emphasis added). The agency’s lack of meaningful consideration is highlighted by three facts: (1) the ACA prohibits the Mandate from going into effect until one year after its final form; (2) Defendants insisted, in August 2011, prior to the comment period, that they believed that the Mandate must exist in final form on August 1, 2011; and (3) After adopting the interim August 2011 final rule “without change” in February 2012, Defendants initiated a new regulatory process to accommodate the same objections offered in the 2011 comment period, and then impose that rule finally in August 2013, but made it applicable to plans starting merely six months later in January 2014.
These admissions confirm that the Defendants did not engage in meaningful consideration of comments for interim final rules. Defendants maintain two contradictory positions: that the Mandate can be imposed on Plaintiffs less than six months after its final August 2013 version, because it was really finalized in 2011 (or 2012); but, that the comment periods occurring prior to August 2013 did “meaningfully” consider those comments with an “open mind” to not imposing the original final rule, so that the rule really wasn’t final until August 2013. Both positions cannot be true. If the rule was finalized in 2011 or 2012, the comment periods that happened thereafter were shams. If the comments were meaningfully considered, the rule wasn’t really finalized until August 2013 and cannot be imposed on Plaintiffs until their health plans starting after August 2014.
The Mandate cannot go into effect until plan years following a one year waiting period after the Mandate is in its final, unchanged form under the ACA. 75 Fed. Reg. at 41,726; see also 76 Fed. Reg. at 46,624. Precisely because of this fact, Defendants published the Mandate as an
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interim final rule—issued prior to the notice and comment period ordinarily required—on August 1, 2011, with a notice and comment period to follow afterwards. 76 Fed. Reg. 46,621-26. Defendants explain that their reason for the abbreviated regulatory process was that “[m]any college student policy years begin in August” so that if Defendants did not concretize their Mandate prior to the notice and comment period, “many students could not benefit from the new prevention coverage without cost sharing following from the issuance of the guidelines until the 2013–14 school year, as opposed to the 2012–13 school year.” Id. at 46,624. Put succinctly, Defendants desire to bypass normal regulatory procedure under the APA because female college students would be required to wait another year for free contraception, abortifacients, and sterilization if the Mandate was not promulgated in final form by August 1, 2011. By this assertion, the Defendants essentially admit that they never had any intention of meaningfully considering the solicited comments, including those by religious objectors, submitted postAugust 1, 2011, because doing so would render Defendants enable to impose the Mandate in August 2012. Defendants never had any “open mind” about whether it is rational to, for example, exempt schools and seminaries that are “integrated auxiliaries” but not exempt the Plaintiffs here, despite that distinction bearing no relationship with birth control coverage.
Finally, Defendants have themselves proven that they were closed to meaningful consideration of the comments issued after August 2011. Defendants initiated a new rulemaking process (“ANPRM”) in March 2012 to change the Mandate, based on the same objections contained in the 200,000 comments that they had previously ignored when they finalized the 2011 Mandate. The ANPRM and the final rulemaking process culminating in the August 2013 final rule was wholly unnecessary if Defendants actually considered those same objections prior to finalizing the August 2011 Mandate in February 2012.
The Defendants’ disregard of the notice and comment process has led to palpable injury of Plaintiffs. The Mandate should have exempted them entirely due to the irrationality of exempting similar integrated auxiliaries and to the illegality of the Mandate under RFRA and the Constitution. Moreover, Plaintiffs must comply with the Mandate and its accommodation
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starting as early as January 2014, instead of being allowed to wait as specified in the PPACA until the start of their plan years that begin more than a year after the August 2013 final rule. The Mandate’s adoption of HRSA’s preventive services guidelines against religious objectors should be vacated and remanded to the Defendant agencies until they finalize a Mandate after “meaningful consideration” of objections.
B. The Mandate is Arbitrary and Capricious. The Mandate violates the APA for being “arbitrary and capricious” under 5 U.S.C. § 706(2)(A), see Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-17 (1971), for: (1) failing to sufficiently consider the objection that the requirement to provide contraceptives which act as abortifacients would violate the religious beliefs of employers subject to the Mandate; and (2) subjecting nearly identical religious organizations to differential treatment under the narrow religious exemption to the Mandate. Defendants failed to respond to comments that the Mandate would violate entities’ religious beliefs. Many commenters raised concerns “about paying for such [contraceptive] services and stated that doing so would be contrary to their religious beliefs,” and that “the narrower scope of the exemption raises concerns under the First Amendment and the Religious Freedom Restoration Act. See, e.g., 78 Fed. Reg. at 39,886–88. However, Defendants responded only with conclusory statements that the Mandate and its accommodation do not substantially burden religious exercise and pass the strict scrutiny test. Id. As described above, these arguments are severely wrong as a matter of law. Defendants ignore the fact that Plaintiffs object not merely to “paying” but to facilitating objectionable coverage through the accommodation. Defendants falsely offer the idea that “multiple degrees of separation” and “attenuation” exist between what Plaintiffs object to and their religious beliefs, when the “substantial burden” test does not and legally cannot render that sort of theological judgment. See Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707, 715 (1981) (rejecting the idea that being “sufficiently insulated” from evil undermines a plaintiff’s “substantial burden,”
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because “Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one. Courts should not undertake to dissect religious beliefs . . . .”).
Defendants ignored altogether the fact that self-insured entities are required to arrange and contract for their third party administrator to obtain objectionable coverage, and falsifies as a matter of fact that self-certification “simply confirms that an eligible organization is a nonprofit religious organization with religious objections.” 78 Fed. Reg. at 39,887. Defendants’ contention that its Mandate is supported by a compelling interest disregards the fact that generic “health” interests cannot, by definition, be compelling because they are too broadly formulated, and also fails to address the mere correlation and lack of causal connection or evidence between mandating coverage on the one hand, and then the items increasing usage, that usage decreasing unintended pregnancy, and that decrease necessarily reducing adverse effects to a compelling degree. Id. Defendants repeat without citing any rationale or evidence the assertion that it is legitimate to exempt integrated auxiliary schools and seminaries from this Mandate but not to exempt entities such as Plaintiffs. Id. This renders the Mandate’s exemption scheme arbitrary under the APA. Thus, the agency utterly failed to “cogently explain why it has exercised its discretion in a given matter.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 48–49 (1983). The Defendants also defended the alleged violation of First Amendment freedoms with entirely conclusory statements that the Mandate is constitutional. Id.
“A classification such as this one must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relationship to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” Nazareth Hosp. v. Sebelius No. 10-3513, 2013 WL 1401778, at *9 (Apr. 8, 2013) (citing Medora v. Colautti, 602 F.2d 1149, 1152 (3d Cir. 1979)) (emphasis added). The invalidity of federal regulations promulgated by an agency which results in disparate treatment of similarly-situated organizations without sufficient justification is illustrated in Nazareth Hospital, which invalidated a regulation on APA and equal protection grounds that provided funding to some hospitals, but denied funding for identical services at other hospitals. Id. at *15. The Court held
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that the distinctions made in the agency’s rulemaking decisions did “not justify the disparate treatment of two groups of hospitals—hospitals in Pennsylvania that serve [certain nonMedicaid, low-income patients] versus hospitals in other states that also serve non-Medicaideligible, low-income patients under a . . . waiver.” Id. at *9. The Court found that the government’s reasons for the disparate treatment were “not supported by substantial evidence or consistent with the public comments in the rulemaking record.” Id. at *7 (emphasis added).
The Mandate in this case is arbitrary and unsupported by evidence for similar reasons. It irrationally distinguishes between exempt integrated auxiliary schools and seminaries while refusing to exempt Plaintiffs’ theological schools and seminary. This distinction is arbitrary with respect to the purposes of the Mandate and the integrated auxiliary rule, which on their face have no nexus to the beliefs of employees at different religious entities. The government has no basis for treating nearly identical institutions differently, simply because of a difference in structure under the internal revenue code as an “integrated auxiliary” of a church. This Mandate is inconsistent with the public comments which expressed concern that the Mandate would require religious employers to violate their sincerely-held beliefs, in violation of the APA.
C. The Mandate is Contrary to Law. The APA forbids agency action from being “contrary to law” and “constitutional right” under 5 U.S.C. § 706(2)(A) & (B). See Volpe, 401 U.S. at 415–17. The Plaintiffs’ claim is predicated on the fact that the Mandate violates several provisions of federal law. These include the provisions discussed above, such as RFRA and the First and Fifth Amendments. They also include provisions of the Affordable Care Act itself, the Weldon Amendment, and the Church Amendment, in violation of the APA.
1. The Mandate is contrary to the ACA’s ban on abortion mandates. The Mandate is contrary to the provision of the ACA that states that nothing in Title I of the ACA, which includes the provision governing “preventive services,” “shall be construed to require a qualified health plan to provide coverage of [abortion] services…as part of its essential health benefits for any plan year.” Section 1303(b)(1)(A) (codified at 42 U.S.C. § 18023). The
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Mandate requires coverage of certain “FDA-approved contraceptives” which act as abortifacients,27 in that they cause the demise of human embryos after conception and before and/or after implantation in the uterus. Destroying a human embryo that is in a woman’s body constitutes an action that is abortifacient, that destroys a new human life, and that terminates a pregnancy.28 Accordingly, the Mandate contradicts the requirements of the ACA itself, in violation of the APA.
2. The Mandate is contrary to the Weldon Amendment. The Mandate is contrary to the provisions of the Weldon Amendment to the Consolidated Appropriations Act of 2012, Public Law 112-74, § 507(d)(1), 125 Stat 786, 1111 (Dec. 23, 2011), which provides that none of the funds made available in the Act for appropriations for Defendants Department of Labor and Health and Human Services “may be made available to a Federal agency or program . . . if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” The Mandate was enacted and enforced by the Defendant Labor and HHS Departments. Those Defendants are using funds appropriated under the 2012 and previous Appropriations Acts to subject the Plaintiffs to discrimination due to their refusal to cover abortifacient drugs and devices. The Mandate is therefore contrary to the Weldon Amendment.
27 The Mandate requires coverage of the morning after pill (Plan B), the week after pill (ella), and intrauterine devices, which can act as abortifacients by preventing implementation of a fertilized human embryo. Accordingly, the Mandate violates the Weldon Amendment, contrary to the APA. 28 See Dorland’s Illustrated Medical Dictionary 31st Ed. (2007) (“Pregnancy” is “The condition of having a developing embryo or fetus in the body, after union of an ovum and spermatozoon.); Mosby’s Medical Dictionary 7th Ed. (2006) (“Pregnancy” is “The gestational process, comprising the growth and development within a woman of a new individual from conception through the embryonic and fetal periods to birth.”; “Conception” is “1. the beginning of pregnancy, usually taken to be the instant that a spermatozoon enters an ovum and forms a viable zygote 2. the act or process of fertilization.”); Stedman's Medical Dictionary 28th Ed. (2006) (“Pregnancy” is “The state of a female after conception and until the termination of the gestation.”; “Conception” is “Fertilization of oocyte by a sperm”).
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3. The Mandate is contrary to the Church Amendment. The Mandate also violates the provisions of the Church Amendment, which provides that “[n]o individual shall be required to perform or assist in the performance of any part of a health service program or research activity funded in whole or in part under a program administered by the Secretary of Health and Human Services if his performance or assistance in the performance of such part of such program or activity would be contrary to his religious beliefs or moral convictions.” 42 U.S.C. § 300a-7(d). The Mandate unquestionably requires individuals to participate in and fund activity which they find objectionable on the basis of sincerely-held religious beliefs, in a program administered by HHS, in violation of the Church Amendment; this is impermissible under the APA. For all of these reasons, the Mandate is invalid under the Administrative Procedure Act.
CONCLUSION For the foregoing reasons, the Schools respectfully request that this Court grant their motions for preliminary injunction and summary judgment, and deny Defendants’ motions to dismiss and for summary judgment. Respectfully submitted this 11th day of October, 2013.
/s Gregory S. Baylor Gregory S. Baylor (Texas Bar No. 01941500) Matthew S. Bowman (DC Bar No. 993261) ALLIANCE DEFENDING FREEDOM 801 G Street, NW, Suite 509 Washington, DC 20001 (202) 393-8690 (202) 347-3622 (facsimile) gbaylor@alliancedefendingfreedom.org mbowman@alliancedefendingfreedom.org David A. Cortman (Georgia Bar No. 188810) ALLIANCE DEFENDING FREEDOM
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1000 Hurricane Shoals Road, NE, Suite D-1100 Lawrenceville, GA 30043 (770) 339-0774 (770) 339-6744 (facsimile) dcortman@alliancedefendingfreedom.org Kevin H. Theriot (Kansas Bar No. 21565) ALLIANCE DEFENDING FREEDOM 15192 Rosewood Leawood, KS 66224 (913) 685-8000 (913) 685-8001 (facsimile) ktheriot@alliancedefendingfreedom.org Jerry Mackey (California Bar No.90416) 13800 Biola Avenue La Mirada, CA 90639 (562) 903-4777 (562) 903-4748 (facsimile) university.legalcounsel@biola.edu Jane Dall Wilson (Atty No. 24142-71A) FAEGRE BAKER DANIELS LLP 300 North Meridian Street, Suite 2700 Indianapolis, IN 46204 (317) 237-0300 (317) 237-1000 (facsimile) jane.wilson@faegrebd.com Attorneys for Plaintiffs
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case 3:12-cv-00459-JD-CAN document 70 filed 10/11/13 page 56 of 56 CERTIFICATE OF SERVICE
I hereby certify that on October 11, 2013, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to all counsel of record.
s/ Gregory S. Baylor
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case 3:12-cv-00459-JD-CAN document 70-1 filed 10/11/13 page 1 of 28

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION

GRACE SCHOOLS and BIOLA UNIVERSITY, INC.
Plaintiffs,
v.
KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; THOMAS E. PEREZ, in his official capacity as Secretary of the United States Department of Labor; JACOB J. LEW, in his official capacity as Secretary of the United States Department of the Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; and UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants.

) ) ) ) ) Case No. 3:12-cv-459 JD ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

PLAINTIFFS’ STATEMENT OF MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Pursuant to Local Civil Rule 56.1(a), Plain tiffs hereby submit the following statement of material facts as to which Plaintiffs contend th ere is no genuine issue in connection with their motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure:
1. Grace College and Seminary is “an evangelical Christian comm unity of higher education which applies biblical values in st rengthening character, sharpening competence, and preparing for service.” Grace’s aspirational vision is to “be an exceptional learning community that transforms people to live their lives for God and others.” (Am. Compl., DE 54, ¶ 21.)

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2. Grace Seminary, part o f Grace College and Sem inary, is a learn ing community dedicated to teaching, training, and transforming the whole person for m inistry in the local church and around the globe. (Am. Compl., DE 54, ¶ 21.)
3. At Grace, the studen ts, administration, faculty, and staff aim together to m ake Christ preeminent in all things. Students learn this by living, studying, working, worshipping, and achieving academic success with other you ng people who share s imilar Christian ideals in a setting where the community lifesty le fosters devotion to serious acad emic inquiry, wholesome recreation and relaxation, and mature spiritual growth. (Am. Compl., DE 54, ¶ 23.)
4. Grace College and Sem inary has a “Covenant of Faith” that “[a] ffirm[s] biblical truth and God’s grace.” (Am. Compl., DE 54, ¶ 25.)
5. Members of Grace’s Board of Trustees , which governs the College, m ust subscribe annually to the College’s Covenant of Faith, which is consistent with the beliefs of t he Fellowship of Grace Brethren Churches with wh ich Grace is affiliated. (Am. Compl., DE 54, ¶ 27.)
6. Grace College and Seminary draws its f aculty, staff, and adm inistration from among those who profess the Covenant of Faith of the College and Statem ent of Faith of the Fellowship of Grace Brethren Churches. (Am. Compl., DE 54, ¶ 28.)
7. The College requires a profession of faith as a prerequisite for student adm ission. (Am. Compl., DE 54, ¶ 29.)
8. All students are expected to adhere to the standards set forth in the Grace College Community Lifestyle Statement. (Am. Compl., DE 54, ¶ 29.)
9. The Community Lifestyle Statement declares in part as follows: Members of the Grace College and Theological Seminary (Grace Schools) are committed to the m ission of the institu tion and to liv ing in a m anner that brings glory to the nam e of the Lord. To this end we agree to uphold the standards of the community as cited in this statement.
(Declaration of Lisa Harman, Exhibit F, p.4; Declaration of Lisa Harman, Exhibit G, p. 4.)
10. The Community Lifestyle Statement declares in part as follows:
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The Word of God is the final authority on all m atters of faith and conduct. Therefore, items expressly forbidden in the Scripture are n ot acceptable for members of the Grace Schools co mmunity. Examples include prid e, lust, slander, drunkenness, profane language, prem arital sex, adultery, hom osexual behavior, and prejudice. (1 Corinthians 6:9-11). (Harman Decl., Ex. F at 4; Harman Decl., Ex. G at 4.)
11. The Community Lifestyle Statement declares in part as follows: Grace Schools values the worth and dign ity of hum an life as expressed through the fruit of the spirit. Having been made in the image of God, those who live an d work at the institu tion express like faith and are exp ected to respect and uphold life-affir ming practices that distinguish our faith community from other institutions of higher education, particularly for those who are vulnerable m embers of society. Consistent with the views of the Fellowship of Grace Br ethren Churches, Grace Schools believes that hum an life is worthy of respect and protecti on at all stages fro m the tim e of conception. The sanctity of human lif e is e stablished by creation ( Gen. 1:26-27), social protection (Gen. 9:6) and redemption (John 3:16).
(Am. Compl., DE 54, ¶ 37; Harman Decl., Ex. F at 4; Harman Decl., Ex. G at 4.) 12. The Community Lifes tyle Statement is part of Grace’s application for
employment. (Harman Decl., Ex. F at 4; Harman Decl., Ex. G at 4; Harman Decl., ¶ 14.) 13. The Grace employment application asks applicants whether they “wholeheartedly
subscribe to the do ctrinal statement of Grace Schools.” (Harman Decl., Ex. F at 4; Harm an Decl., Ex. G at 4.)
14. The Grace em ployment application asks each applican t whether “you consider yourself without reservation to be a conservative, evangelical Christian.” (Harm an Decl., Ex. F at 4; Harman Decl., Ex. G at 4.)
15. The Grace employment application requires applicants to “write a brief account of your conversion and a statement of your present commitment to Christ.” (Harman Decl., Ex. F at 4; Harman Decl., Ex. G at 4.)
16. The Grace employment application asks appl icants whether they have ever been divorced. (Harman Decl., Ex. F at 4; Harman Decl., Ex. G at 4.)
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17. The Grace em ployment application asks ap plicants to ide ntity the “ Christian organizations of which you are a m ember.” (Harman Decl., Ex. F at 4; Harm an Decl., Ex. G at 4.)
18. The Fellowship of Grace Brethren Churches believes that human life is worthy of protection and respect at all stages from the time of conception. (Am. Compl., DE 54, ¶ 32.)
19. The College agrees with the Fello wship of Gr ace Brethren Churches’ relig ious views regarding abortion, believing that th e procurement, participation in, facilitation of, or payment for abortion (including ab ortion-causing drugs like Plan B and ella) violates the Sixth Commandment and is inconsistent w ith the dignity conferred by God on creatures m ade in His image. (Am. Compl., DE 54, ¶ 34.)
20. By “conception,” “pregnancy,” “abortion” a nd related concepts referenced herein regarding the sanctity of innocent human life and prohibitions on its destruction, Grace Colleg e understands such concepts to recognize and protec t the lives of hum an beings from the m oment of fertilization. (Am. Compl., DE 54, ¶ 35.)
21. Through its Fall 2013 “Statem ent on Community Expectations for F aculty and Staff,” members of the Grace community “agree to uphold the standards of the community” set forth in the Statement. (Am. Compl., DE 54, ¶ 36.)
22. The Statement reads in pertinent part as follows: Grace Schools values the worth and dign ity of hum an life as expressed through the fruit of the Spirit. Having been made in the image of God, those who live an d work at the institu tion express like faith and are exp ected to respect and uphold life-affir ming practices that distinguish our faith community from other institutions of higher education, particularly for those who are vulnerable m embers of society. Consistent with the views of the Fellowship of Grace Br ethren Churches, Grace Schools believes that hum an life is worthy of respect and protecti on at all stages fro m the tim e of conception. The sanctity of hu man life is established by creation (Genesis 1:26-27), social protec tion (Genesis 9:6) and redem ption (John 3:16).
(Am. Compl., DE 54, ¶ 37.)
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23. In September 2009, cro sses representing the 2,016 abortions (1982-2008) in

Kosciusko County, Indiana, where Grace is locate d, were placed on the north and east lawns of

Morgan Library on the Grace campus. The crosses were a reminder of the human beings, each

created in the image and likeness of God (Genesis 1:26), whose lives were so tragically ended by

abortionists. Crosses have been placed on the Grace campus every su bsequent year as well.

(Am. Compl., DE 54, ¶ 38.)

24. Every two years, the sanctity of life is addressed by a speaker in corporate chapel.

(Am. Compl., DE 54, ¶ 39.)

25. In June 200 7, Grace College hos ted the Pro-L ife Music F estival, which drew

several thousand attendants to s ee a number of popular Christian bands. (Am. Compl., DE 54,

¶ 40.)

26. Grace College students have participated in the Pro-Life Day of Silent Solidarity .

(Am. Compl., DE 54, ¶ 41.)

27. Grace College hosts the annual Right to Life Banquet at th e Orthopedic Capital

Center. At the Banquet, over 1,000 community members gather together to proclaim the

message that all human life is precious, from conception to natural death. (Am. Compl., DE 54,

¶ 42.)

28. To fulfill its religious commitments and duties in the Christ-cente red educational

context, Grace prom otes the spiritual and physic al well-being and health of its em ployees and

students. This includes the provision of gene rous health insurance to employees and their

dependants and the facilitation of a student health plan. (Am. Compl., DE 54, ¶ 43.)

29. Consistent with its religious commitm ents, Grace College p rovides a self-insured

group plan for its em ployees, acting as its own in surer but working with a third-party claim s

administrator. (Am. Compl., DE 54, ¶ 44.)

30. Under the term s of Grace’s plan for its em

ployees, coverage excludes

abortifacient drugs like Plan B and ella. (Am. Compl., DE 54, ¶ 46.)

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31. The plan do es, however, include a variet y of contracep tive methods that Grace does not consider to be morally objectionable. (Am. Compl., DE 54, ¶ 47.)
32. The next plan year for the College’s em ployee health insurance plan will start on January 1, 2014. (Am. Compl., DE 54, ¶ 48.)
33. Grace requires all reg istered residential students to have he alth insurance. If a student does not subm it proof of c overage to th e College, it will enroll the s tudent in a hea lth insurance plan issued by Galla gher Koster. The plan does not include coverage for the abortifacients and related counsel ing to which the College morally objects. (Am. Compl., DE 54, ¶ 50.)
34. The mission of Biola Univers ity is biblically-centered education, scholarship and service – equipping m en and women in m ind and ch aracter to im pact the world f or the Lo rd Jesus Christ. (Am. Compl., DE 54, ¶ 52.)
35. Biola’s vision is to be an exem plary Christian university characterized as a community of grace th at promotes and inspires personal life transform ation in Christ which illuminates the world with His light and tru th. As a global center for Christian thought and an influential evangelical voice that ad dresses crucial cultural issues, Biola University aspires to lead, with confidence and com passion, an intellectual and spiritua l renewal that advances the purpose of Christ. (Am. Compl., DE 54, ¶ 53.)
36. Biola believes that there is truth – that it is knowable and revealed in God’s inerrant Word. Biola believes that Christians can accordingly live with unshakeable confidence and hope, knowing that the Bible and God’s truth ha ve direct application to their lives, their work, their relationships, and the culture around them. (Am. Compl., DE 54, ¶ 54.)
37. Biola believes that holding a biblical worldview is foundational to understanding life and truth. It believes that God has equipped it to uphold truth and sustain community at the University through Christ-centered and Spirit-led education, scholarship, and service that is grounded in Scripture and that challenges its commun ity to seek and integrate biblical principles into its fields of study. Biola believes that all it does should be Chri st-centered and based on
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the teachings of Jesus. It believes that Chris t provided the best m odel for how to live and that following Him is a way of life that, when follo wed to its fullest expression, will impact how Christians live and the choices they make. (Am. Compl., DE 54, ¶ 55.)
38. Biola believes that participating in a Christian community of grace is important in the life of the believer. It believes that the iden tity of Christians as children of the Triune God lies in their lives lived in and through community, holistic relationships, mutual interdependence upon the Indwelling Spirit and members of the Body and seeking th e unity of the Spirit. Biola draws its faculty, staff, and students from among those who profess faith in Christ. (Am. Compl., DE 54, ¶ 56.)
39. Biola believes that through the renewi ng of the m ind and care of the body it prepares its students to live within the culture in a loving and Christ-honoring way. Through a rigorous, Christ-centered and Spirit -led education, the University enables its students to grapple with and e ngage in th e spiritual, intellectual, ethical and cultural issues of our tim e, their implications and application to everyday life. (Am. Compl., DE 54, ¶ 57.)
40. Biola believes that through community and dependence upon the Spirit, character is sharpened and Christians grow in their ability to live their lives as the Lord Jesus Christ would. It believes that interactions with fellow Christians provide one of the essential means of character development in the life of the believer. (Am. Compl., DE 54, ¶ 58.)
41. Biola believes that integrity and auth enticity should be hallm arks of every believer. I t believes their relationships should be m odels of transparency, truth-telling, and unwavering commitment to the exam ple set by the Lord Jesus Christ. (Am. Compl., DE 54, ¶ 59.)
42. Biola believes that we exist to serv e God and His Great Commission in reaching the world f or the Lord Jesus Chris t. It believes that Christ-followers are His lig ht to a da rk world and that it is their duty and privilege to make disciples. (Am. Compl., DE 54, ¶ 60.)
43. Biola believes that God uses the faculty, staff, students and alumni to accomplish His plans. It believes that, as servant leaders, each person who is part of Biola's community can
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make a difference in their families, churches, communities, and vocations for Christ's Kingdom.
(Am. Compl., DE 54, ¶ 61.)
44. The University believes that service is an act of worship to God. As followers of
the Lord Jesus Christ, members of the Biola community desire to worship God by living in a way
that is worthy of the calling they have received. (Am. Compl., DE 54, ¶ 62.)
45. Biola believes that it has been blesse d with kingdom resources and desires to
steward them in a God-honoring way. Its desire is to manage its time, money, and gifts and to
care for the students, whose lives have been entrusted to it, in a way that m odels a commitment
to excellence and a total-life attitude of stewardship. (Am. Compl., DE 54, ¶ 64.)
46. Biola’s Doctrinal Statement declares as follows: The Bible is clea r in its tea ching on the sanc tity of life. Life begins at conception. We reject the destructi on or termination of innocent human life through human intervention in any for m after conception including, but not limited to, abortion, infanticide or euthanasia because it is unbiblical and contrary to God’s will. Life is precious and in God’s hands.
(Am. Compl., DE 54, ¶ 65.)
47. The Biola University Em ployee Handbook, in a section entitled “S tandard of
Conduct,” states in part as follows: Consistent with the exam ple and c ommand of Jesus Christ, we believe that life within a Christian community must be lived to the glory of God, with love for God and for our neighbors. Being indwelt by the Holy Spirit, we strive to walk by the Spirit, ‘crucifying the f lesh with its pas sions and d esires’ (Galatians 5:24). To this end, m embers of the Biola com munity are not to engage in a ctivities that Scripture forbids. Such activities include . . . the destruction or termination of innocent human life through human intervention in any form after conception including, but not limited to, abortion, infanticide or euthanasia.
(Am. Compl., DE 54, ¶ 66.)
48. Biola’s undergraduate Student Handbook provides in part as follows: The University wants to assist those involved in unplanned pregnancy while at Biola to co nsider the o ptions available to the m within th e Christian moral framework. These include m arriage of the parents, single parenthood, or offering the child for adoption. Because the Bible is clear in its teaching on
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the sanctity of human life, life begins at conception; we abhor the destruction of innocent life through abortion on demand. Student Development stands ready to help those invo lved to cope effectively with the complexity of needs that a crisis pregnancy presents. (Am. Compl., DE 54, ¶ 67.) 49. To fulfill its religious commitments and duties in the Christ-cente red educational context, Grace prom otes the spiritual and physic al well-being and health of its em ployees and students. This includes the provision of gene rous health insurance to employees and their dependants and the facilitation of a student health plan. (Am. Compl., DE 54, ¶ 68.) 50. Health insurance is available to regular employees who work at least 30 hours per week, for at least ten months of the year. (Am. Compl., DE 54, ¶ 69.) 51. Biola offers two m edical insurance plan s for its e mployees, one through Kaiser and the other through Blue Shield. (Am. Compl., DE 54, ¶ 70.) 52. Neither plan covers abortion-inducing drugs such as ella and Plan B. (Am . Compl., DE 54, ¶¶ 74, 75.) 53. The plans do provide coverage of other drugs characterized by the Food and Drug Administration as “contraceptives.” (Am. Compl., DE 54, ¶¶ 74, 75.) 54. The University requires its students to hav e health insurance coverage. (Am. Compl., DE 54, ¶ 76.) 55. Biola facilitates health insurance for its students who are not otherwise covered by health insurance. (Am. Compl., DE 54, ¶ 76.) 56. Students who enroll in this p lan pay the pr emium to Biola and the University remits payment to the carrier on behalf of the students. (Am. Compl., DE 54, ¶ 76.) 57. Ella and Plan B are excluded from the student plan. (Am. Compl., DE 54, ¶ 76.) 58. On July 19, 2010, HHS published an inte rim final rule re garding the ACA’s requirement that certain preven tive services be covered without cost sharing. 75 Fed. Reg. 41726, 41728 (2010). (Am. Compl., DE 54, ¶ 82.)
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59. HHS issued the interim final rule wit hout a prior notice of rulemaking or opportunity for public comm ent. Defendants dete rmined for the mselves that “it would be impracticable and contrary to the public interest to delay putting the provisions . . . in place until a full public notice and comm ent process was com pleted.” 75 Fed. Reg. at 41730. (Am. Compl., DE 54, ¶ 83.)
60. Although Defendants suggested in the Interi m Final Rule that they would solicit public comments after implementation, they stressed that “provisions of the Affordable Care Act protect significant rights” and therefore it was expedient that “participants, beneficiaries, insureds, plan sponsors, and issuers have cert ainty about their rights and responsibilities.” Id. (Am. Compl., DE 54, ¶ 84.)
61. Defendants stated they would later “pr ovide the public with an opportunity for comment, but without delaying the e ffective date of the regulations,” dem onstrating their intent to impose the regula tions regardless of the le gal flaws or general opposition that m ight be manifest in public comments. Id. (Am. Compl., DE 54, ¶ 85.)
62. After the Interim Final Rule was issued, num erous commenters warned against the potential conscience implications of requiring religious individuals and organizations to include certain kinds of serv ices—specifically contraception, sterilization, and abortion services—in their health care plans. (Am. Compl., DE 54, ¶ 90.)
63. HHS directed a private health po licy organization, the Institute of Medicin e (IOM), to m ake recommendations regarding whic h drugs, procedures, and services all health plans should cover as preventive care for women. (Am. Compl., DE 54, ¶ 91.)
64. In developing its guidelines, IOM invite d a select num ber of groups to m ake presentations on the preventive care that shou ld be included in health plans by force of law. These were the Guttmacher Institute, the American Congress of Obstetricians and Gynecologists (ACOG), John Santelli, the National W omen’s Law Center, National Women’s Health Network, Planned Parenthood Federation of America, and Sara Rosenbaum. (Am. Compl., DE 54, ¶ 92.)
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65. No religious groups or other groups that opposed government-mandated coverage of contraception, sterilization, abortion, and rela ted education and counseling were am ong the invited presenters. (Am. Compl., DE 54, ¶ 93.)
66. On July 19, 2011, the IOM published its preventive care guidelines for wom en, including a recomm endation that preventive services include “[a]ll Food and Drug Administration approved contracep tive methods [and] sterilization procedures” and related “patient education and counsel ing for wom en with reproductive capacity.” Institute of Medicine, Clinical Preventive Services for Women: Closing th e Gaps, at 102-10 and Recommendation 5.5 (July 19, 2011) (hereinafter “IOM Report”).
67. The IOM Report asse rts that 49% o f all pregnancies in the United States were unintended in 2001. (IOM Report at 102.)
68. The IOM Report asserts th at “1 in 20 Am erican women has an u nintended pregnancy each year.” (IOM Report at 102.)
69. The IOM Report asserts that “unintended pregnancy is more likely among women who are aged 18 to 24 and unm arried, who have a low incom e, [and] who are not high school graduates.” (IOM Report at 102, 103.)
70. The IOM Report observes that Healthy People 2020 (HHS 2011), “which sets health goals for the United St ates, includes a national objective of increasing the proportion of pregnancies that are intended from 51 to 56 percent.” (IOM Report at 104.)
71. The IOM Report declares that “[c]ontr aceptive coverage h as become standard practice for m ost private and federally funde d insurance program s.” (IOM Report at 108.) Nonetheless, the rate of unintended pregnancies remains persistently high.
72. The IOM Report observes that private health insurance coverage of contraceptives had increased since the 1990s. (IOM Report at 109).
73. This increase in coverage did not cause the rate of unintended pregnancies to decline. See, e.g., Lawrence B. Fin er and Mia R. Zolna, Unintended Pregnancy in the United States: Incidence and Disparities, 2006, 84 CONTRACEPTION at 478-85 (2011); Nat’l Campaign
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to Prevent Teen & Unplanned Pregnancy, Unplanned Pregnancy in the United States , http://www.thenationalcampaign.org/resources/pdf/briefly-unplanned-in-the-united-states.pdf.
74. The IOM Report declares that “comprehensive coverage of contraceptive services and supplies [is] ‘the current insurance industry standard,’ with more than 89 percent of insurance plans covering contraceptive methods in 2002.” (IOM Report at 109.) Nonetheless, the rate of unintended pregnancies remains persistently high.
75. The IOM Report declares that “[a] more recent 2010 survey of e mployers found that 85 percent of large employers and 62 of small employers offered coverage of FDA-approved contraceptives.” (IOM Report at 109.) Nonetheless, the ra te of unintende d pregnancies remains persistently high.
76. The IOM Report declares that “[s]ince 1972, Medicaid, the state-federal program for certain low-income individuals, has required coverage for fa mily planning in all state programs and has exem pt family planning services and supplies from cost-sharing requirements.” (IOM Report at 108.) N onetheless, the rate of unintended pregnancies remains persistently high.
77. The IOM Report declares th at “26 states currently operate special Medicaid-funded family planning programs for low-income women who either no longer qualify for Medicaid or do not m eet the program ’s categorical requirements.” (IOM Report at 108.) Nonetheless, the rate of unintended pregnancies remains persistently high.
78. The IOM Report declares that “[t]went y-eight states now have regulations requiring private insurers to c over contraceptives.” (IOM Report at 108.) Nonetheless, the rate of unintended pregnancies remains persistently high.
79. The IOM Report cites a particu lar “policy brief” for the proposition th at “cost-sharing requirements, such as deductible s and copaym ents, can pose barriers to care and result in reduced use of preventive and primary care services.” (IOM Report at 109 (citing Julie Hudman & Molly O’ Malley, Kaiser Comm’n on Medicaid & the Uninsured, Health Insurance
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Premiums and Cost-Sharing: Findings from the Resear ch on Low-Income Populations (Mar. 2003).
80. The policy brief focuses exclusively on low-income participants in publicly-financed health programs like Medicaid.
81. One cannot legitim ately draw broad inferences from studies focused on the low-income population. One cannot assume that the impact of co-payments and deductibles on health care utilization o n relatively well-compensated employees of employers like Grace and Biola is the same as it is on Medicaid participants.
82. The policy brief concedes that the effect of cost-sharing varies with type of health services in question.
83. The studies the p aper surveys (with a single 30 year-old exception) do not examine the impact of cost-sharing upon the use of contraceptives or abortifacients, m uch less the impact on the unintended pregnancy rate or th e incidence of the adverse health effects that correlate with unintended pregnancy.
84. Anthony Lo Sasso, P rofessor and S enior Research Scientist, Division of Health Policy and Administration, University of Illinois at Chicago School of Public Health , served on the Institute of Medicine’s Committee on Preven tive Services for Women (the Committee tha t issued the report on which HHS relied in issuing the Mandate). (IOM Report1 at v.)
85. Dr. Lo Sasso prepared a dissenting opini on from the Report, which was published along with the Report. (IOM Report at 231-35).
86. Dr. Lo Sasso’s dissen t declares that the Committee was given an “unacceptab ly short time frame . . . to conduct or solicit meaningful reviews of the evidence associated with the preventive nature of the services considered.” (IOM Report at 232). The dissent observes that “the final report from the comm ittee was needed barely six months from the ti me the group was empanelled.” ( Id.).
1 The IOM Report is included in the Administrative Record Defendants filed on September 30, 2013 [DE 62.]
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87. Dr. Lo Sasso’s dissent observes that the Report itself acknowledged that “the lack of time prevented a serious and system atic review of evidence for preventive services.” (IOM Report at 232.)
88. Dr. Lo Sasso’s dissent declares that “[r] eaders of the Report should be clear on the fact that the recomm endations were made without high quality, systematic evidence of the preventive nature of the servic es considered. Put differently, eviden ce that th e use of the services in question leads to lower rates of disability or disease and increased rates of well-being is generally absent.” (IOM Report at 232.).
89. Dr. Lo Sasso’s dissent declar es that “the comm ittee process for evaluation of the evidence lacked transp arency and was largely subject to the preferen ces of the committee’s composition. Troublingly, the process tended to re sult in a m ix of objective and subjective determinations filtered through a lens of advocacy.” (IOM Report at 235.)
90. The majority’s response to the dissent is only five sentences long. (IOM Report at 235).
91. FDA-approved contraceptive m ethods include birth-control pills; prescription contraceptive devices s uch as IUDs; Plan B (also known as the “ morning-after pill”) and its chemical cognates; ulipristal (also k nown as “e lla” or the “week-after pill”); and o ther drugs, devices, and procedures. (Am. Compl., DE 54, ¶ 95.)
92. Some of these drugs and devices—in cluding “emergency contraceptives” such as Plan B and ella and certain IUDs —are known abortifacients, in that they can cause the death of an embryo by preventing it from implanting in the wall of the uterus. (Am. Compl., DE 54, ¶ 96.)
93. The FDA’s Birth Control Guide states that Plan B and its cognates, ella, and IUDs can work by “preventing attachm ent (implantation) to the wom b (uterus).” FDA, Office of Women’s Health, Birth Control Guide at 16-18, available as Addendum to Brief of Appellants at 50, Hobby Lobby Stores Inc. v. Sebelius , No. 12-6294, ECF Doc. No. 010189999834 (10th Cir. filed Feb. 11, 2013). (Am. Compl., DE 54, ¶ 97.)
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94. The manufacturers of some of the drugs, methods, and devices in the category of “FDA-approved contraceptive methods” indicate that they can function to cause the demise of an early embryo. (Am. Compl., DE 54, ¶ 98.)
95. The requirement for related “educa tion and counseling” accom panying abortifacients, sterilization and contraception necessarily covers education and counseling given in favor of such item s, even though it m ight also include other edu cation and counseling. Moreover, it is inherent in a medical provider’s decision to prescr ibe one of these item s that she is taking th e position that use of the item is in the patien t’s best in terests, and theref ore her education and counseling related to the item will be in favor of its proper usage. (Am. Compl., DE 54, ¶ 99.)
96. On August 1, 2011, a m ere 13 days afte r IOM published its recomm endations, HHS’s Health Resources and Services Adm inistration (HRSA) issued guidelines adopting them in full. See http://www.hrsa.gov/womensguidelines. (Am. Compl., DE 54, ¶ 100.)
97. Insurance plans starting after August 1, 2012 were subject to the Mandate. (Am. Compl., DE 54, ¶ 101.)
98. Any non-exempt employer providing a hea lth insurance plan that om its any abortifacients, contraception, sterilization, or education and counseling for the sam e, is sub ject (because of the Mandate) to fines approximating $100 per employee per day. (Am. Compl., DE 54, ¶ 102.)
99. Such employers are also vulnerable to la wsuits by the Secretary of Labor and by plan participants. (Am. Compl., DE 54, ¶ 102.)
100. A large employer entity cannot freely a void the Mandate by sim ply refusing to provide health insuranc e to its em ployees, because the A CA imposes monetary penalties on entities that would so refuse. (Am. Compl., DE 54, ¶ 103.)
101. The annual penalty for failing to provide health insurance coverage is $2000 times the number of the employer’s employees, minus 30. (Am. Compl., DE 54, ¶ 104.)
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102. On the very sam e day HRSA rubber-s tamped the IOM’s recommendations, HHS

promulgated an additional interim final rule regarding the preventive services mandate. 76 Fed.

Reg. 46621 (published Aug. 3, 2011). (Am. Compl., DE 54, ¶ 105.)

103. This Second Interim Final Rule g ranted HRSA “ discretion to exempt certain

religious employers from the Guidelines where c ontraceptive services are concerned.” 76 Fed.

Reg. 46621, 46623 (emphasis added). The term “religious employer” was restrictively defined

as one that (1) has as its purpose the “inculcati on of religious values”; (2) “prim arily employs

persons who share the religious tenets of the organization”; (3) “serves prim arily persons who

share the religious tenets of the organization”; and (4) “is a nonprofit organization as described

in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986,

as amended.” 76 Fed. Reg. at 46626 (emphasis added). (Am. Compl., DE 54, ¶ 106.)

104. The statutory citations in th e fourth prong of this test refer to “churches, their

integrated auxiliaries, and conve ntions or ass ociations of churches ” and the “exclusiv ely

religious activities of any reli gious order.” 26 U.S.C. § 6033( a)(3). (Am. Compl., DE 54, ¶

107.)

105. HRSA exercised its discretion to grant an exemption for religious employers via a

footnote on its website listing the W omen’s Preventive Services Gu idelines. The footnote

states that “guidelines concerning contraceptive methods and counseling described above do no t

apply to wom en who are participants or bene ficiaries in group health plans sponsored by

religious employers.” See http://www.hrsa.gov/womensguidelines. (Am. Compl., DE 54, ¶

109.)

106. The Second Interim Final Rule was m ade effective imm ediately, without prior

notice or an opportunity for public comment. (Am. Compl., DE 54, ¶ 112.)

107. Defendants acknowledged that “while a general notice of proposed rulem aking

and an opportunity for public comment is

generally required befo re promulgation of

regulations,” they had “good cause” to conclude that public comment was “impracticable,

16

case 3:12-cv-00459-JD-CAN document 70-1 filed 10/11/13 page 17 of 28

unnecessary, or contrary to the pub lic interest” in this instance. 76 Fed. Reg. at 46624. (Am.

Compl., DE 54, ¶ 113.)

108. After the Second Interim Final Rule wa s put into effect, over 100,000 comm ents

were submitted opposing the narrow scope of the “religious employer” exemption and protesting

the contraception m andate’s gross infringem ent on the rights of religious individuals and

organizations. (Am. Compl., DE 54, ¶ 114.)

109. “[A]pproximately 200,000 comments” were subm itted in respon se to the

subsequent Advance Notice Proposed Rulem aking, 78 Fed. Reg. 8456, 8459, largely restating

previous comments that the governm ent’s proposals would not resolve conscientious objections,

because the objecting relig ious organizations, by providing a health care plan in the first

instance, would still be coerced to arrange for and facilitate access to morally objectionable

services. (Am. Compl., DE 54, ¶ 125.)

110. On February 1, 2013, HHS issued a Notice of Proposed Rulem aking (NPRM)

purportedly addressing the comments submitted in response to the ANPRM. 78 Fed. Reg. 8456

(published Feb. 6, 2013). (Am. Compl., DE 54, ¶ 126.)

111. The NPRM proposed two changes to the then-existing regulations. 78 Fed. Reg.

8456, 8458-59. (Am. Compl., DE 54, ¶ 127.)

112. First, it proposed revising the religious employer exemption by elim inating the

requirements that religious em ployers have th e purpose of inculcating religious values and

primarily employ and serve only persons of th eir same faith. 78 Fed. Reg. at 8461. (Am.

Compl., DE 54, ¶ 128.)

113. Under the NPRM’s proposal, a “religious employer” w ould be one “that is

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

of the [Internal Revenue] Code.” 78 Fed. Reg. at 8461. (Am. Compl., DE 54, ¶ 129.)

114. Second, the NPRM followed up on HHS’

s earlier-stated intention to

“accommodate” non-exempt, nonprofit religiou s organizations by m aking them designate their

17

case 3:12-cv-00459-JD-CAN document 70-1 filed 10/11/13 page 18 of 28

insurers and third party adm inistrators to provide plan participan ts and beneficiaries with free

access to contraceptive and abortifacient drugs and services. (Am. Compl., DE 54, ¶ 132.)

115. “[O]ver 400,000 comm ents” were s ubmitted in response to the NPRM, 78 Fed.

Reg. 39870, 39871, with religious organizations ag ain overwhelmingly decrying the proposed

“accommodation.” (Am. Compl., DE 54, ¶ 134.)

116. The Schools subm itted comments on the NP RM, stating essentially the sam e

objections stated in their original and first amended complaints. (Am. Compl., DE 54, ¶ 135.)

117. On April 8, 2013, the very day that th e notice-and-comment period ended,

Defendant Secretary Sebelius answered questions about the contraceptive and abortifacient

services requirement in a presentation at Harvard University. (Am. Compl., DE 54, ¶ 136.)

118. In her remarks, Secretary Sebelius stated:

We have j ust completed the open comm ent period for the so-called

accommodation, and by August 1st of this year, every employer will b

e

covered by the law with one exception. Churches and chur ch dioceses as

employers are exempted from this benefit. But Catholic hospitals, Catholic

universities, other religious entities will be providing coverage to their

employees starting August 1st. . . . [A ]s of August 1st, 2013, every em ployee

who doesn’t work directly for a chu rch or a d iocese will be included in the

benefit package.

See The Forum at Harvard School of Public Hea lth, A Conversation with Kathleen Sebelius,

U.S. Secretary of Health and Hum

an Services, Apr. 8, 2013,

available at

http://theforum.sph.harvard.edu/events/conversation-kathleen-sebelius (Episode 9 at 2:25)

(emphasis added). (Am. Compl., DE 54, ¶ 137.)

119. On June 28, 2013, Defe ndants issued a final rule. 78 Fed. Reg. 39870 (2013).

Defendants declared that the Final Mandate would be effec tive August 1, 2013, only one m onth

after it was issued. (Am. Compl., DE 54, ¶ 140.)

120. Under the Final Mandate, the discreti onary “religious employer” exem ption,

which is still implem ented via footnote on the H RSA website, see

http://www.hrsa.gov/womensguidelines, remains limited to churches, integr ated auxiliaries, and

religious orders “organ ized and operate[d]” as nonprofit entities and “r eferred to in section

18

case 3:12-cv-00459-JD-CAN document 70-1 filed 10/11/13 page 19 of 28
6033(a)(3)(A)(i) or (iii ) of the [Internal Revenue] Code .” 78 Fed. Reg. at 39874. (Am . Compl., DE 54, ¶ 141.)
121. The final rule explains the re ligious exemption as f ollows: “The Departments believe that the simplified and clarified definition of religious em ployer continues to respect the religious interests of houses of worship and their integrated auxi liaries in a way that does not undermine the governm ental interests furth ered by the contraceptive coverage requirement. Houses of worship and their in tegrated auxiliaries that object to c ontraceptive coverage o n religious grounds are more likely than other empl oyers to employ people of the sa me faith who share the sam e objection, and who would therefore be less likely than other people to use contraceptive services even if such services were covered under their plan.” 78 Fed. Reg. at 39874. (Am. Compl., DE 54, ¶ 142.)
122. Grace and Biola em ploy people of the sam e faith who share the sam e objection. See Harman Decl., ¶¶ 6-11, 14; Declaration of Dee A nna Muraski, ¶¶ 6-7, 11; Declaration of John French, ¶¶ 6-10, 14; Declaration of Sarah Prater, ¶¶ 6-10, 13; Declaration of Tonya Lee Fawcett, ¶¶ 6-10, 14; Declaration of David Swain, ¶¶ 6-9; Declaration of Steve Carlson, ¶¶ 6-10, 14; Declaration of Arielle Pete rs, ¶¶ 6- 9, 13; D eclaration of W anda Bollman, ¶¶ 6- 10, 14; Declaration of Peter Wolff, ¶¶ 6-10, 14; Declaration of Chris Gr ace, ¶¶ 6-10, 14; Declaration of Alison Arcadi, ¶¶ 6-10, 13-14; Decl aration of Alanna Godoy, ¶¶ 6- 9, 13; Declaration of Ketha Boespflug, ¶¶ 6-11, 13; Declaration of Ronald Mooradian, ¶¶ 6-9, 12; Declaration of Wendy Walker; ¶¶ 6-11, 13-14; Declaration of Cynthia Cole, ¶¶ 6-10, 13; Declaration of Scott Rae, ¶¶ 6-11.
123. Grace and Biola em ployees are no t likely to use abortifacients lik e Plan B and ella. Harman Decl., ¶¶ 7-8, 12; Muraski Decl., ¶¶ 7-8, 10; French De cl., ¶¶ 7-8, 12; Prater Decl., ¶¶ 7-8, 11; Fawcett Decl., ¶¶ 7-9, 12; S wain Decl., ¶¶ 8, 11; Carl son Decl., ¶¶ 7-9, 12; Peters Decl., ¶¶ 7-8, 11; Bollman Decl., ¶¶ 7-9, 12; Wolff Decl., ¶¶ 7, 9, 12; Grace Decl., ¶¶ 7-9, 12; Arcadi Decl., ¶¶ 7-9, 12; Godoy Decl., ¶¶ 7- 8, 11; Boespflug Decl., ¶¶ 7-8, 11; Mooradian Decl., ¶ 10; Walker Decl., ¶¶ 7-9, 12; Cole Decl., ¶¶ 7-8, 11.
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124. Grace and Biola em ployees pledge, as a c ondition of employment, that they will not participate in the d estruction of human life. Harman Decl., ¶ 1 4; Muraski Decl., ¶ 11; French Decl., ¶ 14; Prater Decl., ¶ 13; Fawcett Decl., ¶ 14; Carlson Decl., ¶ 14; Peters Decl., ¶ 13; Bollman Decl., ¶ 14; W olff Decl., ¶ 14; Grace Decl., ¶ 14; Arcadi Decl., ¶¶ 13 , 14; Godoy Decl., ¶ 13; Boespflug Decl., ¶ 13; Mooradian Decl., ¶ 12; Walk er Decl., ¶¶ 13-14; Cole Decl., ¶ 13; Rae Decl., ¶ 11.
125. Grace and Biola em ployees do not want thei r dependents, beneficiaries of their health insurance plans, to use abortifacients. Harman Decl., ¶ 9; Fren ch Decl., ¶¶ 9; Fawcett Decl., ¶ 9; Swain Decl., ¶ 8; Ca rlson Decl., ¶ 9; Bollm an Decl., ¶ 9; Grace Decl. , ¶ 9; Arcad i Decl., ¶ 9; Walker Decl., ¶ 9.
126. Grace and Biola em ployees are sufficiently well-compensated to be able to bear the relatively m odest cost of abortif acients like ella and Pla n B in the u nlikely event that they ever elected to us e such drugs. Harman Decl., ¶ 13; French Decl., ¶ 13; Prater Decl., ¶ 12; Fawcett Decl., ¶ 13; Carlson Decl., ¶ 13; Peters Decl., ¶ 14; Bollman Decl., ¶ 13; Wolff Decl., ¶ 13; Grace Decl., ¶ 13; G odoy Decl., ¶ 12; Boespflug Decl., ¶ 12; Mooradian Decl., ¶ 11; Cole Decl., ¶ 12.
127. Grace and Biola em ployees reject the cont ention that they must be given free access to abortifacients to experien ce equality based on sex. Harman Decl., ¶ 16; Murask i Decl., ¶ 12; French Decl., ¶ 15; Prater Decl., ¶ 14; Fawcett Decl., ¶ 15; Carlson Decl., ¶ 15 Peters Decl., ¶ 14; Bollm an Decl., ¶ 15; Grace Decl. , ¶ 15; Arcadi Decl., ¶ 15; Godoy Decl., ¶ 14; Boespflug Decl., ¶ 14; Mooradian Decl., ¶ 13; Walker Decl., ¶ 15; Cole Decl., ¶ 14; Rae Decl., ¶ 12.
128. Grace and Biola em ployees reject the c ontention that drugs and devices th at destroy young human life in the womb advance “ public health.” Harman Decl., ¶ 17; Muraski Decl., ¶ 13; French Decl., ¶ 16; Prater Decl., ¶ 15; Fawcett Decl., ¶ 16; Carlson Decl., ¶ 16 Peters Decl., ¶ 16; Bollm an Decl., ¶ 16; Wolff Decl., ¶ 15; Grace Decl., ¶ 16; Arcadi Decl., ¶ 16 ;
20

case 3:12-cv-00459-JD-CAN document 70-1 filed 10/11/13 page 21 of 28
Godoy Decl., ¶ 15; Boespflug Decl., ¶ 15; Moorad ian Decl., ¶ 14; W alker Decl., ¶ 16; Cole Decl., ¶ 15; Rae Decl., ¶ 13.
129. All Grace employees graduated from high school. Harman Decl., ¶ 18. 130. All other organizations, including the Schools, are denied the exemption’s protection. (Am. Compl., DE 54, ¶ 143.) 131. The Schools do not fall within the scope of this narrow religious exem ption. They are not churches, the integrated auxiliaries of a church, or conventions or asso ciations of churches, nor do they perform the exclusively relig ious activities of a re ligious order. (A m. Compl., DE 54, ¶ 144.) 132. The Final Mandate d eclares that the rules concerning contraceptive and abortifacient services will “apply to student health insurance cove rage arranged by an eligible organization that is an institu tion of higher education in a m anner comparable to that in whic h they apply to group health insura nce coverage provided in connec tion with a group health plan established or m aintained by an eligible org anization that is an em ployer.” 78 Fed. Reg. at 39897. (Am. Compl., DE 54, ¶ 145.) 133. The Final Mandate cre ates a separate “accommodation” for certain non-exempt religious organizations. 78 Fed. Reg. at 39874. (Am. Compl., DE 54, ¶ 146.) 134. An organization is eligible for the a ccommodation if it (1) “[o]pposes providing coverage for some or all of the contraceptiv e services required”; (2) “is organized and operates as a nonprofit entity”; (3) “holds itself out as a religious organization”; and (4) “self-certifies that it satisfies the first three criteria.” 78 Fed. Reg. at 39874. (Am. Compl., DE 54, ¶ 147.) 135. The Schools are eligible for the so-called accommodation. (Am. Compl., DE 54, ¶ 148.) 136. The self-certification must be exe cuted “prior to the beginning of the first plan year to which an accommodation is to apply.” 78 Fed. Reg. at 39875. (Am. Compl., DE 54, ¶ 149.)
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case 3:12-cv-00459-JD-CAN document 70-1 filed 10/11/13 page 22 of 28
137. The Final Rule also extends the curren t Temporary Enforcem ent Safe Harbor through the end of 2013, six months after the issuance of the Final Rule. 78 Fed. Reg. at 39889. (Am. Compl., DE 54, ¶ 150.)
138. Thus, an eligible organization would need to execute the self-certification prior to its first plan year that begi ns on or after January 1, 2014, and deliver it to the organization’s insurer. (Am. Compl., DE 54, ¶ 151.)
139. If the o rganization has a s elf-insured plan, like Grace, it would d eliver the executed self-certification to the plan’s third party administrator. 78 Fed. Reg. at 39875. (Am. Compl., DE 54, ¶ 151.)
140. If it elects to invoke the accommodation with respect to its employee plan, Grace would be required to execute th e self-certification and delive r it to its plan’s third pa rty administrator before January 1, 2014. (Am. Compl., DE 54, ¶ 152.)
141. By delivering its self -certification to its third -party administrator, Grace would trigger the third-party adm inistrator’s provision of or arrangem ent for payments for the morally objectionable abortifacients. 78 Fed. Reg. 39892-39893. These payments constitute coverage of the item s to which Grace objects. See, e.g., id. at 39872 (“the regulations provide wom en with access to con traceptive coverage”), and r eceive treatment as co verage under consumer protection requirements of the Public Health Service Act and ERISA. Id. at 39876. This coverage will not be contained in any insu rance policy sep arate from Grace’s plan. See id. (Am. Compl., DE 54, ¶ 153.)
142. If it elects to invoke the accommodation w ith respect to its em ployee plan, Biola would be required to execute the self-certification and deliver it to its plan’s issuer before April 1, 2014. (Am. Compl., DE 54, ¶ 154.)
143. By delivering its self-certification to its insurer, Biola would trigger the insurer’s obligation to m ake “separate payments for con traceptive services directly for plan participan ts and beneficiaries.” 78 Fed. Reg. at 39875-76 . These payments constitute coverage of the items to wh ich Biola objects. See, e.g., id. at 39872 (“the regulation s provide w omen with
22

case 3:12-cv-00459-JD-CAN document 70-1 filed 10/11/13 page 23 of 28
access to contraceptive coverage”), and receive treatment as coverage under consumer protection requirements of the Public Health Service Act and ERISA. Id. at 39876. This coverage will not be contained in any insurance po licy separate from Biola’s plan. See id. (Am . Compl., DE 54, ¶ 155.)
144. By issuing their self-certifications, the Schools would be identifying their participating employees and students to the insure r or third-party adm inistrator for the distinct purpose of enabling th e government’s scheme to facilitate free access to a bortifacient services. (Am. Compl., DE 54, ¶ 156.)
145. The insurer’s obligation to make direct payments for abortifacient services would continue only “for so long as the participant or beneficiary remains enrolled in the plan.” 78 Fed. Reg. at 39876. (Am. Compl., DE 54, ¶ 157.)
146. Biola would have to coordinate with its insurer whenever it added or rem oved employees and beneficiaries from its healthcare plan and, as a direct and unavoidable result, from the abortifacient services payment scheme. (Am. Compl., DE 54, ¶ 158.)
147. Biola’s insurer is requ ired to notif y plan par ticipants and benef iciaries of the abortifacient payment benefit “contemporaneous with (to the extent possible) but separate from any application materials distributed in connection with enrollment” in a group health plan. 78 Fed. Reg. at 39876. (Am. Compl., DE 54, ¶ 159.)
148. This would also require Biol a to coordinate the notices with its insur er. (Am. Compl., DE 54, ¶ 160.)
149. Biola’s insurer would be required to pr ovide the abortifacient benefits “in a manner consistent” with the provision of othe r covered services. 78 Fed. Reg. at 39876-77. (Am. Compl., DE 54, ¶ 161.)
150. Thus, any payment or coverage disputes presumably would be resolved under the terms of the Biola’s existing plan documents. (Am. Compl., DE 54, ¶ 162.)
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case 3:12-cv-00459-JD-CAN document 70-1 filed 10/11/13 page 24 of 28
151. Thus, even under the accommodation, the Schools and every other non-exem pt objecting religious organization would continue to play a central role in facilitating free access to abortifacient services. (Am. Compl., DE 54, ¶ 163.)
152. The Schools’ decisions to offer he alth insurance (which the ACA’s em ployer mandate requires) and their self-cer tifications continue to serve as the sole trigge rs for creating access to free abortifacient services for em ployees and plan beneficiaries from the same insurer they are paying for their insurance plan. (Am. Compl., DE 54, ¶ 177.)
153. The Schools’ religious convictions forbid them from participating in any way in the government’s scheme to provi de free access to abortifacient se rvices through their health care plans. (Am. Compl., DE 54, ¶ 182.)
154. Dropping their insurance plans wou ld place the Schools at a severe co mpetitive disadvantage in their efforts to recruit and retain employees and students. (Am. Compl., DE 54, ¶ 183.)
155. The Final Mandate forces the Schools to deliberately provide health insurance that would facilitate free access to em ergency contraceptives, including Plan B and ella, regardless of the ability of insured persons to obtain thes e drugs f rom other sourc es. (Am. Compl., DE 54, ¶ 184.)
156. The Final Mandate forces the Schools to facilitate governm ent-dictated education and counseling concerning abortion that directly conflicts with their religious beliefs and teachings. (Am. Compl., DE 54, ¶ 185.)
157. Facilitating this governm ent-dictated speech directly un dermines the express speech and m essages concerning the sanctity of life that the Schools seek to co nvey. (Am. Compl., DE 54, ¶ 186.)
158. The required drugs, devices, and related se rvices to which the Schools object are widely available at non-prohibitive costs. (Am. Compl., DE 54, ¶ 189.)
159. Plan B is widely available for between $30 and $65. Ella is widely available for approximately $55. (Am. Compl., DE 54, ¶ 190.)
24

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160. There are numerous alternative mechanisms through which the government could

provide access to the objectio nable drugs and services w ithout conscripting objecting

organizations and their insurance plans in violation of their religious beliefs. (Am. Compl., DE

54, ¶ 191.)

161. For example, it could pay for the objec tionable services th rough its existing

network of family planning services funded under Title X, thr ough direct government payments,

or through tax deductions, refunds, or credits. (Am. Compl., DE 54, ¶ 192.)

162. In one form or another, the govern

ment also provides exem ptions for

grandfathered plans, 42 U.S.C. § 18011; 75 Fed. Reg. 41,726, 41,731 (2010), sm all employers

with fewer than 50 employees, 26 U.S.C. § 4980H(c)(2)(A), and certain religious denominations,

26 U.S.C. § 5000A(d)(2)(a)(i) an d (ii) (individual m andate does not apply to m embers of

“recognized religious sect or di vision” that co nscientiously objects to acceptance of public o r

private insurance funds). 26 U.S.C. § 5000A(d)(2)(b)(ii) (individual mandate does not apply to

members of “health care sharing m inistry” that meets certain criteria). (Am. Compl., DE 54, ¶

194.)

163. These broad exemptions further demonstrate the Schools could be exempted from

the Mandate without m easurably undermining any sufficiently important governmental interest

allegedly served by the Mandate. (Am. Compl., DE 54, ¶ 195.)

164. Employers who do not m ake modifications to their insuran ce plans that deprive

the plans of “grandfathered” status m ay continue to use those grandfathered plans indefinitely.

(Am. Compl., DE 54, ¶ 196.)

165. HHS itself has predicted that a majority of large employers, employing more than

50 million Americans, will continu e to use gra ndfathered plans until at leas t 2014, and that a

third of m edium-sized employers with betw een 50 and 100 e mployees may do l ikewise. 75

Fed. Reg. 34538 (June 17, 2010); see also http://web.archive.org/web/

20130620171510/http://www.healthcare.gov/news/factsheets/2010/06/keeping-the-health-plan-y

ou-have-grandfathered.html (archived version); https://www.cms.gov/CCIIO/Resources/Files/

25

case 3:12-cv-00459-JD-CAN document 70-1 filed 10/11/13 page 26 of 28
Factsheet_grandfather_amendment.html (noting that am endment to regulations “will result in a small increase in the number of plans retaining their grandfathered status relative to the estimates made in the grandfathering regulation”). (Am. Compl., DE 54, ¶ 197.)
166. The Final Mandate was prom ulgated by gove rnment officials, and supported by non-governmental organizations, who strongly oppose religious teac hings and beliefs regarding marriage, family, and life. (Am. Compl., DE 54, ¶ 203.)
167. Defendant Sebelius, for exam ple, has l ong been a staunch supporter of abortion rights and a vocal critic of relig ious teachings and beliefs regarding abortion and contraception. (Am. Compl., DE 54, ¶ 204.)
168. On October 5, 2011, si x days after the comm ent period for the original interim final rule ended, Defendant Sebelius gave a speech at a fundraiser f or NARAL Pro-Choic e America. She told the assembled crowd that “we are in a war.” (Am. Compl., DE 54, ¶ 205.)
169. She further criticized in dividuals and entities whose be liefs differed from those held by her and the others at the fundraiser, stating: “Wouldn’t you think that people who want to reduce the number of abortions would champion the cause of widely available, widely affordable contraceptive services? Not so much.” (Am. Compl., DE 54, ¶ 206.)
170. On July 16, 2013, Secretary Sebelius further com pared opponents of the Affordable Care Act generally to “people wh o opposed civil rights legi slation in the 1960s,” stating that upholding the Act requires the sam e action as was shown “in the fight against lynching and the fight for desegregation.” See http://www.hhs.gov/secretary/about/speeches/ sp20130716.html. (Am. Compl., DE 54, ¶ 207.)
Respectfully submitted this 11th day of October, 2013.
/s Gregory S. Baylor Gregory S. Baylor (Texas Bar No. 01941500) Matthew S. Bowman (DC Bar No. 993261) ALLIANCE DEFENDING FREEDOM
26

case 3:12-cv-00459-JD-CAN document 70-1 filed 10/11/13 page 27 of 28
801 G Street, NW, Suite 509 Washington, DC 20001 (202) 393-8690 (202) 347-3622 (facsimile) gbaylor@alliancedefendingfreedom.org mbowman@alliancedefendingfreedom.org
David A. Cortman (Georgia Bar No. 188810) ALLIANCE DEFENDING FREEDOM 1000 Hurricane Shoals Road, NE, Suite D-1100 Lawrenceville, GA 30043 (770) 339-0774 (770) 339-6744 (facsimile) dcortman@alliancedefendingfreedom.org
Kevin H. Theriot (Kansas Bar No. 21565) ALLIANCE DEFENDING FREEDOM 15192 Rosewood Leawood, KS 66224 (913) 685-8000 (913) 685-8001 (facsimile) ktheriot@alliancedefendingfreedom.org
Jerry Mackey (California Bar No.90416) 13800 Biola Avenue La Mirada, CA 90639 (562) 903-4777 (562) 903-4748 (facsimile) university.legalcounsel@biola.edu
Jane Dall Wilson (Atty No. 24142-71A) FAEGRE BAKER DANIELS LLP 300 North Meridian Street, Suite 2700 Indianapolis, IN 46204 (317) 237-0300 (317) 237-1000 (facsimile) jane.wilson@faegrebd.com
Attorneys for Plaintiffs
27

case 3:12-cv-00459-JD-CAN document 70-1 filed 10/11/13 page 28 of 28 CERTIFICATE OF SERVICE
I hereby certify that on Oct ober 11, 2013 I electronically f iled the foregoing with the Clerk of Court using the CM/ECF system which will sen d notification of such filing to a ll counsel of record.
s/ Gregory S. Baylor
28

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION

GRACE SCHOOLS, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

KATHLEEN SEBELIUS, in her official capacity )

as Secretary of the U.S. Department of Health and )

Human Services, et al.,

)

)

Defendants.

)

Case No. 3:12-CV-459 JD

Memorandum Opinion and Order

Plaintiffs Grace Schools (hereinafter, “Grace”) and Biola University, Inc. (hereinafter,

“Biola”) have filed their first amended verified complaint [DE 54] seeking declaratory and

injunctive relief claiming that the government defendants have violated their rights under the

Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb et seq., the First

Amendment of the Constitution of the United States, and the Administrative Procedure Act, 5

U.S.C. § 500 et seq., by enacting the “contraception mandate” which requires certain employers

to provide coverage for contraception and sterilization procedures in their employee health care

plans on a no-cost-sharing basis, or face stiff financial penalties and the risk of enforcement

actions for the failure to do so. Although the defendants have since moved to dismiss the

amended complaint and the parties have sought summary judgment on the various claims

presented [DE 60; DE 69], the Court focuses only on plaintiffs’ request for injunctive relief and

defendants’ objection thereto,1 in an effort to prevent the possibility of any unjust enforcement of

1The Court previously advised the parties as to how this complex litigation would proceed [DE 57] and the parties have filed their briefs consistent with the Court’s scheduling order [DE 52]. The Court has also carefully considered the supplemental notices of authority

the contraception mandate against plaintiffs come the first of the year.2 For the reasons that follow, plaintiffs have shown that their RFRA claim stands a
reasonable likelihood of success on the merits, that irreparable harm will result without adequate remedy absent an injunction, and that the balance of harms favor protecting the religious-liberty rights of the plaintiffs. As such, the Court enters a preliminary injunction barring enforcement of the contraception mandate against Grace and Biola.
I. Background The Contraception Mandate
Under the Patient Protection and Affordable Care Act (ACA), employment-based group health plans covered by the Employee Retirement Income Security Act must provide certain types of preventive health services. See 42 U.S.C. § 300gg–13; 29 U.S.C. § 1185d. One provision mandates coverage, without cost-sharing by plan participants or beneficiaries, of “preventive care and screenings” for women “as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [HRSA].” 42 U.S.C. § 300gg–13(a)(4). The HRSA, an agency of the U.S. Department of Health and Human Services (HHS), then delegated the task of developing appropriate preventive-services guidelines to the Institute of Medicine (IOM), an arm of the National Academy of Sciences funded by Congress to provide the government with independent expert advice on matters of public health. After
and responses filed by counsel, along with the amicus curiae briefs filed by counsel for the Liberty, Life and Law Foundation, the American Civil Liberties Union, the American Center for Law & Justice, and Regent University.
2Grace’s employee health care plan begins on January 1, 2014, while Biola’s employee health care plan begins shortly thereafter on April 1, 2014 [DE 54 at ¶ 179], and their student plans begin in the Summer of 2014. Id. at ¶ 181.
2

reviewing the type of preventive services necessary for women’s health and well-being, the IOM recommended that the following preventive services be required for coverage: annual well-woman visits; screening for gestational diabetes and breast-feeding support, supplies, and counseling; human papillomavirus screening; screening and counseling for sexually transmitted infections and human immune-deficiency virus; screening and counseling for interpersonal and domestic violence; and contraceptive education, methods, and services so that women can better avoid unwanted pregnancies and space their pregnancies to promote optimal birth outcomes. See IOM, Clinical Preventive Services for Women: Closing the Gaps, http://www.iom.edu/Reports/ 2011/Clinical-Preventive-Services-for-Women-Closing-the-Gaps.aspx (last visited Dec. 9, 2013). Based on the IOM’s recommendations, the HRSA issued comprehensive guidelines requiring coverage of (among other things) “[a]ll Food and Drug Administration [FDA] approved contraceptive methods, sterilization procedures, and patient education and counseling3 for all women with reproductive capacity.” HRSA, Women’s Preventive Services Guidelines: Affordable Care Act Expands Prevention Coverage for Women’s Health and Well–Being, http://www.hrsa.gov/womensguidelines/ (last visited Dec. 9, 2013). These include hormonal methods such as oral contraceptives (the pill), implants and injections, barrier methods, intrauterine devices, and emergency oral contraceptives (Plan B and Ella).4 See FDA, Birth
3The defendants clarify that this requirement does not indicate that such education and counseling need necessarily be ‘in support of’ certain contraception services or contraception in general.
4As the government points out, the list of FDA approved contraceptive methods does not include abortion, however, the terms “abortifacients” or “abortion inducing drugs” as used throughout this opinion refers to plaintiffs’ characterization of contraception that artificially interferes with life and conception in violation of their religious beliefs.
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Control: Medicines To Help You, http://www.fda.gov/ForConsumers/ByAudience/ForWomen/ FreePublications/ucm313215.htm (lasted visited Dec. 9, 2013). On February 15, 2012, HHS published final regulations incorporating the HRSA guidelines. 77 Fed. Reg. 8725 (Feb. 15, 2012). The agency made the mandate effective in the first plan year on or after August 1, 2012, see 45 C.F.R. § 147.130(b)(1), however, a temporary enforcement safe harbor for nonexempt nonprofit religious organizations that objected to covering contraceptive services was also created, making the mandate effective in the first plan year on or after August 1, 2013 for those qualifying organizations who did not meet the religious employer exemption. 77 Fed. Reg. 872829. The government then undertook new rulemaking during the safe harbor period to adopt new regulations applicable to non-grandfathered5 nonprofit religious organizations with religious objections to covering contraceptive services. Id.
On March 21, 2012, the government issued an Advance Notice of Proposed Rulemaking that stated it was part of the government’s effort “to develop alternative ways of providing contraceptive coverage without cost sharing in order to accommodate non-exempt, nonprofit religious organizations with religious objections to such coverage.” 77 Fed. Reg. 16,501, 16,503 (Mar. 21, 2012). On February 1, 2013, the government issued a Notice of Proposed Rulemaking (NPRM), setting forth a proposal that stated it was to “amend the criteria for the religious employer exemption to ensure that an otherwise exempt employer plan is not disqualified
5“Grandfathered” plans are those health plans that do not need to comply with the ACA’s coverage requirements because they were in existence when the ACA was adopted and did not make certain changes to the terms of the plan. 42 U.S.C. § 18011. The purpose of grandfathering plans was to allow individuals to maintain their current health insurance plan, to reduce short term disruptions in the market, and to ease the transition to market reforms that phase in over time. See 75 Fed. Reg.. 34,546 (June 17, 2010). The number of grandfathered plans is expected to decline over time.
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because the employer’s purposes extend beyond the inculcation of religious values or because the employer serves or hires people of different religious faiths,” and to “establish accommodations for health coverage established or maintained by eligible organizations, or arranged by eligible organizations that are religious institutions of higher education, with religious objections to contraceptive coverage.” See 78 Fed. Reg. 8456 (Feb. 6, 2013). On June 28, 2013, the government issued final rules adopting and/or modifying the proposals in the NPRM. See 78 Fed. Reg. 39,870. The regulations challenged here (the “final rules”) include the new regulations issued by the government and applicable to non-grandfathered, nonprofit religious organizations with religious objections to covering contraceptive services. See 78 Fed. Reg. 39,870.
The final rules state that they “simplify[ied] and clarify[ied]” the definition of “religious employer.” 78 Fed. Reg. 39,871. Under the new definition, an exempt “religious employer” is an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended. 78 Fed. Reg. 39,874 (codified at 45 C.F.R. § 147.131(a)). The groups that are “refer[red] to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code,” are “churches, their integrated auxiliaries, and conventions or associations of churches” and “the exclusively religious activities of any religious order.” 26 U.S.C. § 6033(a)(3)(A)(i), (iii). The new definition of “religious employer” does “not expand the universe of religious employers that qualify for the exemption beyond that which was intended in the 2012 final regulations.” 78 Fed. Reg. 39,874 (citing 78 Fed. Reg. 8461). The 2013 final rules’ amendments to the religious employer exemption apply to group health plans and group health insurance issuers for plan years beginning on or after
5

August 1, 2013. See id. at 39,871.
The 2013 final rules also included an “accommodation” regarding the contraceptive
coverage requirement for group health plans, as well as student health plans, established or
maintained by “eligible organizations.” 78 Fed. Reg. 39,874–80; 45 C.F.R. § 147.131(b)-(f). An
“eligible organization” is an organization that satisfies the following criteria:
(1) The organization opposes providing coverage for some or all of any contraceptive services required to be covered under § 147.130(a)(1)(iv) on account of religious objections.
(2) The organization is organized and operates as a nonprofit entity. (3) The organization holds itself out as a religious organization. (4) The organization self-certifies, in a form and manner specified by the
Secretary, that it satisfies the criteria in paragraphs (b)(1) through (3) of this section, and makes such self-certification available for examination upon request by the first day of the first plan year to which the accommodation in paragraph (c) of this section applies. The self-certification must be executed by a person authorized to make the certification on behalf of the organization, and must be maintained in a manner consistent with the record retention requirements under section 107 of the Employee Retirement Income Security Act of 1974.
45 C.F.R. § 147.131(b); see also 78 Fed. Reg. 39,874-75. The 2013 final rules state that an
eligible organization is not required “to contract, arrange, pay, or refer for contraceptive
coverage” to which it has religious objections. 78 Fed. Reg. 39,874. To be relieved of the
obligations that otherwise apply to non-grandfathered, nonexempt employers, the 2013 final
rules require that an eligible organization complete a self certification form, certifying that it is
an eligible organization, sign the form, and provide a copy of that self-certification to its issuer
or third party administrator (TPA). Id. at 39,878–79. In the case of an organization with an
insured group health insurance issuer, upon receipt of the self certification, the organization’s
health insurance issuer must provide separate payments to plan participants and beneficiaries for
contraceptive services without cost sharing, premium, fee, or other charge to plan participants or
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beneficiaries, or to the eligible organization or it’s plan. Id. at 39,875–77. The government expects that its insurers will have options to achieve cost neutrality, including by way of cost savings from improvements in women’s health and fewer pregnancies, and by including the cost of contraceptive services as an administrative cost that is spread across the issuer’s entire risk pool (excluding plans established or maintained by eligible organizations). Id. at 39,877-78. In the case of an organization with a self-insured group health plan, upon receipt of the self certification, the organization’s TPA is designated as plan administrator and claims administrator for purposes of providing or arranging separate payments for contraceptive services without cost sharing, premium, fee, or other charge to plan participants or beneficiaries, or to the eligible organization or it’s plan. Id. at 39,879–80. Under the 2013 final rules, costs incurred by TPAs relating to the coverage of contraception services for employees and students of eligible organizations can be reimbursed through an adjustment to Federally-Facilitated Exchange user fees. See 78 Fed. Reg. 39,880. The contraceptive services provided are directly tied to the employer’s insurance policy, and are available only so long as the employees/students are enrolled in the organization’s health plan. 45 C.F.R. § 147.131(c). The 2013 final rules’ “accommodation” applies to group health plans and health insurance issuers for plan years beginning on or after January 1, 2014. 78 Fed. Reg. 39,872.
Ultimately, several exemptions from the ACA’s coverage requirements have survived the law’s revisions, including exemptions for smaller employers—those with fewer than fifty full time employees, 26 U.S.C. § 4980H, and employer health plans that are grandfathered, 42 U.S.C. § 18011. In addition, religious employers meeting the narrow definition of religious employer are exempted from the contraceptive coverage requirement. 45 C.F.R. § 147.131(a). A
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noncomplying employer who does not meet an exemption will face large fines, specifically, $2,000 per year per full time employee (less 30 employees) for not providing insurance meeting the coverage requirements, 26 U.S.C. § 4980H(c), or $100 per day per employee for providing insurance that excludes the coverage required by the contraception mandate, 26 U.S.C. § 4980D, and will face the risk of other enforcement actions.
As detailed below, Grace and Biola do not meet any of these exemptions; rather, they meet the “accommodation” created for nonprofit religiously affiliated employers, which the Seventh Circuit has characterized as “an attempted workaround whereby the objecting employer gives notice to its insurance carrier and the insurer issues a separate policy with the mandated coverage.” Korte v. Sebelius, 735 F.3d 654, 662 (7th Cir. 2013) (Rovner, J., dissenting). The plaintiffs argue that compliance with the contraception mandate, even via the accommodation, violates their religious exercise rights. The Plaintiffs
The presidents of Grace Schools and Biola University, Inc. have verified the facts applicable to their claims and request for injunctive relief [DE 54]6. Both Grace and Biola are not for profit Christ-centered institutions of higher learning. Id. at ¶¶ 2, 10-11. To fulfill their religious commitments and duties in a Christ-centered educational context, plaintiffs promote the spiritual and physical well-being and health of their employees and students, which includes the provision of health insurance to their employees and students. Id. at ¶¶ 43, 68.
6The verified complaint serves as the equivalent of an affidavit and, unless specifically noted herein, the defendants do not contest these facts, which are admitted for preliminary injunction purposes. See IDS Life Ins. Co. v. SunAmerica Life Ins. Co., 136 F.3d 537, 542 (7th Cir. 1998). In addition, no hearing was necessary given the controversy was controlled by the undisputed facts detailed in this order.
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Grace College and Seminary, located in Winona Lake, Indiana, was founded in 1937 and
has a mission to be “an evangelical Christian community of higher education which applies
biblical values in strengthening character, sharpening competence, and preparing for service”
and pursues its mission through biblically-based programs and services founded in the historic
Fellowship of Grace Brethren Churches [DE 54 at ¶¶ 21, 24, 26]. Grace embraces Christian core
values, its students, administration, faculty, and staff aim together to make Christ preeminent in
all things, id. at ¶¶ 22-23, and Grace has a “Covenant of Faith” that is consistent with the beliefs
of the Fellowship of Grace Brethren Churches which affirms biblical truth and God’s grace. Id.
at ¶¶ 25, 27. Members of Grace’s Board of Trustees, which governs the College, must subscribe
annually to the Covenant of Faith, and Grace draws its faculty, staff, and administration from
among those who profess the Covenant of Faith. Id. at ¶¶ 27-28. Although Grace does not
require student membership in the Grace Brethren denomination, it does require a profession of
faith as a prerequisite for student admission and students are expected to adhere to the standards
set forth in the Grace community and lifestyle statement. Id. at ¶ 29. Through its Fall 2013
“Statement on Community Expectations for Faculty and Staff,” members of the Grace
community agree to uphold the standards of the community, which in pertinent part states:
Grace Schools values the worth and dignity of human life as expressed through the fruit of the Spirit. Having been made in the image of God, those who live and work at the institution express like faith and are expected to respect and uphold life-affirming practices that distinguish our faith community from other institutions of higher education, particularly for those who are vulnerable members of society. Consistent with the views of the Fellowship of Grace Brethren Churches, Grace Schools believes that human life is worthy of respect and protection at all stages from the time of conception. The sanctity of human life is established by creation (Genesis 1:26-27), social protection (Genesis 9:6) and redemption (John 3:16).
[DE 54 at ¶¶ 36-37]. Further, the Fellowship of Grace Brethren Churches believes that human
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life is worthy of protection and respect at all stages from the time of conception (or fertilization), and Grace has the religious view that the procurement, participation in, facilitation of, or payment for abortion (including abortion-causing drugs) violates the Sixth Commandment and is inconsistent with the dignity conferred by God on creatures made in His image. Id. at ¶¶ 32-35.
Consistent with its religious commitments, Grace provides a self-insured group plan for its employees, acting as its own insurer but working with a third-party claims administrator [DE 54 at ¶ 44]. Under the terms of Grace’s plan for its employees, coverage excludes abortifacient drugs, however, the employee plan does include a variety of contraceptive methods that Grace does not consider to be morally objectionable. Id. at ¶¶ 46-47. In addition, Grace requires all registered residential students to have health insurance, and if a student does not submit proof of coverage, Grace will enroll the student in a health insurance plan issued by Gallagher Koster and bill enrolled students for the cost of the coverage. Id. at ¶ 50. Grace’s student plan does not include coverage for abortifacient drugs and related counseling to which it morally objects. Id.
Grace currently has approximately 457 employees and 3,100 students [DE 54 at ¶¶ 3031]. Approximately 168 employees are enrolled in Grace’s group health plan, along with approximately 307 dependents. Id. at ¶ 45. In the 2013-2014 school year, approximately 60 students enrolled in the student insurance plan facilitated by Grace. Id. at ¶ 50.
Biola University, located in La Mirada, California, was founded in 1908 as the Bible Institute of Los Angeles and has a mission to provide biblically or Christ-centered education, scholarship and service—equipping men and women in mind and character to impact the world for the Lord Jesus Christ [DE 54 at ¶¶ 51-52, 55, 57-60]. Biola’s vision is to be an exemplary Christian university and believes that all it does should be Christ-centered. Id. at ¶¶ 53, 55.
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Biola also believes that God uses its faculty, staff, students, and alumni to accomplish God’s plans, and draws its faculty, staff, and students from among those who profess faith in Christ. Id. at ¶¶ 56, 61.
Biola’s “Doctrinal Statement” declares that “[t]he Bible is clear in its teaching on the sanctity of life. Life begins at conception. We reject the destruction or termination of innocent human life through human intervention in any form after conception including, but not limited to, abortion, infanticide or euthanasia because it is unbiblical and contrary to God’s will. Life is precious and in God’s hands.” [DE 54 at ¶ 65]. The Biola Employee Handbook, in a section entitled “Standard of Conduct,” states in part as follows: “Consistent with the example and command of Jesus Christ, we believe that life within a Christian community must be lived to the glory of God, with love for God and for our neighbors . . .[t]o this end, members of the Biola community are not to engage in activities that Scripture forbids. Such activities include . . . the destruction or termination of innocent human life through human intervention in any form after conception including, but not limited to, abortion, infanticide or euthanasia.” Id. at ¶ 66. In addition, Biola’s undergraduate Student Handbook provides in relevant part: “The University wants to assist those involved in unplanned pregnancy while at Biola to consider the options available to them within the Christian moral framework. These include marriage of the parents, single parenthood, or offering the child for adoption. Because the Bible is clear in its teaching on the sanctity of human life, life begins at conception; we abhor the destruction of innocent life through abortion on demand. Student Development stands ready to help those involved to cope effectively with the complexity of needs that a crisis pregnancy presents.” Id. at ¶ 67.
Biola offers two medical insurance plans to regular employees who work at least 30
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hours per week, for at least ten months of the year—one plan is through Kaiser, while the other is through Blue Shield [DE 54 at ¶¶ 69-70]. Biola has approximately 856 full time, benefit-eligible employees, and approximately 1,835 individuals are covered under its two employee health insurance plans. Id. at ¶ 71.
Prior to April 1, 2012, the former Anthem Blue Cross plan and the Kaiser plan did cover all FDA-approved contraceptives, but the inclusion of abortion-inducing drugs was neither knowing nor intentional on Biola’s part. Id. at ¶¶ 73, 75. Since April 1, 2012, the Blue Shield plan has not covered abortion-inducing drugs, but it does provide coverage of other drugs characterized by the FDA as “contraceptives.” Id. at ¶ 74. Also since April 1, 2012, the Kaiser plan has not covered any contraceptives, but employees can receive coverage of non-abortifacient prescription contraceptive drugs through Script Care, a pharmacy benefits manager. Id. at ¶ 75.
Biola requires its students to have health insurance coverage and facilitates health insurance through United Health Care for its students who are not otherwise covered by health insurance [DE 54 at ¶ 76]. While Biola does not indicate the number of students enrolled in its health plan, it currently has approximately 6,323 students. Biola University, Five Year Enrollment Summary 2009-2013 Summary, http://www.biola.edu/registrar/research_ reporting/5_year_enrollment/5_Year_Enrollment_Summary.pdf (last visited Dec. 15, 2013). Students who enroll in the plan pay the premium to Biola and then Biola remits payment to the carrier on behalf of the students [DE 54 at ¶ 76]. Ella and Plan B are excluded from this plan. Id.
Although Grace and Biola were protected by the safe harbor which was extended through the end of 2013, their employee and student health plans must comply with the contraception
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mandate thereafter, id. at ¶¶ 48, 116-18, 150, 179, 181, 275, because plaintiffs do not meet the religious employer exemption and their health plans are not grandfathered. Id. at ¶¶ 3, 49, 72, 143-144. Specifically, Grace’s employee and student health plans are subject to the contraception mandate on January 1, 2014 and July 25, 2014, respectively, and Biola’s employee and student health plans are subject to the mandate on April 1, 2014 and August 1, 2014, respectively. Id. at ¶¶ 48, 179, 181. However, the plaintiffs are eligible for the accommodation. Id. at ¶ 148.
As plaintiffs profess their religious beliefs, compliance with the accommodation violates their free exercise rights because it forces the plaintiffs to obtain insurance and certify a form that specifically requires an issuer or TPA to provide coverage for the objectionable contraceptive services as a direct consequence of the health benefits provided by the plaintiffs [DE 54 at ¶¶ 5, 133] (claiming that the accommodation forces plaintiffs to deliberately provide health insurance that will trigger7 access to abortion inducing drugs and related education and counseling). In other words, by invoking the accommodation and executing the self certification, plaintiffs would initiate the insurance coverage of morally objectionable contraceptive services [DE 54 at ¶¶ 152-55]. And by issuing the self certification, the plaintiffs would be identifying their participating employees and students to the TPA/issuer for the distinct purpose of enabling the government’s scheme to facilitate free access to abortifacient services, to which plaintiffs would have to continue to play a central role in facilitating. Id. at ¶¶ 156-63.
7Defendants dispute that the regulations require plaintiffs to “trigger” or “facilitate” the provision of contraceptive services to which plaintiffs object; however, defendants acknowledge that this is plaintiffs’ characterization of what the mandate requires of them were the plaintiffs to complete the self-certification form and provide a copy of it to their issuer/TPA.
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The government contends that even prior to the ACA’s passage, Grace and Biola would have had to provide notice to their issuers/TPAs indicating that their insurance plans should exclude coverage for objectionable contraceptive services. However, the government makes the contention without providing any evidence of what type of notice was previously given by plaintiffs to their insurers/TPAs, if any, for the exclusion of particular services.
Plaintiffs contend that they strongly believe that God has condemned the intentional destruction of innocent human life and, as a matter of religious conviction, it would be sinful and immoral for them to intentionally participate in, pay for, facilitate, enable, or otherwise support access to abortion or the use of drugs that can (and do) destroy human life in the womb—which the accommodation permits. Id. at ¶¶ 2, 175-78. On the other hand, refusing to offer insurance (which plaintiffs allege transgresses their religious duty to provide for the well-being of their employees and students) or refusing to comply with the contraception mandate, would cause them to face enormous fines that would financially devastate their operations and undermine their mission. Id. at ¶¶ 7, 179-81.
Plaintiffs also represent that rather than imposing the burden of the accommodation upon them, there are alternative mechanisms through which the government could provide access to the objectionable contraceptive services [DE 54 at ¶¶ 189-92]. For instance, plaintiffs argue that the government could provide contraceptive services through direct government payments, or through tax deductions, refunds or credits. Id. at ¶¶ 191-93. Moreover, plaintiffs argue that the government’s interests in pursuing the mandate can hardly be compelling or pursued by the least restrictive means where it has excluded millions of employers from the ACA’s requirements, including those employers who are grandfathered, 42 U.S.C. § 18011, or have fewer than 50
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employees, 26 U.S.C. § 4980H; and where the government has included an exemption from the
contraception mandate for those deemed religious employers, 45 C.F.R. § 147.131(a). Id. at ¶¶
194-202. Plaintiffs argue that these broad exemptions further demonstrate that they could also
be exempted from the requirements of the contraception mandate without measurably
undermining any sufficiently important governmental interest served by the mandate. Id. at ¶
195.
II. Preliminary Injunction Standard
To obtain a preliminary injunction, the moving party must demonstrate that (1) it has no
adequate remedy at law and will suffer irreparable harm if a preliminary injunction is denied;
and (2) there is some likelihood of success on the merits of the claim. See Ezell v. City of
Chicago, 651 F.3d 684, 694 (7th Cir. 2011). If the moving party meets this threshold burden, the
court weighs the competing harms to the parties if an injunction is granted or denied and also
considers the public interest. See Planned Parenthood of Ind., Inc. v. Comm'r of the Ind. State
Dep't of Health, 699 F.3d 962, 972 (7th Cir. 2012); Ezell, 651 F.3d at 694. This equitable
balancing proceeds on a sliding-scale analysis; the greater the likelihood of success on the merits, the less heavily the balance of harms must tip in the moving party's favor.8 See Planned
Parenthood, 699 F.3d at 972. The aim is to minimize the costs of a wrong decision. See Stuller,
8As an aside, the government noted an objection to applying the sliding scale approach, arguing that the approach is inconsistent with the Supreme Court’s holding in Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008) requiring a plaintiff to show all of the preliminary injunction factors. But the government also recognized that the undersigned is nonetheless bound to apply the Seventh Circuit’s sliding scale approach to an injunction. In fact, the Seventh Circuit has recently determined that its sliding scale approach is “a variant of, though consistent with, the Supreme Court's recent formulations of the standard . . .” Planned Parenthood of Wisc., Inc. v. Van Hollen, No. 13-2726, 2013 WL 6698596 (7th Cir. Dec. 20, 2013) (citing Winter, 555 U.S. at 20).
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Inc. v. Steak N Shake Enters., Inc., 695 F.3d 676, 678 (7th Cir. 2012). The appropriateness of a preliminary injunction in this case rests on plaintiffs’ RFRA
claim and presents the following issues: does the contraception mandate and accommodation provided substantially burden the religious exercise rights of the plaintiffs, and if so, has the government discharged its burden of justifying its regulations under strict scrutiny. Here, plaintiffs have shown some likelihood of success on the merits of their RFRA claim, that no adequate remedy at law exists, and that they will suffer irreparable harm without an injunction. And, a weighing of the injunction equities and consideration of the public interest also strongly supports issuance of an injunction at this stage of the litigation.
III. Analysis To begin, for purposes of determining whether a preliminary injunction is appropriate in the instant case, no one questions that the issues presented based on the 2013 final rules are ripe for ruling, that the threat of financial penalty and other enforcement action is sufficient to establish the plaintiffs’ standing to challenge the accommodation, and that plaintiffs—nonprofit religious organizations—exercise religion in the sense that their activities are religiously motivated. The Court will thus consider the appropriateness of injunctive relief in the instant case. Success on the Merits of the RFRA Claim The RFRA prohibits the federal government from placing substantial burdens on “a person’s exercise of religion,” 42 U.S.C. § 2000bb–1(a), unless it can demonstrate that applying the burden is “in furtherance of a compelling government interest” and is the “least restrictive means of furthering that compelling governmental interest,” id. § 2000bb–1(b). RFRA creates a
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broad statutory right to case-specific exemptions from laws that substantially burden religious exercise even if the law is neutral and generally applicable, unless the government can satisfy the compelling-interest test. Korte, 735 F.3d at 671-72 (reasoning that with RFRA, Congress expressly required accommodation rather than neutrality) (citation and quotation marks omitted). RFRA is structured as a “sweeping ‘super-statute,’ cutting across all other federal statutes (now and future, unless specifically exempted) and modifying their reach.” Id. at 673 (quoting Michael Stokes Paulsen, A RFRA Runs Through It: Religious Freedom and the U.S. Code, 56 Mont. L. Rev. 249, 253 (1995)).
Once a RFRA claimant makes a prima facie case that the application of a law or regulation substantially burdens his religious practice, the burden shifts to the government to justify the burden under strict scrutiny. Id. (citing Gonzales v. O Centro Espirita, 546 U.S. 418, 428 (2006)). “Congress’s express decision to legislate the compelling interest test indicates that RFRA challenges should be adjudicated in the same manner as constitutionally mandated applications of the test . . .”. Id. (citing O Centro Espirita, 546 U.S. at 430). Thus, in RFRA litigation, as in First Amendment litigation, “the burdens at the preliminary injunction stage track the burdens at trial.” Id. (citing O Centro Espirita, 546 U.S. at 429).
1. Substantial Burden While neither the United States Supreme Court nor any Circuit Courts have had the opportunity to consider whether the contraception mandate creates a substantial burden on a nonsecular, nonprofit organization’s religious exercise rights given the “accommodation” created for
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eligible organizations,9 the Seventh Circuit recently discussed in Korte the substantial burden
analysis in the context of RFRA:
Recall that “exercise of religion” means “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc–5(7)(A) (emphases added). At a minimum, a substantial burden exists when the government compels a religious person to “perform acts undeniably at odds with fundamental tenets of [his] religious beliefs.” Wisc. v. Yoder, 406 U.S. 205, 218, 92 S.Ct. 1526 (1972). But a burden on religious exercise also arises when the government “put[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs.” Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 718, 101 S.Ct. 1425 (1981); see also Nelson v. Miller, 570 F.3d 868, 878 (7th Cir. 2009); Koger v. Bryan, 523 F.3d 789, 799 (7th Cir. 2008). Construing the parallel provision in RLUIPA, we have held that a law, regulation, or other governmental command substantially burdens religious exercise if it “bears direct, primary, and fundamental responsibility for rendering [a] religious exercise . . . effectively impracticable.” Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003). The same understanding applies to RFRA claims.
Importantly, the substantial-burden inquiry does not invite the court to determine the centrality of the religious practice to the adherent's faith; RFRA is explicit about that. And free-exercise doctrine makes it clear that the test for substantial burden does not ask whether the claimant has correctly interpreted his religious
9In fact, not many district courts have had the opportunity to consider this question relative to nonprofit religious organizations, and their conclusions vary. Three courts have upheld the accommodation. See Catholic Diocese of Nashville v. Sebelius, No. 3:13-01303 (M.D. Tenn. Dec. 26, 2013); University of Notre Dame v. Sebelius, No. 3:13-cv-1276-PPS-CAN (N.D. Ind. Dec. 20, 2013) (Simon, C.J.); Priests for Life v. U.S. Dep’t of Health & Human Servs., No. 1:13-cv-01261-EGS (D.D.C. Dec. 19, 2013). While the other courts have found the accommodation to pose a substantial burden. See Geneva College v. Sebelius, No. 12-0207 (W.D. Pa. Dec. 23, 2013); Southern Nazarene Univ. v. Sebelius, No. CIV-13-1015-F (W.D. Okla. Dec. 23, 2013); Legatus v. Sebelius, No. 12-12061, 2013 WL 6768607 (E.D. Mich. Dec. 20, 2013); Roman Catholic Archdiocese of New York v. Sebelius, No. 1:12-cv-02542-BMC, 2013 WL 6579764 (E.D.N.Y. Dec. 16, 2013); Zubik (and Persico) v. Sebelius, Nos. 13cv1459 and 13cv0303, 2013 WL 6118696 (W.D. Pa. Nov. 21, 2013); Geneva College v. Sebelius, No. 2:12cv-00207, 2013 WL 3071481 (W.D. Pa. June 18, 2013); see also Roman Catholic Archbishop of Washington v. Sebelius, No. 13-1441 (ABJ), 2013 WL 6729515 (D.D.C. Dec. 20, 2013) (drawing a distinction between self insured and group insured plans and granting a preliminary injunction only with respect to a self insured plaintiff despite the fact that all eligible organizations are confronted with the self certification process created by the accommodation).
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obligations. See United States v. Lee, 455 U.S. 252, 257, 102 S.Ct. 1051 (1982); Thomas, 450 U.S. at 715–16, 101 S.Ct. 1425. Indeed, that inquiry is prohibited. “[I]n this sensitive area, it is not within the judicial function and judicial competence to inquire whether the [adherent has] correctly perceived the commands of [his] . . . faith. Courts are not arbiters of scriptural interpretation.” Thomas, 450 U.S. at 716, 101 S.Ct. 1425. It is enough that the claimant has an “honest conviction” that what the government is requiring, prohibiting, or pressuring him to do conflicts with his religion. Id.; see also id. at 715, 101 S.Ct. 1425 (“Thomas drew a [religious] line, and it is not for us to say that the line he drew was an unreasonable one.”).
Checking for sincerity and religiosity is important to weed out sham claims. The religious objection must be both sincere and religious in nature. Cf. United States v. Seeger, 380 U.S. 163, 184–86, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965) (military-conscription exemption applies only to objections based on sincerely held religious beliefs as opposed to philosophical views or a personal moral code). These are factual inquiries within the court's authority and competence. But we agree with our colleagues in the Tenth Circuit that the substantial-burden test under RFRA focuses primarily on the “intensity of the coercion applied by the government to act contrary to [religious] beliefs.” Hobby Lobby Stores, Inc., v. Sebelius, 723 F.3d 114, 1137 (10th Cir. 2013). Put another way, the substantial-burden inquiry evaluates the coercive effect of the governmental pressure on the adherent's religious practice and steers well clear of deciding religious questions.
Korte, 735 F.3d at 682-83. With these principles in mind, the Seventh Circuit determined, in
relevant part, that it was a substantial burden on the for profit company plaintiffs and their
owners to require them to purchase or provide the required contraception coverage (or self-
insure for these services). Korte, 735 F.3d at 668.
In the instant case, the government defendants posit that Korte and other similar for profit
plaintiff cases, see, e.g., Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013);
Gilardi v. U.S. Dep't of Health & Human Servs., 733 F.3d 1208 (D.C. Cir. 2013), are
distinguishable because the burden on Grace and Biola to comply with the accommodation is
merely de minimus where plaintiffs would barely have to modify their behavior by complying
with the purely administrative self certification requirement which should take a matter of
19

minutes. Moreover, the government believes that any burden cast upon Grace and Biola is too attenuated to constitute a substantial burden.
The Court acknowledges that the burden on Grace and Biola to complete and submit a self certification is different than the burden imposed on the Korte plaintiffs. Simply put, Grace and Biola are not required “to contract, arrange, pay, or refer for contraceptive coverage” to which it has religious objections, 78 Fed. Reg. 39,874. Rather the plaintiffs must complete a self certification form stating that each is an eligible organization which objects to providing the contraceptive coverage on religious grounds and provide a copy of that self certification to its issuer or TPA, so that the payment for the services can then be provided or arranged for by the issuer or TPA at no cost to Grace or Biola. 45 C.F.R. § 147.131(b); 78 Fed. Reg. 39,874-75. But even so, the Court cannot agree with the government that Biola and Grace have not shown at least some reasonable likelihood of success on the merits relative to the showing of a substantial burden as defined in Korte.
According to the Seventh Circuit, the pertinent inquiry for the substantial burden test under RFRA is whether the claimant has an honest conviction that what the government is requiring or pressuring him to do conflicts with his religious beliefs and whether the governmental pressure exerts a sufficiently coercive influence on the plaintiffs’ religious practice. Korte, 735 F.3d at 683; see Hobby Lobby, 723 F.3d at 1137 (“Our only task is to determine whether the claimant’s belief is sincere, and if so, whether the government has applied substantial pressure on the claimant to violate that belief.”); Gilardi, 733 F.3d at 1217-18 (“ . . . the burden becomes substantial because the government commands compliance by giving the Gilardis a Hobson’s choice. They can either abide by the sacred tenets of their faith, pay a
20

penalty of over $14 million, and cripple the companies they have spent a lifetime building, or they become complicit in a grave moral wrong.”). And in this case, the government defendants concede that plaintiffs’ religious beliefs are sincerely held. In fact, the only evidence before the Court—plaintiffs’ undisputed affirmations—indicate that their beliefs are indeed sincere and religious in nature. Therefore, the government rests its argument on its belief that plaintiffs cannot establish a substantial burden on plaintiffs’ religious exercise rights where the regulations do not, according to the government, require the plaintiffs to modify their religious behavior.
Grace and Biola have established that the accommodation compels them to facilitate and serve as the conduit through which objectionable contraceptive products and services are ultimately provided to their employees and students, in violation of their unquestionably sincerely held religious beliefs. And prior to the ACA’s enactment, no evidence establishes that Grace and Biola previously discussed or provided a similar notice to their insurers/TPAs indicating that contraceptive services (specifically) were to be excluded from their health plans. In fact, given the religiously affiliated nature of the plaintiffs and their public stance on abortion and contraception, it is just as likely that those services would not have required any discussion, let alone a self certification, prior to their purchasing insurance coverage. Cf. University of Notre Dame v. Sebelius, No. 3:13-cv-1276-PPS-CAN (N.D. Ind. Dec. 20, 2013) (“In sum, the certification merely denotes Notre Dame’s refusal to provide contraceptive care—a statement that is entirely consistent with what Notre Dame has told its TPA in the past . . . [and so, the holding] isn’t that a compelled action is de minimis. It’s that no action is being compelled at all because the action would be taken [by Notre Dame] even if no contraception requirement applied.”).
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But even if the plaintiffs previously informed their insurers/TPAs not to provide coverage for objectionable contraceptive services, the government’s argument relative to the de minimus nature of any burden created by the accommodation is too narrow of a focus. The government’s argument, that the completion of a simple self certification form that takes minutes doesn’t create a substantial burden, misses the point. It is not the mere filling out and submitting the certification that creates a burden. Rather, if plaintiffs choose to provide health insurance coverage for employees and students (to comply with their own religious tenants and to avoid the ACA’s fines for failing to meet coverage requirements), then they must either directly provide contraceptive services themselves (which are clearly contrary to their religious beliefs) or they must invoke the accommodation and facilitate, indeed in their mind enable, the availability of contraceptive services (which is also contrary to their sincerely held religious beliefs). Thus, although plaintiffs avoid paying for the services, the compulsion to offer group health insurance results in their direct facilitation of insurance coverage and the potential use of contraceptive services by their employees and students, services which plaintiffs morally oppose. That the accommodation scheme allows the plaintiffs to avoid the costs of such services provides no comfort or relief. It’s the facilitation of the objectionable services, not the related cost, that offends their religious beliefs. Ultimately, the plaintiffs would be forced to modify their behavior and violate their religious beliefs by either giving up their health insurance plans or by providing insurance but taking critical steps to facilitate another’s extension of the objectionable coverage. See Korte, 735 F.3d at 682-83; see also Geneva College v. Sebelius, No. 2:12-cv00207, 2013 WL 3071481 (W.D. Pa. June 18, 2013) (citing Thomas, 450 U.S. at 718). And, their failure to comply with insurance requirements or provide contraceptive services results in
22

enormous penalties that would be financially detrimental to their operations. In short, the government’s accommodation results in the plaintiffs violating their sincerely held religious beliefs, as well as the choice between conformity with the ACA’s requirements or face substantial fines. See Korte, 735 F.3d at 683; see also Southern Nazarene Univ. v. Sebelius, No. CIV-13-1015-F (W.D. Okla. Dec. 23, 2013) (DE 45 at 16) (“The self certification is, in effect, a permission slip which must be signed by the institution to enable the plan beneficiary to get access, free of charge, from the institution’s insurer or third party administrator, to the products to which the institution objects. If the institution does not sign the permission slip, it is subject to very substantial penalties or other serious consequences. If the institution does sign the permission slip, and only if the institution signs the permission slip, institution’s insurer or third party administrator is obligated to provide the free products and services to the plan beneficiary.”). Thus, given the nature of the analysis utilized, the undersigned believes that Korte may logically be extended to conclude that the completion and submission of the self certification is an alteration in plaintiffs’ behavior such that it constitutes a substantial burden under RFRA. See University of Notre Dame, No. 3:13-cv-1276-PPS-CAN (“Perhaps upon review of this case, Korte will be extended by the Seventh Circuit to say that the filing of a certification is an alteration in Notre Dame’s behavior such that it constitutes a substantial burden under RFRA”); see also Zubik (and Persico) v. Sebelius, Nos. 13cv1459 and 13cv0303, 2013 WL 6118696, at *23-25 (W.D. Pa. Nov. 21, 2013) (“although the ‘accommodation’ legally enables Plaintiffs to avoid directly paying for the portion of the health plan that provides contraceptive products, services, and counseling, the “accommodation” requires them to shift the responsibility of purchasing insurance and providing contraceptive products, services, and
23

counseling, onto a secular source. The Court concludes that Plaintiffs have a sincerely-held belief that “shifting responsibility” does not absolve or exonerate them from the moral turpitude created by the “accommodation”; to the contrary, it still substantially burdens their sincerely-held religious beliefs.”). Given Korte’s guidance, the lack of mandatory authority on the precise issue at hand, and the divergence of case holdings demonstrating the difficulty of the issue and the uncertainty of the ultimate decision on the merits, the Court believes that plaintiffs have shown at least some reasonable likelihood of success on the merits relative to the substantial burden analysis. And even if that likelihood was just more than slight, the balance of harms could support injunctive relief.10
Before concluding the substantial burden analysis, the undersigned would be remiss if it didn’t acknowledge the government’s alternative argument, that any burden on plaintiffs’ religious exercise is too attenuated to render it substantial. In summary, the government believes that because plaintiffs are not required to actually contract or pay for contraceptive coverage any burden is too attenuated to be substantial because plaintiffs are separated by a series of events that must occur before the objectionable contraceptive services would be utilized. Specifically, after receiving the certification from plaintiffs, the TPA or issuer would actually pay for or arrange payment for the contraceptive services should employees and students independently decide to even use those services.
Similarly, in Korte, the government argued that the contraception mandate’s burden was
10See Storck USA, L.P. v. Farley Candy Co., 14 F.3d 311, 315 (7th Cir. 1994) (“Once the district court determined that [plaintiff’s] likelihood of success on the merits of its claim was slight, it required [plaintiff] to make a proportionately stronger showing that the balance of harms was in its favor.”) (citing Accord Abbott Laboratories v. Mead Johnson & Co., 971 F.2d 6, 12 (7th Cir. 1992)).
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insubstantial because any use of contraceptive services could not be attributed to the corporate plaintiffs or their owners since the provision of the contraceptive coverage was several steps removed from an employee’s independent determination to use contraception. See Korte, 735 F.3d at 684. However, the Seventh Circuit’s majority opinion reasoned that the government’s attenuation argument is equivalent to improperly asking whether “providing this coverage impermissibly assist[s] the commission of a wrongful act in violation of the moral doctrines of the [plaintiffs’ religion].” Id. at 685.11 But, “[n]o civil authority can decide that question”. Id.; see Roman Catholic Archdiocese of New York, No. 1:12-cv-02542-BMC, 2013 WL 6579764, at *14 (“The Government feels that the accommodation sufficiently insulates the plaintiffs from the objectionable services, . . . [but] it is not the Court’s role to say that plaintiffs are wrong about their religious beliefs.”); see also Hobby Lobby, 723 F.3d at 1142 (the question here is not whether the reasonable observer would consider the plaintiffs complicit in an immoral act, but rather how the plaintiffs themselves measure their degree of complicity).
Here, no one questions that among the plaintiffs’ religious tenets is that life begins at conception and that providing all FDA approved contraceptive service violates those tenets. And so it follows that plaintiffs object to deliberately providing health insurance that will trigger access to objectionable contraceptive services and related education and counseling. By completing the self certification, plaintiffs sincerely believe that they will be facilitating, and actually supporting, a step in the process by which their employees and students will eventually secure access to free contraceptive services. In their minds, this makes them complicit in the
11Judge Rovner understood the majority to be rejecting any assessment on how direct or attenuated the burden imposed on the plaintiff’s religious practices may be. Korte, 735 F.3d at 705 (Rovner, J., dissenting).
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provision and use of such services. Again, the government does not contest the sincerity of these beliefs. Because Grace and Biola hold these honest religious convictions and because failing to comply with the law will result in heavy financial penalties and the risk of enforcement actions (which will significantly impact their ability to provide religious services), id. at 683, plaintiffs have shown that the contraception mandate and accommodation constitute a substantial burden on their religious exercise. As a result, the government must justify its regulations under the compelling interest test.
2. Least Restrictive Means and Compelling Government Interest RFRA requires the government to demonstrate that applying the contraception mandate and its accommodation are “the least restrictive means of furthering [a] compelling governmental interest.” 42 U.S.C. § 2000bb–1(b). Again, the Court follows the precedent set forth in Korte, in applying the appropriate test in this context. In fact, the government has since conceded that the recent decision in Korte forecloses its arguments that the regulations satisfy strict scrutiny, even in this context [DE 81 at 2, fn. 1]. Regardless, the Court will conduct an analysis for completeness of the record. Consistent with Korte, the Supreme Court has instructed courts to look beyond “broadly formulated interests justifying the general applicability of government mandates” and “scrutinize[] the asserted harm of granting specific exemptions to particular religious claimants.” Korte, 735 F.3d at 685 (citing O Centro Espirita, 546 U.S. at 431). In other words, under RFRA’s version of strict scrutiny, the government must establish a compelling and specific justification for burdening these claimants. Id. The compelling-interest test generally requires a “high degree of necessity.” Id. (citing
26

Brown v. Entm't Merchs. Ass'n, –– U.S. –– , 131 S.Ct. 2729, 2741 (2011)). The government must “identify an ‘actual problem’ in need of solving, and the curtailment of [the right] must be actually necessary to the solution.” Id. (citing Brown, 131 S.Ct. at 2738). In the free-exercise context, “only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.” Id. (citing Yoder, 406 U.S. at 215). “[I]n this highly sensitive constitutional area, only the gravest abuses, endangering paramount interests, give occasion for permissible limitation . . .”. Id. (citing Sherbert, 374 U.S. at 406). The regulated conduct must “pose[ ] some substantial threat to public safety, peace[,] or order.” Korte, 735 F.3d at 686 (citing Sherbert, 374 U.S. at 403). Finally, “a law cannot be regarded as protecting an interest of the highest order . . . when it leaves appreciable damage to that supposedly vital interest unprohibited.” Id. (citing Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547 (7th Cir. 1993)).
Similar to the interests claimed by the government in Korte, the government identified two legitimate public interests in the instant case, improving the health of women and newborn children and equalizing the provision of preventive care for women and men so that women can participate in the workforce and society on an “equal playing field with men.” The government (prior to the issuance of Korte) had argued that the contraception mandate and the accommodation furthers these interests in a narrowly tailored fashion by not requiring nonprofit religious organizations with religious objections to providing contraceptive coverage to contract, pay, arrange, or refer for that coverage.
The Court agrees that the government’s stated interests are indeed important, and for the sake of argument (and a thorough analysis) will assume they are even compelling. However, the
27

government has not shown that the contraception mandate employs the least restrictive means of furthering the government’s interests, because strict scrutiny requires a substantial congruity—a close “fit”—between the governmental interest and the means chosen to further that interest. Korte, 735 F.3d at 686.
As discussed, the regulatory scheme exempts or excludes certain employers from the contraception mandate and does not apply the ACA’s requirements to employers with grandfathered plans or those with less than 50 employees. Since the government grants so many exceptions already, it cannot legitimately argue that its regulations are narrowly tailored, nor can they argue against exempting these plaintiffs, amounting to less than 2,000 covered people (or 1,500 eligible employees and a combined student population of less than 10,000). See Korte, 735 F.3d at 686; Gilardi, 733 F.3d at 1222 (“underinclusiveness can suggest an inability to meet the narrow-tailoring requirement, as it raises serious questions about the efficacy and asserted interests served by the regulation”). Also, there is nothing to suggest the ACA would become unworkable if employers objecting on religious grounds could opt out of one part of a comprehensive coverage requirement. See Gilardi, 733 F.3d at 1223-24.
Further, the government’s reason for creating the religious employer exemption in particular was that houses of worship and their integrated auxiliaries are more likely than other employers to employ people of the same faith who share the same objection to contraceptive coverage, and who would be less likely than others to use contraceptive services even if such services were covered. See 78 Fed. Reg. 39,874. However, these plaintiffs have indicated that their employees and students are expected to uphold the universities’ standards in treating human life as worthy of respect and protection at all stages from the time of conception and are
28

expected to avoid a Sixth Commandment violation by procuring, participating in, facilitating, or paying for objectionable contraceptive services. Thus, these plaintiffs share the same legitimate claim to the free exercise of religion as those exempted as “religious employers.” And yet, these plaintiffs have not received the same exemption as “religious employers” from having to facilitate or initiate the provision of objectionable contraceptive services, merely because they are not organized and operated as a nonprofit entity referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986—a basis which has nothing to do with the government’s stated interests for imposing the requirements of the contraception mandate. See Zubik, 2013 WL 6118696 at *29 (noting that the religious employer exemption was not predicated on the government’s stated interests). And so again, even assuming the government’s interests are compelling, there is no basis indicating the government would be unable to enforce its legislation simply because these plaintiffs could avoid compliance with the contraception mandate.
Finally, there are certainly other ways to promote public health and gender equality less burdensome on religious liberty, and the government has not carried its burden of demonstrating that it cannot achieve its policy goals in ways less damaging to religious-exercise rights. PreKorte, the government maintained that the accommodation provides the least restrictive means because the self certification requires the plaintiffs to act just as they would without the mandate—by informing their TPAs or insurers that coverage should not include certain contraceptive services. But the argument falls short. First, there is no evidence that plaintiffs so informed their TPA/insurers to exclude such services prior to the ACA. Second, the government has made exemptions from the coverage requirements for other employers without requiring the same form of self certification (and resulting consequences), despite the fact that plaintiffs share
29

the same legitimate claim to the free exercise of religion as those exempted as religious employers. Third, the self certification process created in the accommodation essentially transforms a voluntary act that plaintiffs may have utilized to ensure that the objectionable services are not provided, consistent with their religious beliefs, into a compelled act that they sincerely believe provides and promotes conduct that is forbidden by their religious beliefs. See Roman Catholic Archdiocese of New York, No. 1:12-cv-02542-BMC, 2013 WL 6579764, at *14. And so the nature of the act itself has changed, not merely the consequences of that act.
And as identified in Korte and as offered by plaintiffs in the instant action, there are many ways to increase access to free contraception without doing damage to the religious-liberty rights of conscientious objectors. For instance, the government can provide a “public option” for contraception insurance; it can give tax incentives or grants to contraception suppliers to provide these medications and services at no cost to consumers; and it can give tax incentives to consumers of contraception and sterilization services—all without requiring plaintiffs to self certify their religious objections to the contraception mandate and thereby directly facilitate access to objectionable contraceptive services to be arranged or paid for by third parties. Simply because these options may make it more difficult for the government to administer the regulations in a manner that would achieve the government’s stated interests, greater efficacy does not equate to the least restrictive means. See Zubik, 2013 WL 6118696 at *23. And as the government has conceded in the instant case, Korte has recently made clear that its regulations fail the strict scrutiny analysis.
Bearing in mind that at this stage the court need not be certain about the outcome of the case to grant a preliminary injunction, the Court concludes the plaintiffs have shown some
30

reasonable likelihood of success on the merits relative to their RFRA claim. See S.E.C. v. Lauer, 52 F.3d 667, 671 (7th Cir. 1995) (“The case is before us on an appeal from the grant of a preliminary injunction, and as is too familiar to require citation such a grant is proper even if the district judge is uncertain about the defendant's liability.”). Adequate Remedy at Law and Irreparable Harm
Although the claim is statutory, RFRA protects First Amendment free-exercise rights, and “in First Amendment cases, ‘the likelihood of success on the merits will often be the determinative factor.’” Korte, 735 F.3d at 666 (citing ACLU of Ill. v. Alvarez, 679 F.3d 583, 589 (7th Cir. 2012) (quoting Joelner v. Village of Washington Park, Ill., 378 F.3d 613, 620 (7th Cir. 2004))). “This is because the ‘loss of First Amendment freedoms . . . unquestionably constitutes irreparable injury . . .’. ” Korte, 735 F.3d at 666 (citing Alvarez, 679 F.3d at 589 (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion))). Furthermore, injunctions are especially appropriate in the context of first amendment violations because the “quantification of injury is difficult and damages are therefore not an adequate remedy.” Alvarez, 679 F.3d at 589 (citing Flower Cab Co. v. Petitte, 685 F.2d 192, 195 (7th Cir. 1982)).
In the instant case, Grace must decide by December 31, 2013 whether or not to provide insurance coverage and sign the self certification with respect to its employee health plan, and less than three months later Biola must also make the same decisions. Should plaintiffs fail to comply with the insurance coverage requirements of the ACA and its contraception mandate, the plaintiffs face financially devastating fines and enforcement actions. Thus, plaintiffs will be irreparably harmed if forced to forgo their religious beliefs by facilitating access to the objected to services in order to avoid detrimental fines, and there simply is insufficient time to litigate the
31

merits of the plaintiffs’ claims without the relief of a preliminary injunction. Given that plaintiffs’ religious exercise rights are at stake in the immediate future, that a loss of these freedoms for even a minimal period of time unquestionably constitutes irreparable injury which cannot be prevented or fully rectified by waiting for a final judgment, see Elrod, 427 U.S. at 373; Anderson v. U.S.F. Logistics (IMS), Inc., 274 F.3d 470, 478 (7th Cir. 2011), and that injunctions are designed to offer relief when legal remedies are inadequate to protect the parties’ rights, see Roland Machinery Co. v. Dresser Indus., Inc., 749 F.2d 380, 397 (7th Cir. 1984) (Swygert, J., dissenting), the Court concludes that these factors weigh strongly in favor of granting the requested relief. Weighing the Equities and Public Interest
In weighing the equities, the court balances each party’s likelihood of success against the potential harms. Girl Scouts of Manitou Council, Inc. v. Girl Scouts of the U.S., Inc., 549 F.3d 1079, 1100 (7th Cir. 2008). To do so, the court compares the potential irreparable harms faced by both parties to the suit—the irreparable harm risked by the moving party in the absence of a preliminary injunction against the irreparable harm risked by the nonmoving party if the preliminary injunction is granted. Id. (citing Ty, Inc. v. Jones Group, Inc., 237 F.3d 891, 895 (7th Cir. 2001)). We evaluate these harms using a sliding scale approach. Id. (citing Ty, Inc., 237 F.3d at 895). The more likely it is that plaintiffs will win their case on the merits, the less the balance of harms need weigh in their favor. Id. (citations omitted). Conversely, if it is very unlikely that plaintiffs will win on the merits, the balance of harms need weigh much more in plaintiffs’ favor. Id. (citations omitted). When conducting this balancing, it is also appropriate to take into account any public interest, which includes the ramifications of granting or denying the
32

preliminary injunction on nonparties to the litigation. Id. (other citations omitted). This analysis is “‘subjective and intuitive, one which permits district courts to weigh the competing considerations and mold appropriate relief.’” Girl Scouts of Manitou Council, Inc., 549 F.3d at 1100 (citations omitted).
As the Court has previously detailed herein, the harm likely to be caused the plaintiffs without an injunction is imminent and irreparable, whereas the government likely faces no risk of harm, let alone irreparable harm, if the preliminary injunction is granted. The Court agrees with the district court’s comments in Zubik, in that the combined nationwide total of the millions of Americans whose employers fall within some type of exclusion, exemption, or plan grandfathered from the ACA and contraception mandate’s requirements demonstrates that the government will not be harmed in any significant way by the exclusion of these few plaintiffs. Zubik, 2013 WL 6118696 at *34; see also Geneva College v. Sebelius, No. 2:12-cv-00207, 2013 WL 3071481, *10 (W.D. Pa. June 18, 2013) (“tens of millions of individuals . . . remain unaffected by the mandate’s requirements”). Moreover, the government has itself delayed the enforcement of the contraception mandate by initially granting a safe harbor from its enforcement and agreeing to injunctions in other cases involving challenges to the mandate.
Additionally, granting the preliminary injunction furthers the public interest. While it is true that employees and students of the plaintiffs will face an economic burden not shared by employees and students of organizations that cover all of the contraceptive methods imposed by the mandate, plaintiffs have already established that their employees and students were not only informed of the universities’ religious stance regarding contraception and abortion, but they were on notice of the universities’ expectation that its employees and students would promote the
33

universities’ religious views and community standards by refraining from the procurement, participation in, facilitation of, or payment for objectionable contraceptive services. 12 With that said, the plaintiffs’ employees/students and the public is best served if the plaintiffs can continue to provide needed (and expected) educational services, and the needed (and expected) insurance coverage to its employees and students, without the threat of substantial fines for noncompliance with the contraception mandate and its accommodation. Moreover, injunctions protecting First Amendment freedoms are always in the public interest, see Christian Legal Soc'y v. Walker, 453 F.3d 853, 859 (7th Cir. 2006), and the Court sees no reason to make an exception here.
The Court would also note that Grace and Biola quickly filed an amended complaint and sought an injunction after the 2013 final rules were passed. Thus, there has been no delay in their pursuit of a preliminary inunction. See Ty, Inc., 237 F.3d at 903 (a delay in pursuing a preliminary injunction may raise questions regarding irreparable harm.) Additionally, Grace and Biola have established that their employees and students were made aware of the universities’ expectation that they were to promote the universities’ religious views and community standards by refraining from the procurement of, participation in, facilitation of, or payment for objectionable contraceptive services. Thus, it cannot be said that there was any expectation that the universities would ever facilitate access to all FDA approved contraceptive services for its employees and students. Undoubtedly, the balance of harms in this case weighs heavily in plaintiffs’ favor, enough so that any weakness in the merits of their case is overcome, thereby making injunctive relief appropriate to maintain the status quo until a decision on the
12The government contends that not every employee and student of the plaintiffs share the plaintiffs’ religious objections to certain contraceptive services. And while this may very well be true, it does not negate the fact that said employees and students were aware of the universities’ expectations with respect to their use of contraceptive services.
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merits of the case is rendered. University of Texas v. Camenisch, 451 U.S. 390, 395 (1981); Michigan v. U.S. Army Corps of Engineers, 667 F.3d 765, 783 (7th Cir. 2011) (“The preliminary injunction, after all, is often seen as a way to maintain the status quo until merits issues can be resolved at trial. By moving too quickly to the underlying merits, the district court required too much of the plaintiffs . . .”).
IV. Conclusion Accordingly, it is hereby ORDERED that plaintiffs Grace Schools and Biola University, Inc.’s motion for a preliminary injunction [DE 55] based upon the uncontested and verified allegations of their first amended complaint [DE 54] is GRANTED, and as a result, defendants, their agents, servants, officers, employees, representatives, and all persons in active concert or participation with them are hereby ENJOINED from: Applying or enforcing against Plaintiffs Grace Schools and Biola University, Inc. or their employee or student health insurance plans, including their plan brokers, plan insurers, or third party administrators, the requirements set out in 42 U.S.C. § 300gg-13(a)(4) and 45 C.F.R. § 147.130(a)(1)(iv), corresponding guidelines, and corresponding press releases to provide, pay for, or otherwise facilitate access to coverage for FDA approved contraceptive methods, abortion-inducing drugs, sterilization procedures, and related patient education and counseling. It is further ORDERED that plaintiffs shall not be required to post bond; however, should circumstances change prior to the Court’s making a determination on the merits of the case, including new developments in the law, which may make the preliminary injunction or its terms no longer appropriate, then counsel are free to file a motion seeking a modification or vacatur of
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the injunction. SO ORDERED. ENTERED: December 27, 2013 /s/ JON E. DEGUILIO Judge United States District Court
36

 
 Case: 14-1430 Document: 91

Filed: 09/04/2015 Pages: 74

In the
United States Court of Appeals
For the Seventh Circuit

Nos. 14-1430 & 14-1431

GRACE SCHOOLS, et al., AND DIOCESE OF FORT WAYNE-SOUTH BEND, INC., et al.,

Plaintiffs-Appellees,

v.

SYLVIA MATHEWS BURWELL, et al.,

Defendants-Appellants.

Appeals from the United States District Court for the Northern District of Indiana.
Nos. 3:12-cv-00459-JD-CAN and 1:12-cv-00159-JD-RBC — Jon E. DeGuilio, Judge.

ARGUED DECEMBER 3, 2014 — DECIDED SEPTEMBER 4, 2015

Before MANION, ROVNER, and HAMILTON, Circuit Judges.
ROVNER, Circuit Judge. The district court entered a preliminary injunction in favor of the plaintiffs, a number of religious, not-for-profit organizations, preventing the defendants from applying or enforcing the so-called “contraceptive mandate” of the Patient Protection and Affordable Care Act of 2010 (“ACA”) to the plaintiffs. See 42 U.S.C. § 300gg-13(a)(4); Pub.

Case: 14-1430 Document: 91

Filed: 09/04/2015 Pages: 74

2

Nos. 14-1430 & 14-1431

L. No. 111-148, 124 Stat. 119 (2010). The plaintiffs contend that the ACA’s accommodations for religious organizations impose a substantial burden on their free exercise of religion, and that the ACA and accompanying regulations are not the least restrictive means of furthering a compelling government interest, in violation of the plaintiffs’ rights under the Religious Freedom Restoration Act of 1993 (“RFRA”). See 42 U.S.C. § 2000bb et seq. The defendants, several agencies of the United States government, appeal. We conclude that ACA does not impose a substantial burden on the plaintiffs’ free exercise rights and so we reverse and remand. However, we will maintain the injunction for a period of sixty days in order to allow the district court adequate time to address additional arguments made by the parties but not addressed prior to this appeal.
I.
The ACA requires group health plans and third-party administrators of self-insured plans to cover preventive care for women under guidelines supported by the Health Resources and Services Administration (“HRSA”), a component of the Department of Health and Human Services (“HHS”). 42 U.S.C. § 300gg-13(a)(4); 45 C.F.R. § 147.130(a)(1)(iv); University of Notre Dame v. Burwell, 786 F.3d 606, 607 (7th Cir. 2015) (hereafter “Notre Dame II”); University of Notre Dame v. Sebelius, 743 F.3d 547, 548 (7th Cir. 2014), vacated by 135 S. Ct. 1528 (2015) (hereafter “Notre Dame I”). The relevant guidelines include “all Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” 77 Fed. Reg. 8725-26. The regulations adopted by the three

Case: 14-1430 Document: 91

Filed: 09/04/2015 Pages: 74

Nos. 14-1430 & 14-1431

3

Departments implementing this part of the ACA require coverage of, among other things, all of the contraceptive methods described in the guidelines. See 45 C.F.R. § 147.130(a)(1)(iv) (HHS); 29 C.F.R. § 2590.715-2713(a)(1)(iv) (Labor); 26 C.F.R. § 54.9815-2713(a)(1)(iv) (Treasury).1
In anticipation of objections from religious organizations to these requirements, the Departments provided an exemption from the contraception coverage provision for religious employers. 45 C.F.R. § 147.131(a). A religious employer is defined as “an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 45 C.F.R. § 147.131(a); 26 U.S.C. § 6033(a)(3)(A). That provision of the Internal Revenue Code, in turn, refers to “churches, their integrated auxiliaries, and conventions or associations of churches,” and “the exclusively religious activities of any religious order.” 26 U.S.C. § 6033(a)(3)(A)(i) and (iii). But the exemption did not cover religiously-affiliated non-profit corporations such as schools and hospitals that did not meet the IRS guidelines for religious employers. The Departments therefore adopted additional regulations providing accommodations for group health plans provided by these non-profit

1 All three of these regulations have been amended since this suit was filed. The most recent amendments, which are scheduled to take effect Sept. 14, 2015, address accommodations for closely-held for-profit corporations whose owners have religious objections to some or all of the contraceptive coverage requirements of the ACA. See Burwell v. Hobby Lobby, 134 S. Ct. 2751 (2014). Because these most recent amendments are not relevant to the issues raised here, we will be referring to the version of the regulations in effect at the time this suit was filed, unless we state otherwise.

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religious corporations, called “eligible organizations” in the regulations:
(b) Eligible organizations. An eligible organization is an organization that satisfies all of the following requirements:
(1) The organization opposes providing coverage for some or all of any contraceptive services required to be covered under § 147.130(a)(1)(iv) on account of religious objections.
(2) The organization is organized and operates as a nonprofit entity.
(3) The organization holds itself out as a religious organization.
(4) The organization self-certifies, in a form and manner specified by the Secretary, that it satisfies the criteria in paragraphs (b)(1) through (3) of this section, and makes such self-certification available for examination upon request by the first day of the first plan year to which the accommodation in paragraph (c) of this section applies. The self-certification must be executed by a person authorized to make the certification on behalf of the organization, and must be maintained in a manner consistent with the record retention requirements under section 107 of the Employee Retirement Income Security Act of 1974.

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45 C.F.R. § 147.131(b).2 See also 78 Fed. Reg. 39,874-75.

Eligible organizations are not required “to contract, arrange, pay, or refer for contraceptive coverage” to which they have religious objections. 78 Fed. Reg. 39,874. The government developed a two-page form for eligible organizations to use to comply with this accommodation, the “EBSA Form 700 – Certification.”3 The short form requires the eligible organization to supply its name, the name and title of the individual authorized to make the certification on behalf of the organization, and a mailing address and telephone number for that individual. The form also requires a signature verifying the statement, “I certify the organization is an eligible organization (as described in 26 CFR 54.9815-2713A(a), 29 CFR 2590.715-2713A(a); 45 CFR 147.131(b)) that has a religious objection to providing coverage for some or all of any contraceptive services that would otherwise be required to be covered.” The organization must then provide a copy of the certification to the organization’s health insurance issuer or, for self-insured plans, to its third-party administrator. The insurer or administrator receiving the certification is obligated to provide (or arrange for the provision of) contraception coverage for the health plan’s participants without cost sharing through alternate mechanisms established by the regulations.

2 This regulation will also be updated as of Sept. 14, 2015. Again, we cite to the earlier version.
3 The form can be found at http://www.dol.gov/ebsa/pdf/preventive serviceseligibleorganizationcertificationform.pdf, last visited September 3, 2015.

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45 C.F.R. § 147.131(c). The insurer4 may not impose a charge of any variety, either directly or indirectly, on the eligible organization for the provision of contraception services.5 The insurer must also inform plan participants that the eligible organization will not provide or fund any contraception coverage. 45 C.F.R. § 147.131(d). As we will discuss below, since the filing of this suit, these regulations have been amended to allow a second method of objecting to contraceptive coverage, by notifying HHS directly of any religiouslybased objection.

The plaintiffs are various religiously-based non-profit organizations including the Diocese of Fort Wayne-South Bend, Inc. (“Diocese”); Catholic Charities of the Diocese of Fort Wayne-South Bend, Inc. (“Catholic Charities”); Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-

4 From this point forward, when we use the term “insurer,” we mean to include third-party administrators in those instances where the plan is selfinsured unless we state otherwise.
5 Insurers are expected to recoup the costs of contraceptive coverage from savings on pregnancy medical care as well as from other regulatory offsets. See Notre Dame II, 786 F.3d at 609–10; 78 Fed. Reg. 38977-78 (“Issuers are prohibited from charging any premium, fee, or other charge to eligible organizations or their plans, or to plan participants or beneficiaries, for making payments for contraceptive services, and must segregate the premium revenue collected from eligible organizations from the monies they use to make such payments. In making such payments, the issuer must ensure that it does not use any premiums collected from eligible organizations.”). Third-party administrators may seek reimbursement of up to 110% of their costs from the government. Notre Dame II, 786 F.3d at 609; 45 C.F.R. § 156.50(d)(3).

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South Bend, Inc. (“St. Anne Home”); Franciscan Alliance, Inc.; Specialty Physicians of Illinois LLC (“Specialty Physicians”); University of Saint Francis (“St. Francis”); Our Sunday Visitor, Inc. (“Sunday Visitor”); Biola University, Inc. (“Biola”) and Grace Schools. The plaintiffs objected below to the regulatory scheme, which they characterize as a “contraceptive services mandate,” on numerous grounds. Primarily, they asserted that the regulations force them to participate in a system that contravenes their religious beliefs in violation of the RFRA. 42 U.S.C. § 2000bb et seq.6 In particular, they are forced to contract with insurers or third-party administrators that will provide their employees (and, in some cases, their students) with coverage for contraceptives, sterilization, and abortioninducing products, all in violation of their deeply held religious beliefs. The accommodation provides them no relief, they contended below, because it causes them to trigger and facilitate the same objectionable services for their employees and students. A non-complying employer7 who does not meet

6 The plaintiffs also allege that the challenged statute and regulations violate their rights under the First Amendment and under the Administrative Procedures Act, 5 U.S.C. § 500 et seq. Because the district court issued the injunction after considering only the RFRA, and because neither side has briefed the other issues, we will confine our discussion to the RFRA. On remand, the plaintiffs are free to pursue their other theories for relief and, in fact, we will leave the injunction in place for a limited time in order to allow the court to consider those additional claims.
7 The disputed regulations apply equally to employers providing insurance to employees and to institutions of higher education providing student health insurance. See 45 C.F.R. § 147.131(f). Some of the plaintiffs provide
(continued...)

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an exemption faces fines of $2000 per year per full time employee8 for not providing insurance that meets coverage requirements, 26 U.S.C. § 4980H(c), or $100 per day per employee for providing insurance that excludes the required contraceptive coverage, 26 U.S.C. § 4980D, and will face the risk of other enforcement actions.
The Diocese itself is exempted from challenged requirements under the religious employer exemption,9 and the remaining plaintiffs are subject to the accommodation for nonprofit, religiously-affiliated employers. The government does not contest the sincerity of the plaintiffs’ religious objections to the required contraceptive coverage. Moreover, all of the plaintiffs consider the provision of health insurance for their employees and students to be part of their religious mission.

7 (...continued) both employee and student health coverage.
8 When calculating the number of employees for the purpose of assessing this penalty, the statute directs that thirty employees be subtracted from the total number of employees, essentially reducing the penalty by $60,000 per year for affected employers. 26 U.S.C. § 4980H(c)(2)(D)(i).
9 Although the Diocese is itself exempt, the Diocesan Health Plan insures employees of the non-exempt Catholic Charities. In order to protect Catholic Charities from having to comply with either the contraceptive mandate or the accommodation, the Diocese has forgone almost $200,000 annually in increased premiums in order to maintain its grandfathered status under the ACA. See 42 U.S.C. § 18011. Grandfathered plans are those health plans that need not comply with the coverage requirements of the ACA because they were in existence when the ACA was adopted and have not made certain changes to the terms of their plans.

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Although the plaintiffs concede that they are not required to pay for the objectionable services, they contended in the district court that being forced to contract with insurers or third-party administrators who must then provide those services makes them a facilitator of objectionable conduct, complicit in activity that violates their core religious beliefs. The plaintiffs also asserted below that the government’s interest in providing contraceptive services is not compelling and that the means the government employed are not the least restrictive available to achieve the government’s goals. On those bases, the plaintiffs sought and received a preliminary injunction in the district court.
The district court noted that the RFRA prohibits the federal government from placing substantial burdens on a person’s exercise of religion unless it can demonstrate that applying the burden is “in furtherance of a compelling governmental interest,” and is the “least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(a) and (b). The court first considered whether the contraception regulations create a substantial burden on eligible employers in light of the accommodation provided by the regulations. Citing our opinion in Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013), cert. denied, 134 S. Ct. 2903 (2014), the court noted that “the pertinent inquiry for the substantial burden test under RFRA is whether the claimant has an honest conviction that what the government is requiring or pressuring him to do conflicts with his religious beliefs and whether the governmental pressure exerts a sufficiently coercive influence on the plaintiffs’ religious practice.” Grace Schools v. Sebelius, 988 F. Supp. 2d 935, 950 (N.D. Ind. 2013); Diocese of Fort Wayne-

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South Bend, Inc. v. Sebelius, 988 F. Supp. 2d 958, 972 (N.D. Ind. 2013). The court found that the plaintiffs sincerely believe that the accommodation compels them to facilitate and serve as a conduit for objectionable contraceptive services for their employees and students. If the plaintiffs want to provide health insurance for their students and employees as part of their religious mission (and in order to avoid the fines imposed by the ACA on employers who fail to meet coverage requirements), the court reasoned, then they must either provide the objectionable coverage themselves or comply with the accommodation.
And the plaintiffs sincerely believe that invoking the accommodation facilitates and enables the provision of contraceptive services to their employees and students; the accommodation, in short, makes them complicit in the provision of services to which they possess a religious objection. That they need not pay for the services provides no relief from their religious dilemma, the district court reasoned, because they must violate their religious beliefs by either forgoing providing health insurance to their employees and students, or they must take critical steps (i.e. comply with the accommodation) to facilitate a third party’s provision of the objectionable coverage. Because failure to take either of these equally objectionable routes would result in the imposition of large financial penalties, the district court found that the plaintiffs demonstrated that the ACA imposes a substantial burden on their free exercise rights in contravention of the RFRA. The court then assumed that the government possessed a compelling interest in providing seamless contraceptive services to women in group health plans, but found that the accommoda-

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tion was not the least restrictive means of accomplishing that goal. The court therefore enjoined the defendants from enforcing against the plaintiffs the requirements “to provide, pay for, or otherwise facilitate access to coverage for FDA approved contraceptive methods, abortion-inducing drugs, sterilization procedures, and related patient education and counseling.” Grace Schools, 988 F. Supp. 2d at 958; Diocese of Fort-Wayne-South Bend, 988 F. Supp. 2d at 980. The government appeals.
II.
Several months after the district court entered the injunctions for the plaintiffs here, we issued our opinion in Notre Dame I, where we affirmed the denial of a motion for a preliminary injunction under strikingly similar circumstances to those presented by these appeals. The government asserts that our decision in Notre Dame I controls the result here and requires that we reverse the preliminary injunctions granted by the district court. The plaintiffs argue that Notre Dame I is distinguishable and that application of the substantial burden test from Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), and Korte requires that we affirm the preliminary injunctions here. After this appeal was fully briefed and argued, the Supreme Court vacated and remanded our opinion in Notre Dame I “for further consideration in light of Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).” University of Notre Dame v. Burwell, 135 S. Ct. 1528 (2015). We recently issued a new opinion addressing the effect of Hobby Lobby on Notre Dame’s appeal. See Notre Dame II, 786 F.3d at 615–19. We will begin our analysis with our original Notre Dame I opinion, which continues to apply to some of the questions raised here,

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before we turn to Notre Dame II. “We review the district court's findings of fact for clear error, its balancing of the factors for a preliminary injunction under the abuse of discretion standard, and its legal conclusions de novo.” United Air Lines, Inc. v. Air Line Pilots Ass’n, Int’l, 563 F.3d 257, 269 (7th Cir. 2009). To obtain a preliminary injunction, a party must establish that it is likely to succeed on the merits, that it is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in its favor, and that issuing an injunction is in the public interest. Smith v. Executive Dir. of Ind. War Mem’ls Comm’n, 742 F.3d 282, 286 (7th Cir. 2014).
A.
In Notre Dame I, a non-profit Catholic university moved to enjoin the enforcement of the ACA’s contraception provisions against it. 743 F.3d at 551. Notre Dame provides health benefits to its employees and students. The university self-insures the employees and utilizes a third-party administrator to manage the plan. It contracts directly with an insurance provider for the student health plan. 743 F.3d at 549. The ACA requires the university, as an eligible organization, either to provide contraceptive coverage for its employees or to comply with the accommodation by opting out through the use of the EBSA Form 700 certification (“Form 700"), which we described above. 743 F.3d at 550. The relevant regulations required Notre Dame to provide the completed Form 700 to its third-party administrator and to the insurer of the student plan. Notre Dame filed suit shortly before the deadline for complying with the accommodation and moved for a preliminary injunction. The district court denied the motion and Notre Dame appealed, with fewer than two weeks left to meet the deadline for

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compliance. We denied the university’s motion for an injunction pending the appeal but ordered expedited briefing. On the last day to comply with the regulations, Notre Dame signed the Form 700 and supplied it to its insurer and third-party administrator. 743 F.3d at 551. The appeal proceeded.
We noted that Notre Dame’s primary objection was to the regulations surrounding the Form 700 certification. One regulation provides that:
the copy of the self-certification [EBSA Form 700] provided by the eligible [to opt out] organization [Notre Dame] to a third party administrator [Meritain] (including notice of the eligible organization's refusal to administer or fund contraceptive benefits) … shall be an instrument under which the plan is operated, [and] shall be treated as a designation of the third party administrator as the plan administrator under section 3(16) of ERISA for any contraceptive services required to be covered under § 2590.715–2713(a)(1)(iv) of this chapter to which the eligible organization objects on religious grounds.
Notre Dame I, 743 F.3d at 552–53 (quoting 29 C.F.R. § 2510.3-16). Notre Dame interpreted that regulation as if its mailing of the Form 700 to its insurer and its third-party administrator were the cause of the provision of contraceptive services to its employees and students, in violation of its religious beliefs. We noted that was not the case. Instead, the Form 700 allows the university to opt out of the provision of objectionable services entirely and the law then places the burden of providing the

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services on the insurer and the third-party administrator. 743 F.3d at 553.
In assessing the likelihood of Notre Dame’s success on the merits, we considered and rejected the school’s claim that filling out and mailing the Form 700 is a “substantial burden” on the university’s exercise of religion. 743 F.3d at 554. Notre Dame complained that completing the form and distributing it to the insurer and third-party administrator triggered contraceptive coverage for employees and students, making the university complicit in the provision of objectionable services and burdening the university’s religious exercise. We found that the Form 700 self-certification does not trigger, cause or otherwise enable the provision of contraceptive services:
Federal law, not the religious organization's signing and mailing the form, requires health-care insurers, along with third-party administrators of self-insured health plans, to cover contraceptive services. By refusing to fill out the form Notre Dame would subject itself to penalties, but Aetna [the insurer] and Meritain [the third-party administrator] would still be required by federal law to provide the services to the university’s students and employees unless and until their contractual relation with Notre Dame terminated.
Notre Dame I, 743 F.3d at 554. We also rejected Notre Dame’s argument that its insurer and third-party administrator would not have been authorized as plan fiduciaries to provide the contraceptive services until the school executed Form 700.

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743 F.3d at 554–55. The law and the regulations (and not the Form 700) designate the insurer and third-party administrator as plan fiduciaries who are then obligated by federal law to provide the contraceptive services. 743 F.3d at 555. We also concluded that the contraception regulations do not impose a substantial burden simply because the university must contract with a third party willing to provide (at the behest of the government) the services that Notre Dame finds objectionable. Because that third party did not object to providing the services, we called any such claim speculative and not a ground for equitable relief. We emphasized, in the end, that it was not the Form 700 or anything that Notre Dame was required to do by the regulatory accommodation that caused the university’s employees and students to receive the objectionable coverage; rather it was federal law that authorized, indeed required, insurers and third-party administrators to provide coverage. 743 F.3d at 559. Because the true objection was not to actions that the school itself was required to take but rather to the government’s independent actions in mandating contraceptive coverage, we concluded that there was no substantial burden on the university’s religious exercise. 743 F.3d at 559.
B.
As litigation on the ACA’s contraception requirements has progressed in other cases and other circuits, new regulations have been issued in response to interim orders from the Supreme Court. In Little Sisters of the Poor Home for the Aged, Denver, Colo. v. Sebelius, 134 S. Ct. 1022 (2014), after a district court declined to enjoin the operation of the ACA against a religious organization that did not wish to file the Form 700,

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the Court entered an injunction pending the appeal of that decision:
If the employer applicants inform the Secretary of Health and Human Services in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicants the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit. To meet the condition for injunction pending appeal, applicants need not use the form prescribed by the Government and need not send copies to third-party administrators. The Court issues this order based on all the circumstances of the case, and this order should not be construed as an expression of the Court's views on the merits.
Little Sisters, 134 S. Ct. at 1022. The order, in short, relieved the Little Sisters of their obligation to file the Form 700 so long as they directly notified the government of their objection.
Subsequently, the Court entered a similar injunction in a case within our circuit. See Wheaton College v. Burwell, 134 S. Ct. 2806 (2014). After essentially repeating the language from the very short order in Little Sisters, the Court clarified:
Nothing in this interim order affects the ability of the applicant's employees and students to obtain, without cost, the full range of FDA approved contra-

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ceptives. The Government contends that the applicant's health insurance issuer and third-party administrator are required by federal law to provide full contraceptive coverage regardless whether the applicant completes EBSA Form 700. The applicant contends, by contrast, that the obligations of its health insurance issuer and third-party administrator are dependent on their receipt of notice that the applicant objects to the contraceptive coverage requirement. But the applicant has already notified the Government—without using EBSA Form 700—that it meets the requirements for exemption from the contraceptive coverage requirement on religious grounds. Nothing in this order precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the Act.
Wheaton College, 134 S. Ct. at 2807. As with Little Sisters, the order relieved Wheaton College of its obligation to file Form 700 as long as it notified the government directly of its objection. But the government was permitted to use this direct notice to facilitate the coverage required by the ACA.
And finally, after the Third Circuit reversed a temporary injunction sought by a religious employer and granted by a district court, the Court again intervened:
The application for an order recalling and staying the issuance of the mandate of the Court of Appeals pending the filing and disposition of a petition for a

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writ of certiorari, having been submitted to Justice Alito and by him referred to the Court, the application as presented is denied. The Court furthermore orders: If the applicants ensure that the Secretary of Health and Human Services is in possession of all information necessary to verify applicants’ eligibility under 26 CFR § 54.9815-2713A(a) or 29 CFR § 2590.715-2713A(a) or 45 CFR § 147.131(b) (as applicable), the respondents are enjoined from enforcing against the applicants the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of their petition for certiorari. Nothing in this interim order affects the ability of the applicants’ or their organizations’ employees to obtain, without cost, the full range of FDA approved contraceptives. Nor does this order preclude the Government from relying on the information provided by the applicants, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the Act. See Wheaton College v. Burwell, 573 U. S. ___ (2014). This order should not be construed as an expression of the Court’s views on the merits. Ibid. Justice Sotomayor would deny the application.
Zubik v. Burwell, 2015 WL 3947586 (June 29, 2015) (full text found at http://www.supremecourt.gov/search.aspx? filename=/docketfiles/14a1065.htm, last visited September 3, 2015). As a result of these interim orders from the Supreme Court, the regulations have been amended so that objectors may now notify HHS directly rather than filing the Form 700.

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And the government may, in turn, facilitate the required contraceptive coverage based on such notice.
C.
We turn to our recent decisions in Notre Dame II and Wheaton College v. Burwell, 791 F.3d 792 (7th Cir. 2015). In Notre Dame II, we noted that, shortly after filing its suit and immediately before the regulatory deadline, the university signed the Form 700 and sent it to the insurer of its students and the thirdparty administrator of its employee plan. That action left us wondering what relief Notre Dame sought. Ultimately, we determined, Notre Dame wanted
us to enjoin the government from forbidding Notre Dame to bar Aetna and Meritain from providing contraceptive coverage to any of the university's students or employees. Because of its contractual relations with the two companies, which continue to provide health insurance coverage and administration for medical services apart from contraception as a method of preventing pregnancy, Notre Dame claims to be complicit in the sin of contraception. It wants to dissolve that complicity by forbidding Aetna and Meritain—with both of which, to repeat, it continues to have contractual relations—to provide any contraceptive coverage to Notre Dame students or staff. The result would be that the students and staff currently lacking coverage other than from Aetna or Meritain would have to fend for themselves, seeking contraceptive coverage elsewhere in the health insurance market.

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Notre Dame II, 786 F.3d at 611. The university’s primary objection to the ACA was that its contractual relationship with its insurer and third-party administrator made the school a conduit for the provision of objectionable services. According to Notre Dame, the contraception regulations imposed a substantial burden on it by forcing the university to identify and contract with a third party willing to provide objectionable contraceptive services. 786 F.3d at 611–12.
We noted that, although Notre Dame is the final arbiter of its religious beliefs, only the courts may determine whether the law actually forces the university to act in a way that would violate those beliefs. 786 F.3d at 612. The record contained no evidence to support a conduit theory. Nor is it within our usual practice to enjoin non-parties such as Notre Dame’s insurer and third-party administrator. We also rejected Notre Dame’s claim that the regulation requiring employers to provide Form 700 to its insurers was the cause of the provision of contraceptive services; rather the services are provided because federal law requires the insurers to provide them. Notre Dame II, 786 F.3d at 613–14 (“It is federal law, rather than the religious organization's signing and mailing the form, that requires health-care insurers, along with third-party administrators of self-insured health plans, to cover contraceptive services.”). Because the insurer must provide the services no matter what the employer does, we noted that “signing the form simply shifts the financial burden from the university to the government, as desired by the university.” 786 F.3d at 615. See supra note 5. We thus re-asserted the core reasoning of our earlier opinion before turning to any effect that Hobby Lobby had on the case.

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Hobby Lobby, we noted, involved closely-held for-profit corporations whose owners objected on religious grounds to the contraceptive mandate. The Supreme Court held that the RFRA applied to nonreligious institutions owned by persons with sincerely held religious objections to the ACA’s contraception regulations. Hobby Lobby, 134 S. Ct. at 2776–78; Notre Dame II, 786 F.3d at 615. The Court noted that the companies’ objections could be addressed by allowing them to invoke the same accommodation that the government created for religious non-profit employers, namely signing and filing the Form 700. 134 S. Ct. at 2782. The Court left open the issue of whether the accommodation that was adequate for nonreligious, for-profit corporations would be sufficient to protect the rights of religious non-profit employers. As to that issue, we examined various alternative schemes that Notre Dame proposed as possible accommodations and found each of them lacking. We also noted that the Supreme Court had created an alternative to Form 700 by allowing employers to notify the government directly of its objection to the mandate. Notre Dame II, 786 F.3d at 617–18; Wheaton College, 134 S. Ct. at 2806. We rejected Notre Dame’s objections to the Wheaton College alternative notice, citing Bowen v. Roy, 476 U.S. 693 (1986). We noted that the Roy Court rejected Roy's religious objection to the government's use of his daughter's Social Security number for its purposes. The Court held “Roy may no more prevail on his religious objection to the Government's use of a Social Security number for his daughter than he could on a sincere religious objection to the size or color of the Government's filing cabinets.” Roy, 476 U.S. at 700. Notre Dame's objection to the government designating insurers as substitutes to provide contraceptive

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coverage was an analogous challenge to the government's management of its affairs and, accordingly, Notre Dame had not demonstrated a substantial burden to its religious exercise. Notre Dame II, 786 F.3d at 618.
In Wheaton College, we similarly rejected a religious school’s objections to the contraception regulations under the RFRA, the First Amendment and the Administrative Procedures Act. 791 F.3d at 801. The college asserted that the government was using the school’s insurance plan and putting additional terms into its contracts with insurers in order to provide the objectionable coverage. The college sought an injunction prohibiting the government’s effort to use Wheaton’s plans as the vehicle for making contraceptive coverage available to its employees and students. It objected to notifying its insurers or the government that it claimed a religious exemption, and also to providing the government with the names of its insurers so that the government could then implement the coverage separate from the college. We noted that the ACA and accompanying regulations do not alter any employer’s insurance plans or contracts. 791 F.3d at 794. Nor is the college being forced to allow the use of its plan to provide objectionable services. The ACA and regulations require only that the college notify either its insurers or the government that it objects, which takes the school out of the loop. 791 F.3d at 795. As in Notre Dame II, we rejected the claim that the provision of notice to insurers or the government somehow triggers or facilitates the provision of objectionable coverage. 791 F.3d at 796. As was the case with Notre Dame, Wheaton also objected to being forced to contract with insurers which, in turn, provided objectionable services, contending that this made the college

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complicit in the provision of those services. We saw no complicity in the operation of the law, which makes every effort to separate religious employers from the provision of any objectionable services.
We again noted that courts generally do not enjoin nonparties, and Wheaton had not made its insurers parties to the suit. Wheaton also expressed a reluctance to identify its insurers to the government, instead preferring that the government discover through its own research the names of the insurers. But Wheaton made no connection between the means for identifying the insurers and its religious commitments. We also noted Wheaton’s assertion that its students and employees sign a covenant agreeing to abide by the school’s moral standards, indicating perhaps that Wheaton’s concerns about the ACA are largely academic because the employees and students are unlikely to actually use the services offered. Finally, we rejected Wheaton’s claims under the First Amendment, ERISA and the Administrative Procedures Act, all issues which were not argued in the instant appeal, and so we will not address them further. 791 F.3d at 797–800.
Before we move on to the plaintiffs’ objections in this case, we note that the case law analyzing the contraceptive mandate is rapidly evolving. Recently, the six other circuits to consider these same issues have all come to the same conclusion as our opinions in Notre Dame and Wheaton College, namely, that the contraceptive mandate, as modified by the accommodation, does not impose a substantial burden on religious organizations under the RFRA. See Catholic Health Care System v. Burwell, — F.3d —, 2015 WL 4665049, *7-*16 (2d Cir. Aug. 7, 2015) (concluding that the accommodation does not impose a

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substantial burden); Little Sisters of the Poor Home for the Aged v. Burwell, 794 F.3d 1151 , 2015 WL 4232096, *16 (10th Cir. 2015), petition for cert. filed, 84 USLW 3056 (U.S. July 24, 2015) (No. 15105) (concluding that the mandate does not impose a substantial burden on religious exercise under RFRA and affirming the denial of a preliminary injunction in one instance and reversing the grant of preliminary injunctions in two others); East Texas Baptist University v. Burwell, 793 F.3d 449, 459 (5th Cir. 2015), petition for cert. filed, 84 USLW 3050 (U.S. July 8, 2015) (No. 15-35) (holding that the ACA does not impose a substantial burden under the RFRA and reversing the grant of a preliminary injunction); Geneva College v. Secretary United States Department of Health & Human Servs., 778 F.3d 422, 442 (3d Cir. 2015), petition for cert. filed, 83 USLW 3894 (U.S. May 29, 2015) (Nos. 14-1418 & 14A1065), and stay denied by Zubik v. Burwell, 135 S.Ct. 2924, 2015 WL 3947586 (June 29, 2015) (reversing grant of preliminary injunction and concluding that the accommodation procedures do not impose a substantial burden on religious exercise); Priests for Life v. United States Dep’t of Health & Human Servs., 772 F.3d 229, 256 (D.C. Cir. 2014), petition for cert. filed, 83 USLW 3918 (U.S. June 9, 2015) (No. 14-1453) (affirming denial of injunctive relief and concluding that the ACA’s mandate does not impose a substantial burden on religious exercise); Michigan Catholic Conference v. Burwell, 755 F.3d 372, 390 (6th Cir. 2014), cert. granted, judgment vacated and remanded, 135 S. Ct. 1914 (2015), reissued, — F.3d — 2015 WL 4979692 (6th Cir. Aug. 21, 2015) (because objectors may obtain the accommodation from the contraceptive-coverage requirement without providing, paying for, and/or facilitating access to contraception, the contracep-

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tive-coverage requirement does not impose a substantial burden on their exercise of religion).10 No court of appeals has concluded that the contraceptive mandate imposes a substantial burden under the RFRA.
D.
After this court issued its opinion in Notre Dame II, we asked the parties to file position statements addressing the effect of that opinion on this appeal. We turn now to the parties’ position statements as well as the arguments raised in their original briefs. The government, in its original brief, contended that Notre Dame I was controlling. It argued that the plaintiffs are permitted to opt out of providing contraceptive coverage, and that the plaintiffs improperly object to requirements imposed by the accommodation on third parties rather than on themselves. The government also asserted that it is the province of the court rather than the plaintiffs to determine whether a particular regulation or law “substantially” burdens the plaintiffs’ free exercise of religion under the RFRA. Finally, the government maintained that, even if we were to determine that the regulations impose a substantial burden on the plaintiffs under the RFRA, the government’s interest in

10 The Sixth Circuit released its opinion a few weeks prior to the issuance of Hobby Lobby, but denied rehearing en banc several months later. The Supreme Court subsequently granted the petition for certiorari, vacated the opinion and remanded for further consideration in light of Hobby Lobby. The Sixth Circuit recently reissued and reaffirmed its earlier opinion and filed a supplemental opinion addressing Hobby Lobby. The Sixth Circuit continues to hold that the ACA’s contraception provisions do not impose a substantial burden under RFRA. Michigan Catholic, 2015 WL 4979692, *6- *15.

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providing the coverage is compelling and the regulations are narrowly tailored to meet that interest.
In its position statement, the government adds that Notre Dame II rejected all of the arguments raised by the plaintiffs here. Specifically, the government again notes that the regulations allow the plaintiffs to opt out of providing the mandated contraceptive services, making them effectively exempt. After objectors opt out, the government tasks third parties with providing the coverage. Moreover, the opt-out does not operate as a trigger or cause for the coverage; rather federal law imposes on third parties the obligation to provide the coverage. Nothing in the ACA or regulations makes the plaintiffs complicit or allows their contracts with insurers or third party administrators to act as conduits for the provision of contraceptive services. The government repeats that, even if the regulations impose a substantial burden on the plaintiffs’ free exercise of religion under the RFRA, the regulations serve a compelling government interest and are the least restrictive means of achieving those interests. According to the government, our opinion in Notre Dame II demonstrates that the current regulations are narrowly tailored to achieve the compelling interest, and that none of the plaintiffs’ suggested alternatives would be effective.
In their opening brief, the plaintiffs argued, as they did below, that the contraception regulations impose a substantial burden on their exercise of religion. The plaintiffs asserted that they exercise their religion “by refusing to take actions in furtherance of a regulatory scheme to provide their employees with access to abortion-inducing products, contraceptives, sterilization, and related education and counseling.” Brief at

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29. The plaintiffs maintained that submitting Form 700 renders them complicit in a grave moral wrong because the form has certain legal effects that facilitate the provision of the objectionable services. The accommodation, the plaintiffs added, requires them to amend the documents governing their health plans to provide the very coverage to which they object. The plaintiffs also objected to contracting with and paying premiums to insurance companies or third party administrators that are authorized to provide their employees with contraceptive coverage. Moreover, the plaintiffs pointed out that if they fail to comply with the regulations, they will face onerous fines. The plaintiffs asserted that Notre Dame I is distinguishable on the facts, and that Notre Dame I did not address the arguments of the Catholic appellees here that (1) the Diocese is being forced to forgo $200,000 annually in increased premiums in order to maintain its grandfathered status11 to avoid its plan becoming a conduit for objectionable coverage for the employees of Catholic Charities that are enrolled in the Diocese’s health plan; and (2) the mandate has the additional effect of artificially dividing the Catholic Church into a “worship arm” and a “good works arm.”
The plaintiffs also maintained in their opening brief that the government’s “substantial burden” analysis incorrectly focuses on the nature of the actions that the regulations require the

11 “Grandfathered plans” are plans that were in existence when the ACA was adopted and that have not made certain changes to the terms of the plans. Grandfathered plans need not comply with the ACA’s coverage requirements. See 42 U.S.C. § 18011; 26 C.F.R. § 54.9815-1251T. Certain increases in premiums could cause a plan to lose its grandfathered status and thus become subject to the ACA’s coverage requirements.

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plaintiffs to take rather than the pressure the government has placed on the plaintiffs to take those actions. They contended that the focus of the analysis should be on the intensity of the coercion applied by the government to act contrary to their religious beliefs. Finally, they asserted that they object to actions they themselves must take under the regulations, not to the actions of third parties.
In their position statement, the plaintiffs contend that Notre Dame II is distinguishable on the facts, that it is not binding here, and that it is based on legal errors. Finally, the plaintiffs argue that the strict scrutiny analysis in Notre Dame II is both foreclosed by the government’s concession in this case and inconsistent with circuit precedent.
E.
We turn to the specific objections raised by the plaintiffs here. They contend that the accommodation does not operate as a true “opt-out” because it requires them to engage in numerous religiously objectionable actions. The actions to which the plaintiffs object fall under two categories: first, the mandate requires them to contract with insurance companies or third-party administrators that are authorized to provide the objectionable coverage and which will provide that coverage once the plaintiffs communicate their objections. Second, they must submit the Form 700 or notify the government directly of their objection. They sincerely believe that the required actions render them complicit in a grave moral wrong because their insurance contracts serve as conduits for the provision of the objectionable services, and the notification triggers or facilitates the provision of objectionable services. They practice their

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religion, they assert, by refusing to take actions “in furtherance of” a scheme to provide the objectionable services. And if they decline to engage in these actions, the mandate subjects them to onerous fines.
The core of the disagreement between the plaintiffs and the government lies in how we apply the substantial burden test. The plaintiffs cite our decision in Korte for the proposition that the substantial burden test under the RFRA focuses primarily on the intensity of the coercion applied by the government to act contrary to religious beliefs. Korte, 735 F.3d at 683. Citing Hobby Lobby, they also assert that the RFRA allows private religious believers to decide for themselves whether taking a particular action (such as filing the Form 700 or contracting with an insurance company) is connected to objectionable conduct in a way that is sufficient to make it immoral. Hobby Lobby, 134 S. Ct. at 2778.
In Korte, we noted that “exercise of religion” means “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 735 F.3d at 682; 42 U.S.C. § 2000cc–5(7)(A). A substantial burden on free exercise may arise when the government compels a religious person to perform acts undeniably at odds with fundamental tenets of that person’s religious beliefs, and also when the government places substantial pressure on a person to modify his or her behavior in a way that violates religious beliefs. Korte, 735 F.3d at 682. “Put another way, the substantial-burden inquiry evaluates the coercive effect of the governmental pressure on the adherent's religious practice and steers well clear of deciding religious questions.” Korte, 735 F.3d at 683. Relying on Korte and Hobby Lobby, the plaintiffs urge us to engage in a

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two-step analysis of first identifying the religious belief at issue, and second, determining whether the government has placed substantial pressure on the plaintiffs to violate that belief.
The plaintiffs are correct that it is not our province to decide religious questions. Hobby Lobby, 134 S. Ct. at 2778 (the RFRA presents the question of whether the mandate imposes a substantial burden on the ability of the objecting parties to conduct business in accordance with their religious beliefs, but courts have no business addressing whether the religious belief asserted is reasonable); Notre Dame II, 786 F.3d at 612 (an objector is the final arbiter of its religious beliefs); Little Sisters of the Poor, 794 F.3d at —, 2015 WL 4232096, at *19 (substantiality does not permit a court to scrutinize the theological merit of a plaintiff's religious beliefs); Geneva College, 778 F.3d at 436 (courts should defer to the reasonableness of a plaintiff’s religious beliefs). The plaintiffs in Hobby Lobby were closelyheld, for-profit corporations that were required by the ACA to provide and pay for health insurance which included coverage of certain emergency contraceptives that they believed operated as abortifacients. Similar to the plaintiffs here, they believed that providing the required coverage is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage. “This belief implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.” Hobby Lobby, 134 S. Ct at 2778.

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So we defer to the plaintiffs’ sincerely held beliefs regarding questions of religion and moral philosophy. But whether the government has imposed a substantial burden on their religious exercise is a legal determination. Notre Dame II, 786 F.3d at 612; Little Sisters of the Poor, 794 F.3d at —, 2015 WL 4232096, at *18; East Texas Baptist University, 793 F.3d at 456–59 & n.33; Geneva College, 778 F.3d at 436; Priests for Life, 772 F.3d at 247–49; Michigan Catholic, 755 F.3d at 385. And we are not required to defer to the plaintiffs’ beliefs about the operation of the law. Notre Dame II, 786 F.3d at 612 (although an objector is the final arbiter of its religious beliefs, it is for the courts to determine whether the law actually forces the objector to act in a way that would violate those beliefs); Little Sisters of the Poor, 794 F.3d at —, 2015 WL 4232096, at *18 (courts need not accept the legal conclusion, cast as a factual allegation, that a plaintiff’s religious exercise is substantially burdened); Geneva College, 778 F.3d at 436 (courts need not accept an objector’s characterization of a regulatory scheme on its face but may consider the nature of the action required of the objector, the connection between that action and the objector’s beliefs, and the extent to which that action interferes with or otherwise affects the objector’s exercise of religion, all without delving into the objector’s beliefs); Michigan Catholic, 755 F.3d at 385 (although a court may acknowledge that the objectors believe that the regulatory framework makes them complicit in the provision of contraception, the court will independently determine what the regulatory provisions require and whether they impose a substantial burden on the objector's exercise of religion). In this instance, and as was the case in Notre Dame I and II, the plaintiffs misapprehend the operation of federal

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law. As many courts have noted, contraceptive coverage under the ACA results from federal law, not from any actions required by objectors under the accommodations. Notre Dame II, 786 F.3d at 614; and 786 F.3d at 623 (Hamilton, J., concurring); Little Sisters of the Poor, 794 F.3d at —, 2015 WL 4232096, at *16; East Texas Baptist, 793 F.3d at 459; Geneva College, 778 F.3d at 437; Michigan Catholic, 755 F.3d at 387.
The first action to which the plaintiffs object is filing the Form 700. They assert that the Form 700 is far more than a simple notification or objection, that it instead (1) designates the third party administrator as plan administrator and claims administrator for contraceptive benefits; (2) serves as an instrument under which the plans are operated vis-à-vis contraceptive services; and (3) apprises the third party administrator of its obligations to provide contraceptive coverage. We rejected this very argument in Notre Dame II, holding that treating the mailing of the Form 700 as the cause of the provision of contraceptive services is legally incorrect. 786 F.3d at 613. The Form 700, we noted, has the effect of throwing the entire administrative and financial burden of providing contraception on the insurer and the third party administrator. 786 F.3d at 613–14. As a result, the burden is lifted from the objector’s shoulders. 786 F.3d at 614. “It is federal law, rather than the religious organization's signing and mailing the form, that requires health-care insurers, along with third-party administrators of self-insured health plans, to cover contraceptive services.” 786 F.3d at 614. See also Little Sisters of the Poor, 794 F.3d at —, 2015 WL 4232096 at *16 & *22-24 (finding that plaintiffs do not “trigger” or otherwise cause contraceptive coverage because federal law, not the act of opting out, entitles

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plan participants and beneficiaries to coverage); Geneva College, 778 F.3d at 437–38 (same); Michigan Catholic, 755 F.3d at 387 (same).
Moreover, the regulations have been amended during this litigation, and now employers need not file the Form 700. Instead, consistent with the Supreme Court’s interim orders in Little Sisters of the Poor and Wheaton College, the plaintiffs may contact the Department of Health and Human Services directly, alerting the government that they have a religious objection to providing contraceptive coverage, and providing only the name and contact information for their insurers or third party administrators. 80 Fed. Reg. 41342-47 (July 14, 2015). The burden then falls on the government to make appropriate arrangements with the insurer or third-party administrator to provide coverage for contraceptive services. The plaintiffs object to that action as well, asserting that it also makes them complicit in the provision of coverage. But that notification does nothing more than completely remove an objector from the provision of the objectionable services. See Geneva College, 778 F.3d at 436 (“While the Supreme Court reinforced in Hobby Lobby that we should defer to the reasonableness of the appellees' religious beliefs, this does not bar our objective evaluation of the nature of the claimed burden and the substantiality of that burden on the appellees' religious exercise.”). As we noted in our Notre Dame opinions, the plaintiffs are in the strange position of objecting not to the contraceptive mandate itself but to the accommodation that relieves them of any involvement in the implementation of the contraceptive mandate. Notre Dame I, 743 F.3d at 557–58; Notre Dame II, 786 F.3d at 621 (Hamilton, J., concurring). See also Little

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Sisters of the Poor Home for the Aged v. Burwell, 794 F.3d —, 2015 WL 4232096, *14-15 (10th Cir. 2015) (noting the unusual nature of a claim that attacks the government's attempt to accommodate religious exercise by providing a means to opt out of compliance with a generally applicable law).
[T]he arrangements the government makes to find substitutes for those given the benefit of a religious exemption are imposed as a matter of federal law, not as a result of the exemption itself. The party claiming the exemption is not entitled to raise a religious objection to the arrangements the government makes for a substitute.
Notre Dame II, 786 F.3d at 623 (Hamilton, J., concurring). In short, requiring an employer to notify the government of its objection to the mandate is no more burdensome than the government’s use of a girl’s Social Security number in a benefits program even though her father sincerely believed that the use of the number would harm his daughter’s spirit. See Notre Dame II, 786 F.3d at 618–19 (discussing Bowen v. Roy, 476 U.S. 693 (1986)). So too with the plaintiffs here.
The second action to which the plaintiffs object is contracting with insurers and third-party administrators who will then provide the objectionable coverage, albeit at no cost to, and without further involvement of, the plaintiffs. The plaintiffs admittedly want to provide their employees and students with health insurance; indeed they have said that it is part of their religious mission to do so. But they wish to provide health insurance without the objectionable coverage. Yet this is exactly what the accommodation allows them to do. Notre

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Dame II, 786 F.3d at 621–22 (Hamilton, J., concurring) (once an employer files the Form 700 or notifies the government directly of its religious objection, it can avoid contracting, paying, arranging, or referring for the objectionable contraceptive care); Wheaton College, 791 F.3d at 795–96 (once the college notifies its insurer or the government of its religious objections, the college and its health plans are bypassed). As with the notification requirement, the plaintiffs believe that their contracts further the provision of objectionable services. They assert that the government is using their health plans or altering the terms of their health plans to provide contraceptive coverage. But once they have objected, the government does not use the health plans or contracts at all, much less alter any terms. See Wheaton College, 791 F.3d at 796 (“Call this ‘using’ the health plans? We call it refusing to use the health plans.”). As we noted in Wheaton College:
The upshot is that the college contracts with health insurers for contraceptive coverage exclusive of coverage for emergency contraceptives, and the Department of Health and Human Services contracts with those insurers to cover emergency-contraceptive benefits. The latter contracts are not part of the college's health plans, and so the college is mistaken when it tells us that the government is “interfering” with the college’s contracts with its insurers. The contracts, which do not require coverage of emergency contraception, are unchanged. New contracts are created, to which the college is not a party, between the government and the insurers.

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Wheaton College, 791 F.3d at 796. We rejected any notion of complicity in the provision of contraceptive services arising from the mere existence of a contract to provide health insurance without any contraceptive coverage. 791 F.3d at 797. See also Little Sisters of the Poor, 794 F.3d at —, 2015 WL 4232096 at *16 (the de minimis administrative tasks required to opt out of the mandate relieves objectors from complicity); East Texas Baptist, 793 F.3d at 461 (“Under the accommodation, the contracts are solely for services to which the plaintiffs do not object; the contracts do not provide for the insurers and third-party administrators to cover contraceptives, do not make it easier for those entities to pay for contraceptives, and do not imply endorsement of contraceptives.”).
To the extent that the act of opting out causes the legal responsibility to provide contraceptive coverage to shift from the plaintiffs to their insurers or third-party administrators, this feature relieves rather than burdens their religious exercise. Little Sisters of the Poor, 794 F.3d at —, 2015 WL 4232096 at *16. As our colleagues in the Tenth Circuit noted, “An opt out religious accommodation typically contemplates that a non-objector will replace the religious objector and take over any legal responsibilities.” Little Sisters of the Poor, 794 F.3d at —, 2015 WL 4232096, *16 n.21; East Texas Baptist, 793 F.3d at 461–62 (RFRA does not entitle plaintiffs to block third parties such as the government or insurers from engaging in conduct with which the plaintiffs disagree); Geneva College, 778 F.3d at 438 n.13 (the provision of contraceptive coverage is not dependent upon the objector’s contract with its insurance company); Michigan Catholic, 755 F.3d at 388 (the government's imposition of an independent obligation on a third party does

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not impose a substantial burden on an objector’s exercise of religion).
Finally, the Catholic plaintiffs here (namely, the Diocese, Catholic Charities, St. Anne Home, Franciscan Alliance, Specialty Physicians, St. Francis and Sunday Visitor) assert what they characterize as unique RFRA claims that were not presented in the Notre Dame appeal and therefore are not resolved by the Notre Dame opinions. In particular, they argue that the mandate substantially burdens the Diocese’s religious exercise by forcing it to forgo almost $200,000 annually in increased premiums to maintain its grandfathered status so that it may avoid its health plan becoming a conduit for objectionable coverage for Catholic Charities’ employees who are enrolled in its health plan. See note 11 supra. But if the Diocese were to lose its grandfathered status, it would become exempt from the ACA’s contraceptive mandate, and Catholic Charities would be able to opt out of the mandate by employing the accommodation. As we just concluded, that scenario would not impose a substantial burden on the free exercise rights of either the Diocese or Catholic Charities.
The Catholic plaintiffs also contend that the mandate has the effect of artificially dividing the Catholic Church into a “worship” arm (the Diocese) and a “good works” arm (the remaining Catholic plaintiffs). Again, though, groups affiliated with the Diocese may opt out of providing contraceptive coverage using the accommodation and thus continue to provide health coverage under the Diocese’s health plan. Both arms of the Church are therefore extricated from the provision of objectionable contraceptive services, albeit through different means. Moreover, any division is created not by the ACA but

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by the Internal Revenue Code that excepts “churches, their integrated auxiliaries, and conventions or associations of churches” from certain requirements. See 26 U.S.C. § 6033(a)(3)(A)(i). It is difficult to see how laws and regulations that grant tax advantages to churches and their integrated auxiliaries somehow impose a substantial burden on affiliates.
III.
The accommodation does not serve as a trigger or a conduit for the provision of contraceptive services. Notre Dame II, 786 F.3d at 612–15; Wheaton College, 791 F.3d at 795–97. It is the operation of federal law, not any actions that the plaintiffs must take, that causes the provisions of services that the plaintiffs find morally objectionable. The accommodation has the legal effect of removing from objectors any connection to the provision of contraceptive services. As we noted above, every other circuit court to consider the issue of whether the mandate imposes a substantial burden on religious exercise has come to the same conclusion. As a result, the plaintiffs are not entitled to a preliminary injunction against the enforcement of the ACA regulations. If they wish to object, they may either employ the Form 700 or they may notify the Department of Health and Human Services directly. We extend the injunctions here for 60 days so that the district court may consider in the first instance the additional arguments that plaintiffs raised in support of injunctive relief. We reverse the district court’s judgments and remand for proceedings consistent with this opinion.
REVERSED AND REMANDED.

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MANION, Circuit Judge, dissenting.
The HHS accommodation is the long and winding exten‐ sion cord the government uses to power its contraceptive mandate. It winds through regulations and additions and revisions. The court, through a perfunctory examination, in‐ terprets the accommodation’s twisted framework and holds that it frees the religious nonprofits from having to power the mandate themselves and, thus, does not violate the RFRA. The court is wrong: A thorough examination reveals that the accommodation’s tangled mess is hiding the fact that the extension cord gets its power from the nonprofits’ health plans and must be plugged in before it will work. It also ex‐ poses the fact that the government is forcing the nonprofits to plug in the accommodation themselves by signing the self‐certification or providing the alternative notice.
This dissent, as long and detailed as it is, reveals that the accommodation never relieves the religious nonprofits or their health plans from the provision of contraceptive ser‐ vices which burdens their religious exercise. Section I ex‐ plains how the court, as many others have before it, uses a caricature of the HHS accommodation to avoid accepting the nonprofits’ sincerely held religious belief as required by the Supreme Court in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014). Section II shows that the nonprofits correctly understand the accommodation’s operation, so that the court must accept their sincerely held religious belief and hold that the accommodation imposes a substantial burden on their religious exercise. Section III demonstrates that the government has utterly failed to prove that the HHS ac‐

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commodation furthers a compelling governmental interest: The government has failed to establish any of the causal links necessary to prove that increasing the availability of contraceptive services will improve the health of women generally, let alone that of the nonprofits’ employees. Fur‐ thermore, the government’s stated interest is overbroad, un‐ derinclusive, and marginal at best. Section IV demonstrates that, even if the government had a compelling interest, the accommodation is not the least restrictive means. For these reasons, Section V concludes that the HHS accommodation violates RFRA, which means the nonprofits have a signifi‐ cant likelihood of success on the merits of their claim and the district court’s preliminary injunction should be affirmed. For the many reasons that follow, I dissent.
I. The court refuses to apply RFRA.
RFRA prevents the government from substantially bur‐ dening a person’s religious exercise unless the burden on the person is the least restrictive means of furthering a compel‐ ling governmental interest. 42 U.S.C. § 2000bb‐1. The Su‐ preme Court has made it abundantly clear that courts are wholly incompetent to decide whether a governmental ac‐ tion burdens a person’s religious exercise. Rather, courts must accept a person’s sincere belief that it is a burden. Hob‐ by Lobby, 134 S. Ct. at 2778–79. Courts determine whether the burden is substantial, but they do so by examining the level of coercion applied to compel compliance, not what is re‐ quired by that compliance and to what extent it violates the person’s religion. Id. at 2779; Korte v. Sebelius, 735 F.3d 654, 683 (7th Cir. 2013). Thus, the proper analysis is to determine

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first, that the nonprofits have a sincere belief that compliance with the law would violate their religion, and second, that the pressure applied by the government to coerce compli‐ ance with the law is substantial. The outcome of a thorough and proper analysis is ultimately simple and straightfor‐ ward: As in Hobby Lobby, the government concedes the sin‐ cerely held religious belief and the fines imposed for non‐ compliance are “enormous.” Hobby Lobby, 134 S. Ct. at 2779. So, following Hobby Lobby, the accommodation imposes a substantial burden. That the government labels it an ac‐ commodation makes no difference to the burden it imposes on the nonprofits. The analysis remains the same.
The court does not apply these straightforward steps be‐ cause it balks at the idea that we must accept a person’s as‐ sertion that a law burdens their religion. The court fears that such a rule will allow a person to escape any number of reg‐ ulations, including this brave new world of free and univer‐ sal contraceptives, unless the government can meet the strict scrutiny test laid down by RFRA.1 This was the same con‐ cern that prompted the Supreme Court’s decision to limit free exercise protections in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990). Hobby Lobby, 134 S. Ct. at 2761–62. Nevertheless, when it enacted RFRA, Congress meant to restore exactly the level of protection to religious exercise that now so concerns the court. Id. at 2761–

1 What goes unsaid by this critique is the conclusion that the non‐ profits’ religious beliefs are less deserving of protection than the gov‐ ernment’s scheme to marginally increase the availability of contraceptive services for certain employees.

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62; Korte, 735 F.3d at 671–72. So, foreclosed by the Supreme Court, the court rules as it and many others have before: The court rejects the nonprofits’ sincere belief that compliance with the HHS accommodation is prohibited by their religion by holding that the nonprofits misunderstand the manner in which the accommodation operates. Then, acting as an ex‐ pert theologian, the court holds that the accommodation’s operation as understood by the court is not a substantial burden to the nonprofits’ religious exercise. Ante, at 38; see also Wheaton Coll. v. Burwell, 791 F.3d 792 (7th Cir. 2015); Univ. of Notre Dame v. Burwell, 786 F.3d 606 (7th Cir. 2015) (Notre Dame II); Michigan Catholic Conference v. Burwell, 2015 WL 4979692 (6th Cir. Aug. 21, 2015); Little Sisters of the Poor Home for the Aged v. Burwell, 794 F.3d 1151 (10th Cir. Jul. 14, 2015); East Texas Baptist Univ. v. Burwell, 793 F.3d 449 (5th Cir. Jun. 22, 2015); Geneva College v. Secretary United States Dep’t of Health & Human Servs., 778 F.3d 422 (3d Cir. 2015); Priests for Life v. United States Dep’t of Health & Human Servs., 772 F.3d 229 (D.C. Cir. 2014). But cf. Notre Dame II, 786 F.3d at 626 (Flaum, J., dissenting); Little Sisters, 794 F.3d 1151, 2015 WL 4232096, *41 (Baldock, J., dissenting); Priests for Life v. United States HHS, 2015 U.S. App. LEXIS 8326, *16 (D.C. Cir. May 20, 2015) (en banc denied) (Brown, J. and Kavanaugh, J., dis‐ senting); Eternal Word Television Network, Inc. v. Sec’y, U.S. Dep’t of Health & Human Servs., 756 F.3d 1339, 1340 (11th Cir. 2014) (Pryor, J., concurring).
The court does this by improperly judging the nonprofits’ religious beliefs and ignoring the penalties used for compli‐ ance. Had the nonprofits said that they sincerely believe that the HHS accommodation violates their religion and left it at

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that, perhaps the injunction would remain in place because there would be nothing for the court to attack. But since the nonprofits said that they sincerely believe that the accom‐ modation violates their religion because the accommodation makes them complicit in the provision of contraceptive ser‐ vices, the court has attacked their claim that the law makes them complicit. The court is right that it is “not required to defer to the plaintiffs’ beliefs about the operation of the law.” Ante, at 31. Nevertheless, it is the nonprofits that are right about the operation of the law, not the court.
II. The accommodation imposes a substantial burden on the nonprofits’ religious exercise.
The court denies that the self‐certification and alternative notice process trigger the provision of contraceptive cover‐ age. According to the court, it is federal law, not the self‐ certification form or alternative notice, which results in the contraceptive coverage. The court says that self‐certification throws the burden of contraceptive coverage on to the non‐ profits’ health insurance issuers (insurers) and third party administrators (TPAs). Ante, at 32. But how does this lift the burden off the nonprofits when the accommodation imposes the “free” contraceptive coverage requirement only on the insurers and TPAs that the nonprofits have hired? In spite of that imposition, the court also denies that the accommoda‐ tion uses the nonprofits’ health plans to provide the contra‐ ceptive coverage. Instead, it says that the government con‐ tracts with the insurers and TPAs to provide the coverage to only the beneficiaries on the nonprofits’ health plans. Ante, at 35. But, given that connection with the nonprofits’ health

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plans, how can the provision of coverage be completely in‐ dependent of those same plans?
The court can only make such sweeping claims by ignor‐ ing the true operation of the accommodation and the legal consequences the government has attached to the self‐ certification and alternative notice. The court may think that the nonprofits “throw” their burden onto their insurers and TPAs, but it ignores who is forced to do the throwing and who ultimately carries the burden once thrown. A close ex‐ amination of the manner in which the regulations actually operate reveals that the government’s promise of accommo‐ dation is illusory. The nonprofits’ claim that the HHS ac‐ commodation makes them complicit in the provision of con‐ traceptive coverage becomes obvious.
A. The self‐certification form and alternative notice trigger the coverage of contraceptive services.
The court holds that the self‐certification and alternative notice are simply signs that the nonprofits have opted out of providing contraceptive coverage, and once the sign is made known the law obliges the nonprofits’ insurers and TPAs to provide the unwanted coverage. Ante, at 32–33. In reality, once the nonprofits formally object, they are opted in. The self‐certification and alternative notice do more than give notice of the nonprofits’ objections. And they are much more than de minimis paperwork necessary to effectuate the non‐ profits’ objection. They create the insurers’ and TPAs’ obliga‐

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tion to provide the contraceptive coverage.2 For a nonprofit with a self‐insured plan, the effect of the self‐certification and alternative notice is abundantly clear: the government makes them legal instruments under which the nonprofit’s health plan is operated. This then allows the regulations to treat them as legal designations of the TPA as plan adminis‐ trator and claims administrator for coverage of contraceptive services under the nonprofit’s health plan.3 Only a nonprofit can designate its plan administrator.4 The government’s abil‐ ity to define how a plan administrator is designated does not give it the power to designate who will be a plan administra‐

2 45 C.F.R. § 147.131(c)(2)(i) (“A group health insurance issuer that re‐ ceives a copy of the self‐certification or notification … must … [p]rovide sepa‐ rate payments for any contraceptive services for plan participants and beneficiaries for so long as they remain enrolled in the plan.” (emphasis added)); 29 C.F.R. § 2590.715–2713A(c)(2)(i) (identical requirement for TPAs); 78 Fed. Reg. 39878 (listing among the key elements of the accom‐ modation the need for eligible organizations with insured group health plans to self‐certify and that it is the “issuer that receives a self‐ certification” that must comply with the accommodation’s require‐ ments); 78 Fed. Reg. 39880 (“A third party administrator that receives a copy of the self‐certification … must provide or arrange separate pay‐ ments for contraceptive services … .”).
3 78 Fed. Reg. 39879 (“The self‐certification … will be treated as a designation of the third party administrator(s) as plan administrator and claims administrator for contraceptive benefits pursuant to section 3(16) of ERISA.”); 29 C.F.R. § 2510.3–16 (defining the term plan administrator to include the regulatory treatment of the self‐certification and alterna‐ tive notice as acts of designation and declaring that each “shall be an in‐ strument under which the plan is operated”).
4 29 U.S.C. § 1102(a)(2).

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tor.5 For the TPA to have the necessary authority to provide coverage for contraceptive services, the nonprofit must desig‐ nate the TPA as a plan administrator.6 Such an act would ob‐ viously violate the nonprofit’s religion. So the government has loaded the self‐certification and alternative notice with the legal significance of designating the TPA. It is not the op‐ eration of law. It is the acts of self‐certification and alterna‐ tive notice that designate the TPA and facilitate the provision of the unwanted contraception coverage. Without possession of the self‐certification or alternative notice, the TPA cannot receive reimbursement for the provision of contraceptives.7 In sum, the government can only require the nonprofits’ TPAs to cover contraceptive services if the nonprofits give the government the legal authority to do so. The government has hidden that legal authority in self‐certification and alter‐ native notice.
For insurers the situation is not as clear, but it is not the less burdensome. The law requires insurers to include con‐ traceptive coverage in every health plan they offer.8 (Insurers will not, however, provide something for which they are not

5 29 U.S.C. § 1002(16)(A).
6 78 Fed. Reg. 39880 (“The third party administrator serving as the plan administrator for contraceptive benefits ensures that there is a party with legal authority to arrange for payments for contraceptive services and administer claims in accordance with ERISA’s protections for plan participants and beneficiaries.”).
7 See infra note 18.
8 45 C.F.R. § 147.131(a)(1).

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paid.9) The self‐certification and alternative notice permit an insurer to offer a health plan that appears not to include con‐ traceptive coverage. But this is on the condition that the in‐ surer still provides the coverage itself in the form of direct payments.10 The assertion that it is the operation of law that designates an objecting nonprofit’s insurer as the replace‐ ment is misleading. It ignores the fact that but for the non‐ profit’s hiring of the insurer, and the nonprofit’s continuing contractual relationship with it, the government (or the op‐ eration of law) would not make any designation. Without the objection and designation by the nonprofits, the insurer is not required to act at all, despite the court’s claim to the contrary. The government has turned the act of objecting into the act of designating and it cannot escape the consequences of that conflation by calling it an act of law.
This is not like the case of a conscientious objector who objects and the government finds a replacement. Under the regulations, the government does not find the replacement, the nonprofit does. The designation does not take place un‐ less the nonprofit either delivers the self‐certification form to its insurer or TPA, or uses the alternative notice to inform the government who its insurer or TPA is and which health plan is at issue. By insisting that the nonprofit deliver the form or supply the plan information for the government’s use, the government uses the objecting nonprofit to do its

9 See infra note 21. 10 See supra note 2.

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dirty work. The government has not provided an exit—it of‐ fers a revolving door with only one opening.11
Furthermore, this is not like the case of a conscientious objector who refuses to object and goes to jail, and the gov‐ ernment still finds a replacement. If the nonprofits refuse to self‐certify or provide the alternative notice and instead pay the huge fines, their insurers and TPAs will not automatical‐ ly provide the contraception coverage. To comply with the law, the insurers would refuse to sell plans without the cov‐ erage, while the TPA would refuse to provide their services. In spite of the huge monetary penalties, the nonprofits would still be prevented from providing health plans for their employees, which they have asserted is also a violation of their religious beliefs. So the no‐win substantial burden would hit them on both sides.
The court has implied that requiring the nonprofit to identify its insurer (or TPA) is merely the most efficient means for the government to achieve its objective, Wheaton, 791 F.3d at 798, but efficiency does not excuse the substantial burden imposed by the requirement. Identifying its insurer so that the government can instruct that insurer to provide

11 This is not the case of a conscientious objector walking into the draft board, voicing his objection, being excused, and walking out. For the analogy to fit the HHS accommodation, the draft board must decide that every objector will be replaced by the objector’s friend, and the ob‐ jector’s objection is only effective if the objector delivers written notice of his objection to his friend or tells the draft board who his friend is and where the board can find him. Then, the objector must send his friend money so that that his friend will remain his friend for the purpose of being his replacement.

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contraceptive coverage is just as burdensome to the nonprof‐ it as if it had to pick its own replacement, because it has done just that by hiring its insurer and then objecting to the coverage requirement. That the nonprofits could not object if the government, on its own, were to find a replacement in‐ surer and discover to which employees it had to provide the coverage is not relevant. Of course the nonprofits would not have an objection to the government contracting with a third party to provide the contraceptive coverage to other third parties. They believe the provision of objectionable contra‐ ceptives is always immoral, but they know they have no le‐ gal means to stop the government from contracting with third parties. That is not what is happening here. The gov‐ ernment is using the nonprofits, their health plans, and their contractual relationships with their insurers and TPAs, to provide the contraception coverage to which they object.
B. The accommodation uses the nonprofits’ health plans.
The HHS accommodation requires significantly more in‐ volvement on the part of the nonprofits and their health plans than the court relates. For starters, the accommodation does not create independent policies or contracts. In fact, as the nonprofits assert, the accommodation relies wholly on the existing contract between the nonprofits and the insurers and TPAs to provide separate payments directly to the non‐ profits’ health plan beneficiaries.12 The accommodation must

12 78 Fed. Reg. 39874 (“[T]he accommodations established under these final regulations do not require the issuance of a separate excepted bene‐ fits individual health insurance policy covering contraceptive services … but

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use the existing insurance contracts to issue payments be‐ cause separate policies would violate insurance laws.13 The separate payments are only provided so long as an employ‐ ee is enrolled in the nonprofit’s health plan, thus requiring the nonprofits’ health plans to determine eligibility.14 The ac‐ commodation also relies on the nonprofits’ health plans’ en‐ rollment procedures. The insurers and TPAs must provide notice of the separate payments when they provide notice of the other benefits under the nonprofits’ health plans.15 The separate payments can be limited to the same provider net‐ work as the other plan benefits.16 The end result is that the

instead require a simpler method of providing direct payments for con‐ traceptive services.” (emphasis added)).
13 78 Fed. Reg. 39876 (“As the payments at issue derive solely from a federal regulatory requirement, not a health insurance policy, they do not implicate issues such as issuer licensing and product approval re‐ quirements under state law … ”).
14 45 C.F.R. § 147.131(c)(2)(i)(B) (insurers must “[p]rovide separate payments for any contraceptive services … for plan participants and beneficiaries for so long as they remain enrolled in the plan.”); 29 C.F.R. § 2590.715–2713A(c)(2)(i)(B) (identical regulatory requirements for TPAs).
15 78 Fed. Reg. 39881 (“The notice [regarding the provision of contra‐ ceptive services] must be provided contemporaneous with (to the extent possible), but separate from, any application materials distributed in connec‐ tion with enrollment (or re‐enrollment) in coverage … .” (emphasis add‐ ed)).
16 78 Fed. Reg. 39877 (“[A]n issuer … may require that contraceptive services be obtained in‐network (if an issuer has a network of providers) in order for plan participants and beneficiaries to obtain such services without cost sharing.” (emphasis added)).

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contraceptive services become a de facto benefit under the nonprofits’ health plans.17 The government admitted as much when it stated that it was by design that the accom‐ modation makes the provision of contraceptive coverage “seamless[]” with the other plan benefits. Gov’t Supp and Reply Br., 14. These circumstances sharply conflict with the court’s conclusion that the accommodation does not use the nonprofits’ health plans and “makes every effort to separate religious employers from the provision of any objectionable services.” Ante, at 23. “[E]very effort” does not disguise the fact that the offensive provision is inseparably imbedded in the nonprofits’ health plan. Id.
A further indication that the accommodation uses the nonprofits’ health plans is the fact that the only way an em‐ ployee receives coverage for contraceptive services under the accommodation is to enroll in the objecting nonprofit’s health plan. An employee cannot reject coverage under the nonprofit’s plan and still receive coverage under the accom‐ modation. The coverage under the accommodation is not separate from the coverage under the nonprofit’s health plan. It is the employee’s status as a beneficiary of the non‐ profit’s health plan, not as an employee, that entitles the em‐ ployee to coverage under the accommodation. Simply being hired as an employee is not enough to receive coverage; an

17 78 Fed. Reg. 39880 (“[T]he self‐certification … identifies the limited set of plan benefits (that is, contraceptive coverage) that the employer re‐ fuses to provide and that the third party administrator must therefore provide or arrange for an issuer or another entity to provide.” (emphasis added)).

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employee must enroll in the nonprofit’s health plan. Cf. Notre Dame II, 786 F.3d at 617.
C. The nonprofits are involved in the payment for con‐ traceptive services.
Finally, there is the matter of payment. For TPAs, the self‐ certification and alternative notice act as authorizations for payment, without which the TPAs cannot receive reim‐ bursement from the government for payments made under the accommodation.18 The government assumed that the re‐ imbursements for TPAs would not be passed on to the non‐

18 Payments for contraceptive services provided by TPAs under the HHS accommodation are funded through an adjustment (i.e., discount) to the federally‐facilitated exchange (FFE) user fee. See 78 Fed. Reg. 39882. The FFE user fee is paid by insurance issuers that participate in a federal health care exchange to support the operations of the exchange. See 78 Fed. Reg. 15412; 45 C.F.R. § 156.50(c). The amount of the adjust‐ ment is equal to the total amount of the payments made for contracep‐ tive services provided by the TPA plus an allowance of at least 10 percent for administrative costs. 45 C.F.R. § 156.50(d)(3). To receive the FFE user fee adjustment, a TPA must submit to HHS “[a]n attestation that the payments for contraceptive services were made in compliance with 26 CFR 54.9815‐2713A(b)(2) or 29 CFR 2590.715‐2713A(b)(2).” 45 CFR § 156.50(d)(2)(iii)(E). Both the provisions cited by § 156.50 provide that the TPA will provide the separate payments for contraceptive services “[i]f a third party administrator receives a copy of the self‐certification from an eligible organization or a notification.” 26 CFR § 54.9815‐2713AT(b)(2) and 29 CFR § 2590.715‐2713A(b)(2). Moreover, § 156.50 requires a TPA which receives an adjustment to maintain for 10 years and make availa‐ ble upon request “[a] copy of the self‐certification referenced in 26 CFR 54.9815‐2713A(a)(4) or 29 CFR 2590.715‐2713A(a)(4) for each self‐insured plan with respect to which an adjustment is received.” 45 CFR § 156.50(d)(7)(i).

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profits but, as more nonprofits are forced to use the accom‐ modation and more contraceptive services are provided un‐ der the accommodation, that assumption is unlikely to prove true.19 For insurers there is ostensibly no reimbursement be‐ cause the government claims the cost of contraceptive ser‐ vices will be offset by the reduction in unintended pregnan‐ cies.20 Whether this claim is true will be hard to determine because the regulations allow insurers to recapture costs for contraceptive services provided under the accommodation through what is called the “risk corridor program.”21 The

19 The government assumed that the adjustments granted under the accommodation for 2014 would be small enough to have no impact on the fee. 78 Fed. Reg. 39882. However, the FFE user fee will have to be increased to cover 1) more adjustments as more nonprofits are forced to take advantage of this accommodation, and 2) greater adjustments be‐ cause the HHS mandate incentivizes more expensive forms of contracep‐ tion. An increase in the FFE user fee will eventually be recouped through an increase in premiums, albeit an increase across the insurance issuer’s entire portfolio, but the nonprofits may be in that same portfolio.
20 78 Fed. Reg. 39877 (“The Departments continue to believe, and have evidence to support, that, with respect to the accommodation for insured coverage established under these final regulations, providing payments for contraceptive services is cost neutral for issuers.”).
21 78 Fed. Reg. 39878 (“[A]n issuer of group health insurance cover‐ age that makes payments for contraceptive services under these final regulations may treat those payments as an adjustment to claims costs for purposes of medical loss ratio and risk corridor program calculations. This adjustment compensates for any increase in incurred claims associ‐ ated with making payments for contraceptive services.”). The “risk cor‐ ridor program” is a complex cost‐sharing program in which insurers with healthier beneficiaries cover the costs of insurers which either failed to raise premiums or could not raise premiums enough to cover more

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program is temporary, but since the HHS accommodation was enacted during the program’s implementation, it will be difficult to determine how the accommodation’s separate payments affect premiums. Nevertheless, if it were true that payments for contraceptive services are cost‐neutral, then the premiums that would otherwise go toward childbirths are instead used for contraceptive services in order to reduce

costly beneficiaries, including those that received separate payments for contraceptive services. See 45 C.F.R. § 153.500 et seq.; 78 Fed. Reg. 7235 (“Section 1342 of the Affordable Care Act directs the Secretary to estab‐ lish a temporary risk corridors program that provides for the sharing in gains or losses resulting from inaccurate rate setting from 2014 through 2016 between the Federal government and certain participating plans.”); see also 78 Fed. Reg. 72323 (“In 2014, HHS will also operationalize the premium stabilization programs established by the Affordable Care Act—the risk adjustment, reinsurance, and risk corridors programs— which are intended to mitigate the impact of possible adverse selection and stabilize the price of health insurance in the individual and small group markets.”). The program is supposed to pay for itself, but the reg‐ ulations allow the government to use appropriated funds to cover insur‐ er loses. See 79 Fed. Reg. 30260 (“In the unlikely event of a shortfall for the 2015 program year, HHS recognizes that the Affordable Care Act requires the Secretary to make full payments to issuers. In that event, HHS will use other sources of funding for the risk corridors payments, subject to the availability of appropriations.”). Perhaps this is why insur‐ ers do not object to the HHS accommodation. Insurers know that the federal government will ultimately bear the burden of covering the costs for contraceptive services they are unable to recoup. The risk corridor program has been criticized as a health insurer bailout program. See No‐ am N. Levey, Critics call Obama funding plan for health insurer losses a ‘bailout’, L.A. TIMES, May 21, 2014, http://www.latimes.com/nation/la‐ na‐insurance‐bailout‐20140521‐story.html (last visited Sept. 3, 2015).

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childbirths because the nonprofits’ premiums are the only source of funding. This is also an objectionable outcome.
D. The proper substantial burden analysis: the court must accept the nonprofits’ sincere belief that the accommo‐ dation violates their religion because the nonprofits under‐ stand its operation.
The HHS accommodation is a purposely complicated act of bureaucratic legalese and accounting tricks that enables the government to claim that the objecting nonprofits have nothing to do with the provision of contraceptive services. Yet, as shown in much detail above, the accommodation in‐ fects the nonprofits’ health plans with an offensive provision that eradicates their purpose, which is the exercise of the nonprofits’ religion. It is the nonprofits which understand the operation of the HHS accommodation, not the court, and we must accept their sincere belief that it violates their reli‐ gion. The accommodation imposes a substantial burden be‐ cause the nonprofits have a sincere belief that compliance with the law violates their religion and the penalties applied by the government to coerce compliance are enormous.
III. The accommodation does not further a compelling gov‐ ernmental interest.
The government must grant the nonprofits an exemption from the accommodation unless “it demonstrates that appli‐ cation of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restric‐ tive means of furthering that compelling governmental in‐ terest.” 42 U.S.C. § 2000bb‐1 (emphasis added). “This re‐ quires us to look beyond broadly formulated interests and to

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scrutinize the asserted harm of granting specific exemptions to particular religious claimants—in other words, to look to the marginal interest in enforcing the contraceptive mandate in these cases.” Hobby Lobby, 134 S. Ct. at 2779 (internal quo‐ tation and alteration marks omitted). “RFRA creates a broad statutory right to case‐specific exemptions from laws that substantially burden religious exercise even if the law is neu‐ tral and generally applicable, unless the government can sat‐ isfy the compelling‐interest test.” Korte, 735 F.3d at 671. “In short, RFRA operates as a kind of utility remedy for the inev‐ itable clashes between religious freedom and the realities of the modern welfare state, which regulates pervasively and touches nearly every aspect of social and economic life.” Id. at 673.
“Congress’s express decision to legislate the compelling interest test indicates that RFRA challenges should be adju‐ dicated in the same manner as constitutionally mandated applications of the test … .” Gonzales v. O Centro Espirita Be‐ neficente Uniao do Vegetal, 546 U.S. 418, 430 (2006). Thus, the government “must specifically identify an ‘actual problem’ in need of solving, and the curtailment of [the right] must be actually necessary to the solution.” Brown v. Entmʹt Merchs. Assʹn, 131 S. Ct. 2729, 2738 (2011) (citation omitted). This re‐ quires a “high degree of necessity.” Id. at 2741. The govern‐ ment must show a “direct causal link.” Id. at 2738. The gov‐ ernment’s “predictive judgment” is insufficient, “and be‐ cause it bears the burden of uncertainty, ambiguous proof will not suffice.” Id. at 2738–39. (citation omitted). The gov‐ ernment must prove that what it seeks to regulate actually causes the harm it wishes to prevent; evidence of a correlation

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is insufficient. Id. at 2739. “[S]tudies [that] suffer from signif‐ icant, admitted flaws in methodology” fail to provide this proof. Id. If the regulation is underinclusive it is a sign that the governmental interest is not compelling. Id. at 2740. Put another way, “only those interests of the highest order and those not otherwise served” can be considered compelling. Wisconsin v. Yoder, 406 U.S. 205, 215 (1972). But, “a law can‐ not be regarded as protecting an interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited.” Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 547 (1993) (internal quotation and al‐ teration marks omitted). Finally, the government does not have a compelling interest in “[f]illing the remaining modest gap” or in “each marginal percentage point by which its goals are advanced.” Brown, 131 S. Ct. at 2741, n.9.
The government asserts the same interest in furtherance of the HHS accommodation that it asserts in furtherance of the HHS contraceptive mandate, namely, the increased availability of contraceptive services to improve the health of women. The government also says that it wishes to increase the availability of contraceptive services to equalize the pro‐ vision of preventive care for women and men so that women can participate in the workforce and society on an “equal playing field with men.” The latter interest boils down to a concern for women’s health. The government claims that the inequality stems from the additional cost of contraception and that the additional cost can deter women from using contraceptives, thus allowing the negative health outcomes that prevent women from achieving equal economic status. 77 Fed. Reg. 8728.

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To justify increasing the availability of contraception to improve the health of women, the government relies exclu‐ sively on the Institute of Medicine’s 2011 study, Clinical Pre‐ ventive Services for Women: Closing the Gaps (IOM Study). The IOM Study is a 235‐page study of the current preventative services available for women. Only eight pages of the study deal with the issue of contraceptive services. IOM Study, 102–09. The study does not claim that contraceptives im‐ prove women’s health generally, but that they prevent cer‐ tain negative health outcomes associated with unintended pregnancies. See Priests for Life, 772 F.3d at 261 (“A core rea‐ son the government sought under the ACA to expand access to contraception is that use of contraceptives reduces unin‐ tended pregnancies.”). The government’s interest advanced by the accommodation, then, is best identified as increasing the availability of contraceptive services in order to prevent the negative health outcomes caused with unintended preg‐ nancies. When put to the test, the government’s interest fails to prove compelling.22
A. A lack of available contraception and unintended pregnancies are not actual problems in need of solving.
The HHS accommodation relies on a lengthy chain of causality: 1) the accommodation will make contraceptives more available by removing administrative and cost bur‐ dens; 2) if contraceptives are more available, then more

22 For a comprehensive explanation of how the government’s inter‐ est thoroughly fails the compelling interest test, see generally Helen Al‐ varé, No Compelling Interest: The “Birth Control” Mandate and Religious Freedom, 58 VILL. L. REV. 379 (2013).

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women will use them; 3) if more women use contraceptives, then there will be fewer unintended pregnancies; and 4) if there are fewer unintended pregnancies, then there will be fewer of the negative health outcomes associated with them. The government, therefore, must prove more than the exist‐ ence of negative health outcomes. It must prove first, that unintended pregnancies cause the negative outcomes; sec‐ ond, that contraceptive use will cause fewer unintended pregnancies; and third a higher availability of contraceptives will cause more women to use them. The IOM Study fails to prove these “direct casual links.” Brown, 131 S. Ct. at 2738. Instead, the study shows merely a correlation.
First, the study admits that “for some outcomes [of unin‐ tended pregnancy], research is limited.” Id. at 103. It then proceeds to describe the outcomes correlated with unintend‐ ed pregnancies: outcomes that “may” or “may not” happen, are “more” or “less likely,” have been “reported,” and have “increased odds,” or are “associated with.” IOM Study 103.
Second, the study discusses “evidence of [contraceptive] method effectiveness,” but does not prove that increasing the use of even an effective contraceptive causes fewer unin‐ tended pregnancies. This is because such a simple correla‐ tion does not take into account the factors that inhibit perfect use of contraception or the societal changes that result from increased reliance on contraception.23 Rather than prove that

23 See Alvaré, supra note 22, at 408–411 for a discussion of the “grow‐ ing body of scholarship … indicating that the persistence or worsening of high rates of unintended pregnancy, abortion, and sexually transmit‐ ted diseases, and also our nation’s high rates of nonmarital births (the

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greater contraceptive use causes fewer unintended pregnan‐ cies, the study only states that “evidence exists” that it does. Id. at 105. The IOM study bases this statement on two other studies, but they are insufficient to provide the necessary ev‐ idence.24 According to the study, “[i]t is thought that greater use of long‐acting, reversible contraceptive methods— including intrauterine devices and contraceptive implants that require less action by the woman and therefore have lower use failure rates—might help further reduce unintend‐ ed pregnancy rates.” Id. at 108 (emphasis added; citation omitted).
Third, the study fails to prove that increasing the availa‐ bility of contraceptives will cause an increase in their use, but concludes that “[t]he elimination of cost sharing for con‐ traception therefore could greatly increase its use, including use of the more effective and longer‐acting methods, espe‐ cially among poor and low‐income women most at risk for unintended pregnancy.” IOM Study, 109 (emphasis added). However, the conclusion that eliminating cost sharing “could” increase its use is based on two studies, neither of which concerned contraceptive services specifically. The first concerned preventative and primary care services generally, and the second concerned mammograms. Id. The final claim the study makes is that “when out‐of‐pocket costs for con‐

chief predictor of female poverty), are the ‘logical’ result—in economic and psychological terms—of the new marketplace for sex and marriage made possible by increasingly available contraception (in some cases, combined with available abortion).”
24 Alvaré, supra note 22, at 399‐405.

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traceptives were eliminated or reduced, women were more likely to rely on more effective long‐acting contraceptive methods.” Id. But, a review of the study underlying that con‐ clusion reveals that “[w]e cannot be certain that the changes in procurement were solely due to the removal of cost to the patient, but there was a shift toward prescribing the most effective methods ([intrauterine contraceptives] and injecta‐ ble contraceptives) and a substantial increase in prescribing of [emergency contraceptive pills].”25 So, not only was the study inconclusive, it is ambiguous regarding the IOM Study’s intended purpose because a substantial increase in emergency contraceptive pills would seem to follow from a decrease in regular contraceptive use. On the whole, the IOM study’s lack of causality renders the government’s claim that it must increase the availability of contraceptives noth‐ ing more than a “predictive judgment.” Brown, 131 S. Ct. at 2738.
Another reason the IOM Study fails to prove “an ‘actual problem’ in need of solving” is because it is overbroad. Brown, 131 S. Ct. at 2738. The study starts with the estimation that “[i]n 2001, … 49 percent of all pregnancies in the United States were unintended,” but the study defines an unintend‐ ed pregnancy as one that is “unwanted or mistimed at the time of conception.” IOM Study, 102. This definition includes pregnancies that were unwanted at the time of conception, but still wanted when the mother discovered she was preg‐ nant, and mothers who intended to become pregnant, but

25 Debbie Postlethwaite, et al., A comparison of contraceptive procure‐ ment pre‐ and post‐benefit change, 76 CONTRACEPTION 360, 364 (2007).

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did not intend to become pregnant by the specific conjugal act that resulted in conception. The government has zero in‐ terest in preventing these pregnancies. Under the study’s overbroad definition, “all sexually active women with re‐ productive capacity are at risk for unintended pregnancy.” Id. at 103. Aside from the study’s problems with its own def‐ inition, unintended pregnancies are an extremely difficult thing to quantify.26
Overall, the IOM Study lacks the necessary quality and rigor. It heavily relies on studies from biased organizations, such as the Guttmacher Institute and the journal CONTRACEPTION, and offers no consideration of competing studies. Id. at 102–109. The study’s own dissenting opinion says it best:
Readers of the Report should be clear on the fact that the recommendations were made without high quality, systematic evidence of the preventive nature of the services consid‐ ered. Put differently, evidence that use of the services in question leads to lower rates of dis‐ ability or disease and increased rates of well‐ being is generally absent.
The view of this dissent is that the commit‐ tee process for evaluation of the evidence lacked transparency and was largely subject to the preferences of the committee’s composition. Troublingly, the process tended to result in a

26 Alvaré, supra note 22, at 396–97.

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mix of objective and subjective determinations filtered through a lens of advocacy. An abiding principle in the evaluation of the evidence and the recommendations put forth as a conse‐ quence should be transparency and strict ob‐ jectivity, but the committee failed to demon‐ strate these principles in the Report. This dis‐ sent views the evidence evaluation process as a fatal flaw of the Report particularly in light of the importance of the recommendations for public policy and the number of individuals, both men and women, that will be affected.
IOM Study, 232–33.
The study itself shows that the lack of available contra‐ ceptive services is not a problem in need of solving. Accord‐ ing to the IOM Study, “[c]ontraceptive coverage has become standard practice for most private insurance and federally funded insurance programs.” Id. at 108. Further, “[s]ince 1972, Medicaid, the state‐federal program for certain low‐ income individuals, has required coverage for family plan‐ ning in all state programs and has exempted family planning services and supplies from cost‐sharing requirements.” Id. Finally,
[C]omprehensive coverage of contraceptive services and supplies [is] “the current insur‐ ance industry standard,” with more than 89 percent of insurance plans covering contracep‐ tive methods in 2002. A more recent 2010 sur‐ vey of employers found that 85 percent of large

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employers and 62 of small employers offered coverage of FDA‐approved contraceptives.
Id. at 109 (citations omitted). Not only are contraceptive ser‐ vices already widely available, but they are also already widely used: “More than 99 percent of U.S. women aged 15 to 44 years who have ever had sexual intercourse with a male have used at least one contraceptive method.” IOM Study, 103 (citation omitted). According to the Centers for Disease Control and Prevention, contraceptive use is “virtu‐ ally universal among women of reproductive age.”27
The study similarly fails to prove that there is a need to increase the availability of contraceptives to alleviate “the increased risk of adverse pregnancy outcomes for pregnan‐ cies that are too closely spaced” or for “women with certain chronic medical conditions” who “may need to postpone pregnancy” and “women with serious medical conditions” for whom “pregnancy may be contraindicated.” IOM Study, 103. Amazingly, the study does not even pretend to demon‐ strate a causal link in these circumstances, relying instead on the reader to make the inference mistakenly. The study hopes the reader ignores the common sense fact that women in these circumstances have a higher incentive to use contra‐ ceptives if that is their chosen method to prevent these out‐ comes.

27 CDC, “Advance Data No. 350, Dec. 10, 2004: Use of Contraception and Use of Family Planning Services in the United States: 1982‐2002”, http://www.cdc.gov/nchs/data/ad/ad350.pdf (last visited Sept. 3, 2015).

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The study offers no evidence regarding the effects that extra paperwork or other administrative and logistical ob‐ stacles would have on contraceptive availability or use. Such a finding is absolutely necessary for the government to as‐ sert that it has a compelling interest in using the nonprofits’ health plans so that the coverage for contraceptive services will be “seamless.” Instead, the IOM Study’s conclusions are limited to the elimination of cost‐sharing and provide no reason why a government‐run option would not work equal‐ ly as well as the HHS accommodation.
Finally, the IOM Study does not concern the employees of the nonprofits who are less likely to use contraception given their own religious beliefs. Instead, its conclusions mostly concern the “poor and low‐income women most at risk for unintended pregnancy.” Id. at 109. The study’s hope is that the elimination of cost sharing for contraception will induce the poor to use more effective, long‐acting methods, such as IUDs, implants, and sterilization. Id. at 108‐109. However, “the government must establish a compelling and specific justification for burdening these claimants.” Korte, 735 F.3d at 685; see also Hobby Lobby, 134 S. Ct. at 2761. The IOM Study fails to prove any connection whatsoever with the nonprofits’ employees. In fact, there are already a high level of access to contraception, a higher rate of use, and an increased use of more effective methods among the women with more income and education.28 Simply put, the IOM study fails to “specifically identify an ‘actual problem’ in need of solving,” and, consequently, the government has

28 Avaré, supra note 22, at 426.

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failed to demonstrate a compelling interest. Brown, 131 S. Ct. at 2738.
B. The accommodation is underinclusive.
The HHS accommodation’s underinclusiveness is another sign that the governmental interest is not compelling. Id. at 2740. The government “leaves appreciable damage to that supposedly vital interest unprohibited” by allowing reli‐ gious employers, grandfathered plans, and employers with fewer than 50 employees to avoid providing contraceptive coverage. Lukumi, 508 U.S. at 547 (internal quotation marks omitted). Although more health plans will lose their grand‐ fathered status the longer the ACA is in place, the number of persons employed by religious employers and organizations with fewer than 50 employees will remain considerable in light of the less than 2,000 covered employees concerned here.
The accommodation is also underinclusive because it does not account for the other causes of the negative health outcomes the IOM Study correlates with unintended preg‐ nancies. According to the study, “women with unintended pregnancies are more likely than those with intended preg‐ nancies to receive later or no prenatal care, to smoke and consume alcohol during pregnancy, to be depressed during pregnancy, and to experience domestic violence during pregnancy.” IOM Study, 103. The study implies that unin‐ tended pregnancies cause these conditions, but there could just as well be another cause that causes not only these con‐ ditions, but the unintended pregnancy as well: poverty, lack of education, abuse, or other causes of risk taking behaviors.

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The HHS accommodation addresses none of these alterna‐ tive causes, focusing solely on unintended pregnancies. Most notably, the study does not acknowledge the fact that preg‐ nancies resulting from failed contraceptives are also consid‐ ered unintended.
Most damaging to the government’s asserted interest in the contraceptive mandate is the fact that those women most at risk for an unintended pregnancy are “women who are aged 18 to 24 years and unmarried, who have a low income, who are not high school graduates, and who are members of a racial or ethnic minority group.” IOM Study, 102 (citation omitted). These women—let alone the nonprofits’ employ‐ ees—are less likely to be served by the HHS accommodation, or the ACA’s contraception mandate generally, because they are less likely to have the type of employment that qualifies them for the health insurance under the ACA. These women would not obtain contraceptive services through the HHS accommodation, but through a number of government pro‐ grams such as Medicaid, 42 U.S.C. § 1396 et seq. (2010), and the Title X Family Planning Program, 42 U.S.C. § 300 (2006). “The consequence is that [the HHS accommodation] is wild‐ ly underinclusive when judged against its asserted justifica‐ tion, which … is alone enough to defeat it.” Brown, 131 S. Ct. at 2740.
C. Forcing nonprofits to use the accommodation can on‐ ly provide a marginal increase in contraception.
Contraceptive services are already widely available and their use is virtually universal. The HHS accommodation on‐ ly fills the “remaining modest gap” by making already prev‐

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alent contraceptive services free for employees of religious nonprofits. Id. at 2741. This “can hardly be a compelling state interest.” Id. Further, the “more focused inquiry” of RFRA requires the government to demonstrate that it has a compel‐ ling interest in filling the gap made by the less than 2,000 employees of the nonprofits here. Hobby Lobby, 131 S. Ct. at 2779. This is even less of a compelling interest. Further still, the accommodation fills in even less of the gap when viewed from the perspective of unintended pregnancies. This is be‐ cause the accommodation seeks to treat unintended preg‐ nancies through contraceptive services, but contraceptives are not always effective for a variety of reasons. Even if this gap could be decreased by improving the effectiveness of contraceptives, “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.
D. A primary concern underlying the accommodation is cost.
Cost appears to be a primary concern underlying the HHS accommodation. After all, babies are expensive. Of the IOM Study’s eight‐page discussion of contraceptives, a sig‐ nificant portion is spent on the cost savings to be expected from their use despite the study’s acknowledgement that cost considerations are out of scope:
Although it is beyond the scope of the committee’s consideration, it should be noted that contraception is highly cost‐ effective. The direct medical cost of unin‐ tended pregnancy in the United States was

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estimated to be nearly $5 billion in 2002, with the cost savings due to contraceptive use esti‐ mated to be $19.3 billion. … It is thought that greater use of long‐acting, reversible contra‐ ceptive methods—including intrauterine de‐ vices and contraceptive implants that require less action by the woman and therefore have lower use failure rates—might help further re‐ duce unintended pregnancy rates. Cost barri‐ ers to use of the most effective contraceptive methods are important because long‐acting, reversible contraceptive methods and steriliza‐ tion have high up‐front costs.
IOM Study, 107–08 (citations omitted). The study’s primary conclusion is that the use of contraceptive services— particularly longer‐acting methods like IUDs—will greatly increase if they are free, “especially among poor and low‐income women.” Id. at 109 (emphasis added). The appearance is that the government desires to use contraceptives that “require less action by the woman” to prevent poor, unmarried, mi‐ nority women from having babies, as if babies were a costly disease. IOM Study, 108. Of course, this appearance is less‐ ened by the fact that the government is vigorously enforcing the HHS contraception mandate on even religious nonprofits through the accommodation.
Because the government has failed to prove that the HHS accommodation furthers a compelling governmental inter‐ est, it is not allowed to burden the nonprofits’ religious exer‐ cise with the accommodation. 42 U.S.C. § 2000bb‐1. Thus, the

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government must grant the nonprofits the same exemption that it grants to religious employers. 45 C.F.R. § 147.131(a).
IV. The accommodation is not the least restrictive means.
Even if the government had proved that the HHS ac‐ commodation was in furtherance of a compelling interest, it would still have to grant the nonprofits’ an exemption from the accommodation because the accommodation is not the least restrictive means. 42 U.S.C. § 2000bb‐1(b)(2). The Su‐ preme Court in Hobby Lobby spoke of an obvious means that would be less restrictive than the HHS accommodation:
The most straightforward way of doing this would be for the Government to assume the cost of providing the [objectionable] contracep‐ tives at issue to any women who are unable to obtain them under their health‐insurance poli‐ cies due to their employers’ religious objec‐ tions. This would certainly be less restrictive of the plaintiffs’ religious liberty, and HHS has not shown … that this is not a viable alterna‐ tive.
131 S. Ct. at 2780. The government argues that RFRA does not require the government to create entirely new programs to accommodate religious objections, but the government provides no authority for its position. The Court did not hold that it was so in Hobby Lobby. Id. at 2786. Rather, the Court stated that Congress understood that by passing RFRA it might cost the government extra to avoid burdening religion. Id. at 2781. Besides, the government already main‐ tains programs, such as Medicaid and the Title X Family

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Planning Program mentioned earlier, which could be opened up to the employees of the nonprofits.
The government also argues that a government‐run pro‐ gram is not a valid means because it would create additional burdens for the nonprofits’ employees and RFRA does not protect religious exercise that “unduly restrict[s] other per‐ sons, such as employees, in protecting their own interests, interests the law deems compelling.” Id. at 2786–87 (Kenne‐ dy, J., concurring). This requirement is not found in RFRA. What the government fails to acknowledge is that the pur‐ pose of an inquiry into the burdens on others is to determine whether a particular religious accommodation violates the Establishment Clause. See Cutter v. Wilkinson, 544 U.S. 709, 719–20 (2005) (Ginsburg, J.). To determine whether a reli‐ gious accommodation under RFRA is compatible with the Establishment Clause “courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries, and they must be satisfied that the Act’s prescriptions are and will be administered neutrally among different faiths.” Id. at 712 (citation omitted). A religious ac‐ commodation’s effect on third parties must be examined be‐ cause “[a]t some point, accommodation may devolve into ‘an unlawful fostering of religion.’” Id. at 714 (quoting Corpo‐ ration of Presiding Bishop of Church of Jesus Christ of Latter‐day Saints v. Amos, 483 U.S. 327, 334‐335 (1987)). The Supreme Court “has long recognized that the government may … ac‐ commodate religious practices … without violating the Es‐ tablishment Clause.” Id. at 713 (quoting Hobbie v. Unemploy‐ ment Appeals Comm’n of Fla., 480 U.S. 136, 144‐145 (1987)).

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Administering a government‐run program for contracep‐ tive coverage in order to relieve the nonprofits of the burden on their religion imposed by the accommodation would not “devolve into ‘an unlawful fostering of religion.’” Id. at 714. A government‐run program would provide the contracep‐ tion coverage on a cost‐free basis. Any burden resulting from an employee’s participation in the program would be de min‐ imis because it truly would be nothing more than additional paperwork (unlike the self‐certification and alternative no‐ tice). Furthermore, such a small burden would be no differ‐ ent than the burden experienced by the many who obtain dental and vision care benefits from different plans and fill their prescriptions at pharmacies unassociated with their health care providers. It would be absurd to say that such a de minimis burden even came close to the establishment of religion. Finally, any burden would be within the employee’s power to avoid by changing employment to an employer that provides the coverage. According to the government, when the contraceptive services mandate was enacted, 85% percent of large employers and 62% percent of small em‐ ployers already covered contraceptives services under the health plans. Even more plans will cover contraceptives and that coverage will be copayment‐free now that the mandate is in force.
V. Conclusion
This dissent explores the road less traveled by. As de‐ tailed above, the detour exposes two serious misrepresenta‐ tions. First, the so‐called accommodation is nothing but a mirage. The government strung together the complicated

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details to create a lengthy and twisted extension cord. The end result is the de facto imposition of a provision offering “free” birth control into the nonprofits’ necessary health plans. The unwanted provision is very offensive and contra‐ ry to the nonprofits’ sincerely held religious beliefs. The im‐ position does not occur if the nonprofits refuse to plug in the extension cord by refusing to self‐certify or otherwise indi‐ cate consent through the alternative notice. But this refusal causes enormous, existential monetary penalties. So, there are substantial burdens at both ends of the accommodation.
Second, deep into the detour is the falsehood behind the government’s claim that increasing the availability of contra‐ ceptive services furthers a “compelling governmental inter‐ est.” That label is needed to overcome the nonprofits’ sin‐ cerely held religious beliefs that no one disputes. But, con‐ traceptive services are already widely available from the great majority of employers. And, for the primarily targeted poor and/or unemployed women, whom the mandate does not affect, there are already programs like Medicaid and Ti‐ tle X that offer free contraceptive services. At its center, the IOM Study recognizes that babies are medically very expen‐ sive, so the government endeavors to reduce “unexpected” pregnancies to save money. In effect, the government con‐ siders pregnancy a preventable disease.
Aside from the fact that the government desires to sub‐ stantially burden the nonprofits’ religious exercise in fur‐ therance of an exaggerated, misnamed, and misdirected in‐ terest, there are, no doubt, less restrictive means of further‐ ing its interest. But why even go there? The government cer‐

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tainly has no compelling interest in forcing contraceptive coverage into the nonprofits’ otherwise wanted and needed health plans when they unanimously assert they don’t want the coverage and don’t need it. The obvious solution for these plaintiffs (and likely for the plaintiffs involved in the similar—and similarly expensive—litigation in at least six other federal circuits, see supra p.4) is for the government to extend the religious employer exemption to all religious nonprofits that object to the coverage. 45 C.F.R. § 147.131(a).
The nonprofits have shown a likelihood of success on their claims that the HHS accommodation violates RFRA. 42 U.S.C. § 2000bb‐1. The preliminary injunction granted by the district court should be affirmed. Korte, 735 F.3d at 666 (“Alt‐ hough the claim is statutory, RFRA protects First Amend‐ ment free‐exercise rights, and in First Amendment cases, the likelihood of success on the merits will often be the determi‐ native factor.” (internal quotation marks omitted)).
For all these reasons, I dissent.

 
 UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett McKinley Dirksen United States Courthouse Room 2722 - 219 S. Dearborn Street Chicago, Illinois 60604

Office of the Clerk Phone: (312) 435-5850 www.ca7.uscourts.gov

September 4, 2015

FINAL JUDGMENT

Before:

DANIEL A. MANION, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge DAVID F. HAMILTON, Circuit Judge

Nos. 14-1430 & 14-1431

GRACE SCHOOLS et al., and DIOCESE OF FORT WAYNE-SOUTH BEND, INC., et al., Plaintiffs - Appellees
v.

SYLVIA MATHEWS BURWELL, et al., Defendants - Appellants
Originating Case Information:
District Court Nos: 3:12-cv-00459-JD-CAN and 1:12-cv-00159-JD-RBC Northern District of Indiana District Judge Jon E. DeGuilio

The judgment of the District Court is REVERSED, with costs, and the case is REMANDED in accordance with the decision of this court entered on this date.

form name: c7_FinalJudgment(form ID: 132)

 
 United States Court of Appeals
For the Seventh Circuit Chicago, Illinois 60604
November 5, 2015 Before
DANIEL A. MANION, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge

Nos. 14-1430 & 14-1431

GRACE SCHOOLS, et al., and DIOCESE OF FORT WAYNE-SOUTH BEND, INC., et al.,
Plaintiffs–Appellees,
v.
SYLVIA MATHEWS BURWELL, et al., Defendants–Appellants.

Appeal from the United States District Court for the Northern District of Indiana.
Nos. 3:12-cv-00459-JD-CAN and 1:12-cv-00159-JD-RBC
Jon E. DeGuilio, Judge.

O R D E R

No judge of the court having called for a vote on the Petition For Rehearing En Banc filed by Plaintiffs-Appellees on October 19, 2015, and a majority of the judges on the original panel having voted to deny the same,

IT IS HEREBY ORDERED that the Petition For Rehearing En Banc is DENIED.

 
 UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett McKinley Dirksen United States Courthouse Room2722 - 219 S. Dearborn Street Chicago, Illinois 60604

Office of the Clerk Phone: (312) 435-5850 www.ca7.uscourts.gov

November 12, 2015

ORDER

Before ILANA DIAMOND ROVNER, Circuit Judge

No. 14-1430 and 14-1431

GRACE SCHOOLS, et al., and DIOCESE OF FORT WAYNE-SOUTH BEND,et al., Plaintiffs - Appellees
v.

KATHLEEN SEBLIUS, et al., Defendants - Appellants
Originating Case Information:
District Court Nos: 3:12-cv-00459-JD-CAN, 1:12-cv-00159-JD-RBC Northern District of Indiana, South Bend Division District Judge Jon E. DeGuilio

Upon consideration of the PLAINTIFFS0-APPELLEES’ MOTION FOR STAY OF MANDATE PENDING PETITION FOR WRIT OF CERTIORARI, filed on November 11, 2015, by counsel for the appellees,
IT IS ORDERED that the motion is GRANTED. The mandate of this court is STAYED until the expiration of the time allowed for filing a petition for writ of certiorari. If a timely petition is filed and appellees notify this court in writing, this stay shall remain in force until the conclusion of all proceedings before the Supreme Court of the United States See Fed. R. App. P. 41(d)(2).

form name : c7_Order_3J(form ID: 177)

 
 USDC IN/ND case 3:12-cv-00459-JD-MGG document 114 filed 06/01/18 page 1 of 6

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION

GRACE SCHOOLS and BIOLA UNIVERSITY, INC.,
Plaintiffs, v. ALEX M. AZAR II, et al.,
Defendants.

)

)

)

)

)

Case No. 3:12-CV-459 JD

)

)

)

)

)

ORDER OF PERMANENT INJUNCTION AND DECLARATORY RELIEF Before the Court is the Motion for Permanent Injunction and Declaratory Relief by Plaintiffs Grace Schools and Biola University, Inc. (“Plaintiffs”) [DE 110]. In response [DE 113], Defendants represent that they are no longer raising a substantive defense to Plaintiffs’ Religious Freedom Restoration Act (“RFRA”) claims regarding compliance with the contraceptive mandate emanating from the Patient Protection and Affordable Care Act of 2010 (the “Affordable Care Act”), 124 Stat. 119 (Mar. 23, 2010).1 By way of background, this case has been pending for almost six years. When the amended complaint was filed in September 2013 [DE 54], the government had established an “accommodation” for certain religious employers that provided for alternate means of ensuring employee access to the contraceptive services specified by the mandate without payment or direct

1 The mandate is embodied in federal regulations implementing a requirement of the Affordable Care Act that non-exempt and non-grandfathered group health plans provide specified preventative-health services to plan participants without cost-sharing; among those services are contraceptives approved by the Food and Drug Administration. See 42 U.S.C. § 300gg-13(a)(4); 45 C.F.R. § 147.130(a)(1)(iv); 29 C.F.R. § 2590.715-2713(a)(1)(iv); 26 C.F.R. § 54.98152713(a)(1)(iv).
1

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involvement by an objecting employer. 76 Fed. Reg. 46,621, at 46,623 (Aug. 3, 2011); 77 Fed. Reg. 8725 (Feb. 15, 2012); see also 78 Fed. Reg. 39,870, at 39,873–882 (July 2, 2013) (simplifying and clarifying criteria identifying employers eligible for exemption); 45 C.F.R. § 147.131(a) & (b)(2)(i). Plaintiffs contested the adequacy of the accommodation, which imposes certain procedural requirements on an objecting employer, to protect its religious interests.
The undersigned preliminarily enjoined application of the contraceptive mandate to the Plaintiffs’ employee and student health plans, concluding that such application likely violated the RFRA [DE 90]. On appeal, the Seventh Circuit rejected the challenges brought by Plaintiffs and other not-for-profit employers in multiple decisions. See Univ. of Notre Dame v. Burwell, 786 F.3d 606 (7th Cir. 2015), cert. granted, j. vacated, & remanded, ––– U.S. ––––, 136 S. Ct. 2007, 195 L.Ed.2d 210 (2016); Wheaton Coll. v. Burwell, 791 F.3d 792 (7th Cir. 2015); Grace Schools v. Burwell, 801 F.3d 788 (7th Cir. 2015), cert. granted, j. vacated, & remanded, ––– U.S. ––––, 136 S. Ct. 2010, 2011, 195 L.Ed.2d 211 (2016).
Thereafter, in Zubik v. Burwell, ––– U.S. ––––, 136 S. Ct. 1557, 194 L.Ed.2d 696 (2016) (per curiam), the Court declined to reach the merits of the issues presented and remanded the cases, including this one. See Grace Sch. v. Burwell, 136 S. Ct. 2011, 195 L. Ed. 2d 211 (2016). The Supreme Court opted to afford the parties an opportunity to see if the accommodation could be modified in such a way as to address the religious concerns of the objecting employers while continuing to meet the government’s interest in making contraceptive services available to employees.2
2 Since then, new interim final rules were issued that modify some of the regulations at issue in this litigation. See 82 Fed. Reg. 47,792 (Oct. 13, 2017); 82 Fed. Reg. 47,838 (Oct. 13, 2017). However, district courts have entered preliminary injunctions barring application of the new interim final rules on grounds that they likely violated the Administrative Procedure Act. See,
2

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After reconsideration of their position, Defendants now agree that enforcement of the rules regarding the contraceptive mandate against employers with sincerely held religious objections would violate the RFRA; and thus, Defendants do not oppose Plaintiffs’ renewed motion for injunctive and declaratory relief. Defendants have simply requested certain limitations [DE 113 at 2] on the scope of the relief requested by Plaintiffs, to which Plaintiffs have not posed any objection.
Accordingly, after considering the parties’ briefs submitted on the motion [DE 110; DE 113], and given Defendants’ concessions on the merits of Plaintiffs’ RFRA claims, the Court agrees that Plaintiffs are entitled to a permanent injunction and declaratory relief, similar to the relief provided in substantively identical cases. See Sharpe Holdings, Inc. v. U.S. Dep’t of Health & Human Servs., No. 2:12-cv-00092-DDN, DE 160 (E.D. Mo. Mar. 28, 2018); Reaching Souls Int’l v. Azar, No. CIV-13-1092-D, DE 95 (W.D. Okla. Mar. 15, 2018); Catholic Benefits Ass’n v. Hargan, Nos. Civ-14-240-R and Civ-14-684-R, DE 184 (W.D. Okla. Mar. 7, 2018); Wheaton Coll. v. Azar, No. 1:13-cv-8910, DE 119 (N.D. Ill. Feb. 22, 2018).
In deciding whether to grant injunctive relief, a court must consider four traditional criteria: (1) whether the plaintiff has a reasonable likelihood of success on the merits; (2) whether the plaintiff will have an adequate remedy at law or will be irreparably harmed if the injunction does not issue; (3) whether the threatened injury to the plaintiff outweighs the threatened harm the injunction may inflict on the defendant; and (4) whether the granting of the injunction will harm the public interest. Plummer v. Am. Inst. of Certified Pub. Accountants, 97 F.3d 220, 229 (7th Cir. 1996) (citing N.L.R.B. v. Electro–Voice, Inc., 83 F.3d 1559, 1567 (7th Cir. 1996); Faheem–El v.
e.g., California v. Health & Human Servs., 281 F. Supp. 3d 806 (N.D. Cal. 2017); Pennsylvania v. Trump, 281 F. Supp. 3d 553 (E.D. Pa. 2017).
3

USDC IN/ND case 3:12-cv-00459-JD-MGG document 114 filed 06/01/18 page 4 of 6
Klincar, 841 F.2d 712, 716 (7th Cir. 1988)). A permanent injunction (as opposed to a preliminary injunction or a temporary restraining order) is not provisional in nature, but rather is a final judgment. Id. (citing Walgreen Co. v. Sara Creek Property Co., 966 F.2d 273, 275 (7th Cir. 1992)). Thus, when the plaintiff is seeking a permanent injunction, the first of the four traditional factors is slightly modified, for the issue is not whether the plaintiff has demonstrated a reasonable likelihood of success on the merits, but whether he has in fact succeeded on the merits. Id. (citation omitted). Moreover, sections 2201 and 2202 of Title 28 provide authorization for federal courts to grant declaratory relief, and declare the rights and other legal relations of any interested party seeking the declaration. 28 U.S.C. §§ 2201, 2202. Any such declaration has the force and effect of a final judgment or decree. 28 U.S.C. § 2201.
First, Plaintiffs have demonstrated, and Defendants now concede, that requiring Plaintiffs to comply with 42 U.S.C. § 300gg-13(a)(4), to the extent such compliance contradicts Plaintiffs’ religious beliefs, violates their rights protected by the RFRA, 42 U.S.C. § 2000bb et seq.
Second, Plaintiffs will suffer irreparable harm unless Defendants are enjoined from violating these rights. That is, Plaintiffs can either follow their religious beliefs and incur unsustainable financial penalties,3 or violate their religious beliefs by providing access to objectionable contraceptive services.
Third, as explained in the Court’s order granting a preliminary injunction [DE 90 at 32-33], the harm Plaintiffs will suffer in the absence of a permanent injunction and
3 Plaintiffs indicated that by failing to comply with the mandate, they would incur fines of $100 per affected beneficiary per day. 26 U.S.C. § 4980D(b)(1). If they dropped their employee health plan to avoid violating their religious beliefs, they would incur fines of $2,000 per employee per year. 26 U.S.C. § 4980H(c)(1) [DE 110 at 3, n. 4].
4

USDC IN/ND case 3:12-cv-00459-JD-MGG document 114 filed 06/01/18 page 5 of 6
declaratory judgment outweighs any injury to Defendants resulting from this injunction. This is demonstrated at the very least by the issuance of the interim final rules wherein it was concluded that requiring adherence to the mandate through the accommodation led to the violation of the RFRA in many instances. See 82 Fed. Reg. 47,806 (Oct. 13, 2017). More specifically, the Defendants acknowledge that requiring compliance by employers, including Plaintiffs, with sincerely held religious objections to the mandate and accommodation, would violate the RFRA [DE 113 at 1]. This likely explains why the Defendants do not identify any harm that they might suffer from the issuance of an injunction and declaratory relief.
Fourth, the public interest in the vindication of religious freedom favors the entry of an injunction and declaratory judgment. Plaintiffs’ religious views and community standards about the need to refrain from the procurement, participation in, facilitation of, or payment for objectionable contraceptive services were known to Plaintiffs’ employees/students. Moreover, the public is best served if the Plaintiffs can continue to provide needed (and expected) educational services, and the needed (and expected) insurance coverage to its employees and students, without the threat of substantial fines for noncompliance with the contraceptive mandate and its accommodation.
It is therefore ORDERED that this Court’s previous preliminary injunction, DE 90, is hereby replaced in its entirety by the following:
It is ORDERED that Defendants, their agents, officers, and employees, and all others in active concert or participation with them, including their successors in office, are hereby PERMANENTLY ENJOINED AND RESTRAINED:
5

USDC IN/ND case 3:12-cv-00459-JD-MGG document 114 filed 06/01/18 page 6 of 6
1. From any effort to apply or enforce the requirements of 42 U.S.C. § 300gg13(a)(4) and any implementing regulations as those requirements relate to the provision of drugs, devices, procedures, patient counseling and education, and any other services that violate Plaintiffs’ religious consciences; and
2. From pursuing, charging, or assessing penalties, fines, assessments, or any other enforcement actions for past, present, or future noncompliance with those requirements thereto (as specified in number 1 above), including those found in 26 U.S.C. § 4980D and 29 U.S.C. § 1132, for failing to offer, provide, or otherwise facilitate access to drugs, devices, procedures, patient counseling and education, and any other services that violate Plaintiffs’ religious consciences, against Plaintiffs or their insurers and third-party administrators, as their conduct relates to Plaintiffs’ health plans.
It is further DECLARED that the requirements of 42 U.S.C. § 300gg-13(a)(4), as those requirements relate to the provision of drugs, devices, procedures, patient counseling and education, and any other services that violate Plaintiffs’ religious consciences, violate Plaintiffs’ rights protected by the RFRA, 42 U.S.C. § 2000bb et seq.
It is further ORDERED that any petition by Plaintiffs for attorneys’ fees and costs shall be submitted no later than 45 days from the entry of judgment in this case.
It is further ORDERED that this Court shall retain jurisdiction to enforce this order. SO ORDERED. ENTERED: June 1, 2018
/s/ JON E. DEGUILIO Judge United States District Court
6

 
 136 S.Ct. 2011 (2016)
GRACE SCHOOLS, et al., petitioners, v.
Sylvia BURWELL, Secretary of Health and Human Services, et al.
No. 15-1004.
Supreme Court of United States.
May 16, 2016.
On petition for writ of certiorari to the United States Court of Appeals for the Seventh Circuit. Petition for writ of certiorari granted. Judgment vacated, and case remanded to the United States Court of Appeals for the Seventh Circuit in light of Zubik v. Burwell, 578 U.S. ___ (2016). Nothing in the Zubik opinion, or in the opinions or orders of the courts below, is to affect the ability of the Government to ensure that women covered by petitioners' health plans `obtain, without cost, the full range of FDA approved contraceptives.' Wheaton College v. Burwell, 573 U.S. ___ ___ (2014) (slip op., at 1). Through this litigation, petitioners have made the Government aware of their view that they meet `the requirements for exemption from the contraceptive coverage requirement on religious grounds.' Id., at ___ (slip op., at 2). Nothing in the Zubik opinion, or in the opinions or orders of the courts below, `precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage' going forward. Ibid. Because the Government may rely on this notice, the Government may not impose taxes or penalties on petitioners for failure to provide the relevant notice.
Justice SOTOMAYOR, with whom Justice GINSBURG joins, concurs in the decision to grant, vacate, and remand in this case for the reasons expressed in Zubik v. Burwell, 578 U.S. ___ (2016) (Sotomayor, J., concurring).

 
 USDC IN/ND Case: 3:12-cv-459 As of: 11/11/2019 09:16 PM EST 1 of 13 CASREF,CSSTAY,TERMED
U.S. District Court Northern District of Indiana [LIVE] USDC Northern Indiana (South Bend)
CIVIL DOCKET FOR CASE #: 3:12−cv−00459−JD−MGG

Grace Schools et al v. Sebelius et al Assigned to: Judge Jon E DeGuilio Referred to: Magistrate Judge Michael G Gotsch, Sr Case in other court: USCA, 14−01430 Cause: 42:2000a Access to Public Accommodations
Plaintiff

Date Filed: 08/23/2012 Date Terminated: 06/01/2018 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Grace Schools

represented by David A Cortman Alliance Defending Freedom − Law/GA 1000 Hurricane Shoals Rd NE Ste D−1100 Lawrenceville, GA 30043 770−339−0774 Fax: 770−339−6744 Email: dcortman@ADFlegal.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gregory S Baylor PHV Alliance Defending Freedom − Wash/DC 440 First St NW Ste 600 Washington, DC 20001 202−393−8690 Fax: 202−347−3622 Email: gbaylor@ADFlegal.org PRO HAC VICE ATTORNEY TO BE NOTICED

Jane Dall Wilson Faegre Baker Daniels LLP − Ind/IN/300/2500 300 N Meridian St Ste 2500 Indianapolis, IN 46204−1782 317−237−0300 Fax: 317−237−1000 Email: jane.wilson@faegrebd.com ATTORNEY TO BE NOTICED

Jerry D Mackey PHV Biola University Inc 13800 Biola Ave La Mirada, CA 90639 562−903−4777 Fax: 562−903−4748 Email: university.legalcounsel@biola.edu PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew S Bowman PHV Alliance Defending Freedom − Wash/DC 440 First St NW Ste 600 Washington, DC 20001 202−393−8690 Fax: 202−347−3622 Email: matthewsbowman@gmail.com TERMINATED: 01/29/2018 PRO HAC VICE

Plaintiff

USDC IN/ND Case: 3:12-cv-459 Biola University Inc

As of: 11/11/2019 09:16 PM EST 2 of 13 represented by David A Cortman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gregory S Baylor PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jane Dall Wilson (See above for address) ATTORNEY TO BE NOTICED

Jerry D Mackey PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew S Bowman PHV (See above for address) TERMINATED: 01/29/2018 PRO HAC VICE

V. Defendant Kathleen Sebelius in her official capacity as Secretary of the US Department of Health and Human Services
Defendant Hilda Solis in her official capacity as Secretary of the US Department of Labor TERMINATED: 09/06/2013

represented by Benjamin L Berwick − AUSA US Department of Justice − Was/DC/20 Civil Division Federal Programs Branch 20 Massachusetts Ave NW Washington, DC 20530 202−305−8573 Fax: 202−616−8470 Email: Benjamin.L.Berwick@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily S Newton − AUSA US Department of Justice − Was/DC/20 Civil Division Federal Programs Branch 20 Massachusetts Ave NW Washington, DC 20530 202−305−8356 Fax: 202−616−8470 Email: emily.s.newton@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael C Pollack US Department of Justice − Was/DC/6143 20 Massachusetts Ave NW Rm 6143 Washington, DC 20530 202−305−8550 Fax: 202−616−8470 Email: michael.c.pollack@usdoj.gov TERMINATED: 05/22/2014
represented by Benjamin L Berwick − AUSA (See above for address) TERMINATED: 09/06/2013 LEAD ATTORNEY

USDC IN/ND Case: 3:12-cv-459 As of: 11/11/2019 09:16 PM EST 3 of 13 ATTORNEY TO BE NOTICED

Emily S Newton − AUSA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael C Pollack (See above for address) TERMINATED: 05/22/2014

Defendant
Timothy Geithner in his official capacity as Secretary of the US Department of Treasury TERMINATED: 09/06/2013

represented by Benjamin L Berwick − AUSA (See above for address) TERMINATED: 09/06/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Emily S Newton − AUSA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael C Pollack (See above for address) TERMINATED: 05/22/2014

Defendant
United States Department of Health and Human Services

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

Emily S Newton − AUSA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael C Pollack (See above for address) TERMINATED: 05/22/2014

Defendant United States Department of Labor

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

Emily S Newton − AUSA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael C Pollack (See above for address) TERMINATED: 05/22/2014

Defendant
United States Department of the Treasury

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

USDC IN/ND Case: 3:12-cv-459 As of: 11/11/2019 09:16 PM EST 4 of 13
Emily S Newton − AUSA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael C Pollack (See above for address) TERMINATED: 05/22/2014

Defendant
Thomas E Perez in his official capacity as Secretary of the United States Department of Labor

represented by Emily S Newton − AUSA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael C Pollack (See above for address) TERMINATED: 05/22/2014

Defendant
Jacob J Lew in his official capacity as Secretary of the United States Department of the Treasury

represented by Emily S Newton − AUSA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael C Pollack (See above for address) TERMINATED: 05/22/2014

Amicus
American Center for Law and Justice 5068 Plymouth Road Ann Arbor, MI 48105 734−662−2984

represented by Edward L White American Center for Law & Justice − AA/MI 3001 Plymouth Rd Ste 203 Ann Arbor, MI 48105 734−680−8007 Fax: 734−680−8006 Email: ewhite@aclj.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Regent University 1000 Regent University Dr. Virginia Beach, VA 23464

represented by Edward L White (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
American Civil Liberties Union American Civil Liberties Union Foundation 125 Broad Street 18th Fl. New York, NY 10004

represented by Brigitte A Amiri PHV American Civil Liberties Union − NY/NY 125 Broad St 18th Fl New York, NY 10004−2454 212−549−2633 Fax: 212−549−2650 Email: bamiri@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Daniel I Mach PHV American Civil Liberties Union − Was/DC

USDC IN/ND Case: 3:12-cv-459

As of: 11/11/2019 09:16 PM EST 5 of 13 915 15th St NW 6th Fl Washington, DC 20005 202−675−2330 Fax: 202−546−0738 Email: dmach@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer K Lee American Civil Liberties Union − NY/NY 125 Broad St 18th Floor New York, NY 10004−2454 212−549−2601 Email: jlee@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Liberty, Life, and Law Foundation

represented by Michael A Wilkins Broyles Kight & Ricafort LLP 8250 Haverstick Rd Suite 100 Indianapolis, IN 46204 317−571−3601 Fax: 317−571−3610 Email: mwilkins@bkrlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/23/2012
08/23/2012 08/23/2012
08/23/2012 09/05/2012 09/21/2012 09/21/2012 09/21/2012 09/21/2012

# Docket Text
1 COMPLAINT with Request for Permanent Injunction against Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Filing fee $ 350, receipt #3004609), filed by Biola University Inc, Grace Schools. (Attachments: # 1 Civil Cover Sheet)(mc) (Entered: 08/24/2012)
2 NOTICE of Appearance by Jane Dall Wilson on behalf of Biola University Inc, Grace Schools (mc) (Entered: 08/24/2012)
3 Summons Issued as to All Defendants, U.S. Attorney and U.S. Attorney General. NOTE: The attached document should not be used to effect service of process. Only copies that bear the seal of the court should be used for service of process. (mc) (Entered: 08/24/2012)
4 Corporate Disclosure Statement by Biola University Inc, Grace Schools: no parent corporation. (mc) (Entered: 08/24/2012)
5 NOTICE by Biola University Inc, Grace Schools of Related Action (Wilson, Jane) (Entered: 09/05/2012)
6 NOTICE of Appearance by David A Cortman on behalf of All Plaintiffs (Cortman, David) (Entered: 09/21/2012)
7 SUMMONS Returned Executed by Biola University Inc, Grace Schools. Kathleen Sebelius served on 9/11/2012, answer due 11/13/2012. (Cortman, David) (Entered: 09/21/2012)
8 SUMMONS Returned Executed by United States Department of Health and Human Services. United States Department of Health and Human Services served on 9/11/2012, answer due 11/13/2012. (Cortman, David) (Entered: 09/21/2012)
9 AFFIDAVIT of Service for Summons and Complaint served on U.S. Attorney General on 09/12/2012, filed by Biola University Inc, Grace Schools. (Cortman, David) (Entered: 09/21/2012)

09/2U1/S20D1C2 IN/1N0D ACFaFsIeD:A3V:1IT2-ocfvS-4er5v9ice fAosr Soufm: 1m1o/n1s1a/n2d01C9om0p9l:a1in6t sPeMrveEd SonTU.6S.oAft1to3rney for the Northern District of Indiana on 09/10/2012, filed by Biola University Inc, Grace Schools. (Cortman, David) (Entered: 09/21/2012)

09/27/2012

11 APPLICATION for Attorney Gregory S Baylor to Appear Pro Hac Vice on behalf of Grace Schools and Biola University Inc ; Receipt #3004866. (kds) (Entered: 09/27/2012)

10/01/2012

12 ORDER granting 11 Application to Appear Pro Hac Vice of Attorney Gregory S Baylor PHV for Biola University Inc,Gregory S Baylor PHV for Grace Schools. Signed by Magistrate Judge Christopher A Nuechterlein on 10/1/2012. (kds) (Entered: 10/01/2012)

10/01/2012

13 APPLICATION for Attorney Jerry D Mackey to Appear Pro Hac Vice on behalf of Grace Schools and Biola University Inc ; Receipt #3004891. (smp) (Entered: 10/02/2012)

10/02/2012

14 ORDER granting 13 Application to Appear Pro Hac Vice of Attorney Jerry D Mackey PHV for Biola University Inc and Grace Schools. Signed by Magistrate Judge Christopher A Nuechterlein on 10/2/2012. (kds) (Entered: 10/02/2012)

10/02/2012 15 SUMMONS Returned Executed by Biola University Inc, Grace Schools. Hilda Solis served on 9/13/2012, answer due 11/13/2012. (Cortman, David) (Entered: 10/02/2012)

10/03/2012 16 NOTICE of Appearance by Jerry D Mackey PHV on behalf of Biola University Inc (Mackey PHV, Jerry) (Entered: 10/03/2012)

10/05/2012 17 NOTICE of Appearance by Gregory S Baylor PHV on behalf of Biola University Inc, Grace Schools (Baylor PHV, Gregory) (Entered: 10/05/2012)

10/11/2012

18 APPLICATION for Attorney Matthew S Bowman to Appear Pro Hac Vice on behalf of Grace Schools and Biola University Inc ; Receipt #3005022. (kds) (Entered: 10/12/2012)

10/18/2012

19 ORDER granting 18 Application to Appear Pro Hac Vice of Attorney Matthew S Bowman PHV for Biola University Inc,Matthew S Bowman PHV for Grace Schools. Signed by Magistrate Judge Christopher A Nuechterlein on 10/18/12. (smp) (Entered: 10/18/2012)

10/18/2012

20 SUMMONS Returned Executed by Biola University Inc, Grace Schools. Timothy Geithner served on 9/12/2012, answer due 11/13/2012. (Baylor PHV, Gregory) (Entered: 10/18/2012)

10/18/2012

21 SUMMONS Returned Executed by Biola University Inc, Grace Schools. United States Department of the Treasury served on 9/12/2012, answer due 11/13/2012. (Baylor PHV, Gregory) (Entered: 10/18/2012)

10/22/2012

22 SUMMONS Returned Executed by Biola University Inc, Grace Schools. United States Department of Labor served on 10/17/2012, answer due 12/17/2012. (Baylor PHV, Gregory) (Entered: 10/22/2012)

11/09/2012 23 NOTICE of Appearance by Benjamin L Berwick on behalf of All Defendants (Berwick, Benjamin) (Entered: 11/09/2012)

11/09/2012

24 MOTION to Dismiss for Lack of Jurisdiction by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Berwick, Benjamin). (Entered: 11/09/2012)

11/09/2012

25 MEMORANDUM in Support of 24 MOTION to Dismiss for Lack of Jurisdiction filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Berwick, Benjamin) (Entered: 11/09/2012)

11/19/2012 26 MOTION for Extension of Time to File Response/Reply by Plaintiffs Biola University Inc, Grace Schools. (Baylor PHV, Gregory) (Entered: 11/19/2012)

11/26/2012

27 NOTICE by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury re 24 MOTION to Dismiss for Lack of

USDC IN/ND Case: 3:12-cv-459 As of: 11/11/2019 09:16 PM EST 7 of 13 Jurisdiction Supplemental Authority (Attachments: # 1 Exhibit Catholic Diocese of Nashville v. Sebelius)(Berwick, Benjamin) (Entered: 11/26/2012)

11/27/2012

28 ORDER GRANTING 26 Motion for Extension of Time to File Response/Reply; Response to be filed by 12/7/2012. Signed by Magistrate Judge Christopher A Nuechterlein on 11/27/2012. (lyf) (Entered: 11/28/2012)

11/29/2012

29 NOTICE by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury re 24 MOTION to Dismiss for Lack of Jurisdiction Supplemental Authority (Attachments: # 1 Exhibit Zubik v. Sebelius)(Berwick, Benjamin) (Entered: 11/29/2012)

12/07/2012

30 MOTION for Leave to File Amici Curiae Brief by Amicus Parties American Center for Law and Justice, Regent University. (Attachments: # 1 Proposed Amici Curiae Brief, # 2 Corporate Disclosure Statement)(White, Edward) (Entered: 12/07/2012)

12/07/2012 31 RESPONSE to Motion re 24 MOTION to Dismiss for Lack of Jurisdiction filed by Biola University Inc, Grace Schools. (Baylor PHV, Gregory) (Entered: 12/07/2012)

12/14/2012

32 REPLY to Response to Motion re 24 MOTION to Dismiss for Lack of Jurisdiction filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Berwick, Benjamin) (Entered: 12/14/2012)

12/19/2012

33 NOTICE by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury re 24 MOTION to Dismiss for Lack of Jurisdiction Supplemental Authority (Attachments: # 1 Exhibit Wheaton v. Sebelius)(Berwick, Benjamin) (Entered: 12/19/2012)

12/21/2012

34 NOTICE by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury re 24 MOTION to Dismiss for Lack of Jurisdiction Supplemental Authority (Attachments: # 1 Exhibit Catholic Diocese of Biloxi v. Sebelius)(Berwick, Benjamin) (Entered: 12/21/2012)

01/02/2013

35 ORDER GRANTING 30 Motion for Leave to File Amici Curiae Brief by American Center for Law and Justice; and Regent University. Movants' [30−1] amici curiae brief is deemed filed. Signed by Magistrate Judge Christopher A Nuechterlein on 1/2/2013. (lyf) (Entered: 01/02/2013)

01/02/2013 36 Amici Curiae Brief by American Center for Law and Justice; and Regent University. (lyf) (Entered: 01/02/2013)

01/03/2013 37 Corporate Disclosure Statement by American Center for Law and Justice, Regent University. (White, Edward) (Entered: 01/03/2013)

01/07/2013

38 NOTICE by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury re 24 MOTION to Dismiss for Lack of Jurisdiction Supplemental Authority (Attachments: # 1 Exhibit Univ. of Notre Dame v. Sebelius, # 2 Exhibit Catholic Diocese of Peoria v. Sebelius)(Berwick, Benjamin) (Entered: 01/07/2013)

01/10/2013

39 NOTICE by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury re 24 MOTION to Dismiss for Lack of Jurisdiction Supplemental Authority (Attachments: # 1 Exhibit Colorado Christian Univ. v. Sebelius)(Berwick, Benjamin) (Entered: 01/10/2013)

01/29/2013

40 NOTICE by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury re 24 MOTION to Dismiss for Lack of Jurisdiction Supplemental Authority (Berwick, Benjamin) (Entered: 01/29/2013)

01/31/2013 41 NOTICE of Appearance by Michael C Pollack on behalf of Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human

USDC IN/ND Case: 3:12-cv-459 As of: 11/11/2019 09:16 PM EST 8 of 13 Services, United States Department of Labor, United States Department of the Treasury (Pollack, Michael) (Entered: 01/31/2013)

01/31/2013

42 NOTICE by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury re 24 MOTION to Dismiss for Lack of Jurisdiction Supplemental Authority (Pollack, Michael) (Entered: 01/31/2013)

02/15/2013

43 NOTICE by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury re 24 MOTION to Dismiss for Lack of Jurisdiction Supplemental Authority (Attachments: # 1 Exhibit Diocese of Fort Worth v. Sebelius, # 2 Exhibit Conlon v. Sebelius)(Pollack, Michael) (Additional attachment(s) added on 2/19/2013: # 3 Exhibit 1 dbl banners redacted, # 4 Exhibit 2 redacted banners) (kds). (Entered: 02/15/2013)

03/21/2013

44 NOTICE by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury re 24 MOTION to Dismiss for Lack of Jurisdiction Supplemental Authority (Attachments: # 1 Exhibit Wenski v. Sebelius)(Pollack, Michael) (Entered: 03/21/2013)

03/28/2013

45 NOTICE by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury re 24 MOTION to Dismiss for Lack of Jurisdiction Supplemental Authority (Attachments: # 1 Exhibit EWTN v. Sebelius)(Pollack, Michael) (Entered: 03/28/2013)

04/09/2013

46 NOTICE by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury re 24 MOTION to Dismiss for Lack of Jurisdiction Supplemental Authority (Pollack, Michael) (Entered: 04/09/2013)

04/17/2013

47 NOTICE by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury re 24 MOTION to Dismiss for Lack of Jurisdiction Supplemental Authority (Attachments: # 1 Exhibit Criswell College v. Sebelius)(Pollack, Michael) (Entered: 04/17/2013)

07/11/2013

48 ORDER STAYING CASE − Plaintiffs have up to and including Friday, 7/26/2013 to file a notice with the Court stating their intentions relative to the instant lawsuit. Additionally, the Court ORDERS this case temporarily STAYED until such time as the Court has had an opportunity to consider the parties' positions and issue a subsequent order lifting the stay. Signed by Judge Jon E DeGuilio on 7/11/2013. (saj) (Entered: 07/11/2013)

07/11/2013

49 NOTICE of Change of Address by Edward L White counsel for amici curiae American Center for Law & Justice and Regent University (White, Edward) (Entered: 07/11/2013)

07/26/2013 50 NOTICE by Biola University Inc, Grace Schools (Baylor PHV, Gregory) (Entered: 07/26/2013)

07/30/2013

51 RESPONSE by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury to 50 Notice (Other), 48 Order Staying Case, Set Deadlines,, . (Pollack, Michael) (Entered: 07/30/2013)

07/31/2013

52 ORDER LIFTING STAY AND ADOPTING THE FOLLOWING PRETRIAL SCHEDULE: Plaintiffs file any Amended Complaint and any Motion for Preliminary Injunction (leave granted to file 40 page brief) by 9/6/2013; Defendants file Response to Plaintiffs Motion for Preliminary Injunction and Defendants to file any Answer or Motion to Dismiss and/or for Summary Judgment (leave granted to file 50 page brief) by 9/27/2013; Plaintiffs file Preliminary Injunction Reply, Response to Defendants Motion to Dismiss and/or for Summary Judgment, and any Cross−Motion for Summary Judgment (leave granted to file 60 page brief) by 10/11/2013; Defendants file Motion to Dismiss and/or for Summary Judgment Reply and Response to Plaintiffs

USDC IN/ND Case: 3:12-cv-459 As of: 11/11/2019 09:16 PM EST 9 of 13 Cross−Motion for Summary Judgment (leave granted to file 50 page brief) by 11/1/2013; Plaintiffs file Cross−Motion for Summary Judgment Reply (leave granted to file 25 page brief) by 11/15/2013. Given the Plaintiffs stated intention to file an Amended Complaint, the Defendants' representation that it has no objection to permitting Plaintiffs to file an Amended Complaint, and the Defendants' intention to withdraw its pending Motion to Dismiss, the Court IS DENYING WITH LEAVE TO RE−FILE the Defendants' 24 Motion to Dismiss. Should no Amended Complaint be filed as represented, then the Court will consider whether reinstatement of the motion is appropriate. Signed by Judge Jon E DeGuilio on 7/31/2013. (lyb) (Entered: 07/31/2013)

09/03/2013

53 MOTION UNOPPOSED MOTION FOR CLARIFICATION OF SCHEDULING ORDER re 52 Order Lifting Stay by Plaintiffs Biola University Inc, Grace Schools. (Baylor PHV, Gregory) Modified text on 9/9/2013 to edit title text to reflect document title (kds). (Entered: 09/03/2013)

09/06/2013 54 AMENDED COMPLAINT against All Defendants, filed by Biola University Inc, Grace Schools.(Baylor PHV, Gregory) (Entered: 09/06/2013)

09/06/2013 55 MOTION for Preliminary Injunction by Plaintiffs Biola University Inc, Grace Schools. (Baylor PHV, Gregory) (Entered: 09/06/2013)

09/06/2013 56 MEMORANDUM in Support of 55 MOTION for Preliminary Injunction filed by Biola University Inc, Grace Schools. (Baylor PHV, Gregory) (Entered: 09/06/2013)

09/13/2013

57 ORDER denying 53 motion for clarification. The Court is not in a position to confirm that it could rule on any summary judgment motion prior to January 1, 2014, but it will make every effort to rule on the requested preliminary injunction (expected to be ripe by October 11, 2013 absent extensions of time) prior to January 1, 2014. Signed by Judge Jon E DeGuilio on 9/13/2013. (saj) (Entered: 09/13/2013)

09/27/2013

58 NOTICE by Jacob J Lew, Thomas E Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury Notice of Filing of Certified Administrative Record (Attachments: # 1 Exhibit Certification of the Record, # 2 Exhibit Record Index)(Pollack, Michael) (Entered: 09/27/2013)

09/27/2013

59 RESPONSE to Motion re 55 MOTION for Preliminary Injunction filed by Jacob J Lew, Thomas E Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Pollack, Michael) (Entered: 09/27/2013)

09/27/2013

60 MOTION to Dismiss for Lack of Jurisdiction , MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , or in the alternative, MOTION for Summary Judgment by Defendants Jacob J Lew, Thomas E Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Pollack, Michael) (Entered: 09/27/2013)

09/27/2013

61 MEMORANDUM in Support of 60 MOTION to Dismiss for Lack of Jurisdiction MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , or in the alternative MOTION for Summary Judgment filed by Jacob J Lew, Thomas E Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Attachments: # 1 Statement of Material Facts)(Pollack, Michael) (Entered: 09/27/2013)

09/30/2013

62 RECEIPT of 3 CDs containing the Administrative Record from Jacob J Lew, Thomas E Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury, as noted in 58 Notice (filed on DVD due to the size of the record) (lyb) (Entered: 10/01/2013)

10/01/2013

63 MOTION for Leave to File Amicus Curiae Brief by Amicus American Civil Liberties Union. (Attachments: # 1 Exhibit Proposed Amicus Brief)(Lee, Jennifer) (Entered: 10/01/2013)

10/07/2013 64 NOTICE of Appearance by Michael A Wilkins on behalf of Liberty, Life, and Law Foundation (Wilkins, Michael) (Entered: 10/07/2013)

10/0U7S/2D01C3 IN/N65D CMaOsTeI:O3N:1f2o-rcLve-a4v5e9to FAilse oAfm: i1cu1s/1C1u/r2ia0e1B9ri0e9f :i1n6SuPpMporEt SofTPla1in0tifofsf' 1M3otion for Preliminary Injunction and in Opposition to Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment by Amicus Liberty, Life, and Law Foundation. (Wilkins, Michael) (Entered: 10/07/2013)

10/07/2013

66 BRIEF in Support of 55 MOTION for Preliminary Injunction and in Opposition to Motion to Dismiss or, in the Alternative, for Summary Judgment filed by Liberty, Life, and Law Foundation. (Wilkins, Michael) (Entered: 10/07/2013)

10/08/2013

67 APPLICATION for Attorney Daniel Mach to Appear Pro Hac Vice on behalf of Proposed Amicus Curiae American Civil Liberties Union ; Receipt #3008626. (lyb) (Entered: 10/10/2013)

10/08/2013

68 APPLICATION for Attorney Brigitte Amiri to Appear Pro Hac Vice on behalf of Proposed Amicus Curiae American Civil Liberties Union ; Receipt #3008626. (lyb) (Entered: 10/10/2013)

10/11/2013

69 Cross MOTION for Summary Judgment by Plaintiffs Biola University Inc, Grace Schools. (Attachments: # 1 Exhibit Index, # 2 Exhibit Declaration of Wanda Bollman, # 3 Exhibit Declaration of Steve Carlson, # 4 Exhibit Declaration of Tonya Lee Fawcett, # 5 Exhibit Declaration of John French, # 6 Exhibit Declaration of Lisa Harman, # 7 Exhibit Faculty Employment Application, # 8 Exhibit Staff Employment Application, # 9 Exhibit Declaration of Dee Anna Muraski, # 10 Exhibit Declaration of Arielle Peters, # 11 Exhibit Declaration of Sarah Prater, # 12 Exhibit Declaration of David Swain, # 13 Exhibit Declaration of Peter Wolff, # 14 Exhibit Declaration of Alison Arcadi, # 15 Exhibit Declaration of Ketha Boespflug, # 16 Exhibit Declaration of Cynthia Cole, # 17 Exhibit Declaration of Alanna Godoy, # 18 Exhibit Declaration of Chris Grace, # 19 Exhibit Declaration of Ronald Mooradian, # 20 Exhibit Declaration of Scott Rae, # 21 Exhibit Declaration of Wendy Walker)(Baylor PHV, Gregory) (Entered: 10/11/2013)

10/11/2013

70 MEMORANDUM in Support of 69 Cross MOTION for Summary Judgment filed by Biola University Inc, Grace Schools. (Attachments: # 1 Statement of Material Facts)(Baylor PHV, Gregory) (Entered: 10/11/2013)

10/15/2013

71 ORDER GRANTING 67 Application to Appear Pro Hac Vice of Attorney Daniel Mach PHV for American Civil Liberties Union. Signed by Magistrate Judge Christopher A Nuechterlein on 10/15/2013. (lyb) (Entered: 10/16/2013)

10/15/2013

72 ORDER GRANTING 68 Application to Appear Pro Hac Vice of Attorney Brigitte A Amiri PHV for American Civil Liberties Union. Signed by Magistrate Judge Christopher A Nuechterlein on 10/15/2013. (lyb) (Entered: 10/16/2013)

10/24/2013

73 ORDER GRANTING 63 Motion for Leave to File Amicus Curiae Brief by Amicus American Civil Liberties Union; DEEMING FILED the proposed Amicus Brief originally filed as an Exhibit to 63 Motion. Signed by Magistrate Judge Christopher A Nuechterlein on 10/24/2013. (lyb) (Entered: 10/25/2013)

10/24/2013 74 AMICUS CURIAE BRIEF by Amicus American Civil Liberties Union. *** FILED PER 73 Order on Motion for Leave to File (lyb) (Entered: 10/25/2013)

10/28/2013

75 ORDER GRANTING 65 Motion for Leave to participate as amicus curiae and to file its amicus curiae brief. Signed by Magistrate Judge Christopher A Nuechterlein on 10/28/2013. (lyb) (Entered: 10/28/2013)

11/01/2013

76 REPLY to Response to Motion re 60 MOTION to Dismiss for Lack of Jurisdiction MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , or in the alternative MOTION for Summary Judgment filed by Jacob J Lew, Thomas E Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Pollack, Michael) (Entered: 11/01/2013)

11/01/2013

77 RESPONSE to Motion re 69 Cross MOTION for Summary Judgment filed by Jacob J Lew, Thomas E Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Attachments: # 1 Response to Plaintiffs' Statement of Material Facts)(Pollack, Michael) (Entered: 11/01/2013)

11/1U5S/2D01C3 IN/N78D CRaEsPeL:Y3t:o12R-ecsvpo-4ns5e9to MAsotoiofn: 1re16/191C/2ro0s1s 9M0O9T:I1O6NPfoMr SEuSmTmar1y1Juodfg1m3ent filed by Biola University Inc, Grace Schools. (Baylor PHV, Gregory) (Entered: 11/15/2013)

11/18/2013

79 Consent MOTION for Leave to File Sur−Reply by Defendants Jacob J Lew, Thomas E Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Pollack, Michael) (Entered: 11/18/2013)

11/19/2013

80 ORDER granting 79 Motion for Leave to File Sur−Reply. Sur−Reply to be filed by 11/25/2013. Signed by Magistrate Judge Christopher A Nuechterlein on 11/19/13. (cck) (Entered: 11/19/2013)

11/25/2013

81 DEFENDANTS SUR−REPLY IN OPPOSITION TO PLAINTIFFS 69 Cross MOTION for Summary Judgment AND IN SUPPORT OF DEFENDANTS 60 MOTION to Dismiss or in the alternative for Summary Judgment filed by Jacob J Lew, Thomas E Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Pollack, Michael) Modified text to match document's caption on 11/27/2013 (mc). (Entered: 11/25/2013)

12/12/2013

82 NOTICE by Biola University Inc, Grace Schools of Supplemental Authority (Attachments: # 1 Exhibit Zubik v. Sebelius Opinion)(Baylor PHV, Gregory) (Entered: 12/12/2013)

12/13/2013

83 RESPONSE by Jacob J Lew, Thomas E Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury to 82 Notice (Other) Defendants' Response to Plaintiffs' Notice of Supplemental Authority. (Pollack, Michael) (Entered: 12/13/2013)

12/20/2013

84 NOTICE by Biola University Inc, Grace Schools of Supplemental Authority (Attachments: # 1 Roman Catholic Archdiocese of NY v. Sebelius Opinion)(Baylor PHV, Gregory) (Entered: 12/20/2013)

12/20/2013

85 RESPONSE by Jacob J Lew, Thomas E Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury to 84 Notice (Other) , And Additional Notice of Supplemental Authority. (Attachments: # 1 Exhibit Priests for Life v. HHS)(Pollack, Michael) (Entered: 12/20/2013)

12/23/2013

86 NOTICE by Jacob J Lew, Thomas E Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury of Supplemental Authority (Attachments: # 1 Exhibit Notre Dame v. Sebelius, # 2 Exhibit Archbishop of Washington v. Sebelius)(Pollack, Michael) (Entered: 12/23/2013)

12/23/2013

87 NOTICE by Biola University Inc, Grace Schools re 55 MOTION for Preliminary Injunction of Supplemental Authority (Attachments: # 1 Exhibit Southern Nazarene Univ. v. Sebelius Opinion and Order, # 2 Exhibit Geneva Coll. v. Sebelius Findings of Fact and Conclusions of Law)(Baylor PHV, Gregory) (Entered: 12/23/2013)

12/24/2013

88 RESPONSE by Jacob J Lew, Thomas E Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury to 87 Notice (Other), Defendants' Response to Plaintiffs' Notice of Supplemental Authority. (Pollack, Michael) (Entered: 12/24/2013)

12/26/2013

89 NOTICE by Jacob J Lew, Thomas E Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury Supplemental Authority (Attachments: # 1 Exhibit Catholic Diocese of Nashville v. Sebelius)(Pollack, Michael) (Entered: 12/26/2013)

12/27/2013

90 MEMORANDUM OPINION AND ORDER granting 55 Plaintiffs' Motion for Preliminary Injunction based upon the uncontested and verified allegations of their first amended complaint. Signed by Judge Jon E DeGuilio on 12/27/13. (smp) (Entered: 12/27/2013)

02/2U4S/2D01C4 IN/N91D CNaOsTeI:C3E:1O2F-cINv-T4E5R9LOACsUToOf:R1Y1/A11PP/2E0A1L9a0s9to:1960 POMrdeEr oSnTMo1ti2onoffo1r3Preliminary Injunction, filed by Defendants Jacob J Lew, Thomas E Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Pollack, Michael) (Entered: 02/24/2014)

02/27/2014

92 Short Record Sent to US Court of Appeals re 91 Notice of Interlocutory Appeal,. No appeal fees paid (waived). (Attachments: # 1 Notice of interlocutory appeal, # 2 Memorandum and Order, # 3 Docket sheet)(smp) (Entered: 02/27/2014)

03/03/2014

93 USCA Case Number 14−1430 for 91 Notice of Interlocutory Appeal, filed by United States Department of the Treasury, Kathleen Sebelius, United States Department of Health and Human Services, Thomas E Perez, United States Department of Labor, Jacob J Lew. (kds) (Entered: 03/05/2014)

05/21/2014

94 MOTION to Withdraw as Attorney Michael C. Pollack by Defendants Jacob J Lew, Thomas E Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Pollack, Michael) (Entered: 05/21/2014)

05/22/2014

95 ORDER granting 94 Motion to Withdraw as Attorney. Attorney Michael C Pollack terminated. Approved by Magistrate Judge Christopher A Nuechterlein on 5/22/14. (slm) (Entered: 05/22/2014)

10/29/2014 96 Letter from 7th Circuit Court of Appeals requesting record on appeal. (jld) (Entered: 11/04/2014)

11/05/2014 97 Transmitted Record on Appeal to US Court of Appeals re 91 Notice of Interlocutory Appeal, (sent on disc via UPS)(jld) (Entered: 11/05/2014)

11/06/2014

98 NOTICE of Docketing Record on Appeal from USCA re 91 Notice of Interlocutory Appeal, filed by United States Department of the Treasury, Kathleen Sebelius, United States Department of Health and Human Services, Thomas E Perez, United States Department of Labor, Jacob J Lew. (kds) (Entered: 11/10/2014)

04/13/2015 99 NOTICE of Change of Address by Gregory S Baylor PHV (Baylor PHV, Gregory) (Entered: 04/13/2015)

06/17/2016

100 The Supreme Court remanded this case to the Circuit Court for further proceedings. Circuit Rule 54 requires that counsel for the parties file statements of their positions as to the action which ought to be taken by this Court on remand. (jld) (Entered: 06/20/2016)

09/06/2016

Magistrate Judge Michael G Gotsch, Sr added. Magistrate Judge Christopher A Nuechterlein no longer assigned to case. (slm) (Entered: 09/06/2016)

10/19/2017

101 MANDATE of USCA as to Notice of Interlocutory Appeal 91 , filed by United States Department of the Treasury, Kathleen Sebelius, United States Department of Health and Human Services, Thomas E Perez, United States Department of Labor, Jacob J Lew: Ruling on the MOTION TO DISMISS APPEAL, filed on October 6, 2017, by counsel for the appellants and the RESPONSE OF APPELLEES TO MOTION TO DISMISS APPEAL, filed on October 17, 2017, by counsel for the appellees, IT IS ORDERED that these consolidated appeals are DISMISSED pursuant to Federal Rule of Appellate Procedure 42(b). (Attachments: # 1 Certified Final Order)(nae) (Entered: 10/20/2017)

10/23/2017 102 NOTICE of Appearance by Emily S Newton AUSA on behalf of All Defendants (Newton AUSA, Emily) (Entered: 10/23/2017)

01/25/2018 103 NOTICE of Deadline: Counsel to file a joint status report by 2/8/2018. This is a text−only entry. (saj) (Entered: 01/25/2018)

01/27/2018 104 MOTION to Withdraw as Attorney by Matthew S. Bowman, formerly appearing by Plaintiffs Biola University Inc, Grace Schools. (Bowman PHV, Matthew) (Entered: 01/27/2018)

01/29/2018 105 ORDER granting 104 Motion to Withdraw as Attorney. Attorney Matthew S Bowman PHV terminated. Approved by Magistrate Judge Michael G Gotsch, Sr on 1/29/18. (slm) (Entered: 01/29/2018)

02/0U8S/2D01C8 IN1/N06D CSaTsAeT:U3S:1R2E-PcOv-R4T59by UAnsiteodf:S1ta1t/e1s1D/2ep0a1rt9m0en9t:1of6HPeMalthEaSnTd Hu1m3aonfS1e3rvices, United States Department of Labor, United States Department of the Treasury. (Newton − AUSA, Emily) (Entered: 02/08/2018)

02/09/2018

107 ORDER STAYING CASE − Case stayed by agreement of the parties given their desire to further consider the appropriate resolution of the case. The parties are to file a joint status report by 4/9/2018. This is a text−only order by Judge Jon E DeGuilio on 2/9/2018. (saj) (Entered: 02/09/2018)

04/09/2018 108 STATUS REPORT by United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Newton − AUSA, Emily) (Entered: 04/09/2018)

04/12/2018

109 ORDER − Telephonic Status Conference set for 4/26/2018 11:30 AM (EST) before Judge Jon E DeGuilio. The Court will initiate the call to attorneys Baylor and Newton. This is a text−only order by Judge Jon E DeGuilio on 4/12/2018. (saj) (Entered: 04/12/2018)

04/19/2018 110 MOTION for Permanent Injunction and Declaratory Relief by Plaintiffs Biola University Inc, Grace Schools. (Baylor PHV, Gregory) (Entered: 04/19/2018)

04/23/2018

111 Joint MOTION to Vacate 109 Order, Set Hearings by Defendants United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Newton − AUSA, Emily) (Entered: 04/23/2018)

04/25/2018 112 ORDER − The 111 Joint MOTION to Vacate is GRANTED and the telephonic status conference set for 4/26/2018 is hereby VACATED. This is a text−only order by Judge Jon E DeGuilio on 4/25/2018. (saj) (Entered: 04/25/2018)

05/03/2018

113 RESPONSE to Motion re 110 MOTION for Permanent Injunction and Declaratory Relief filed by United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Newton − AUSA, Emily) (Entered: 05/03/2018)

06/01/2018 114 ORDER OF PERMANENT INUNCTION AND DECLARATORY RELIEF re 110 Motion for Permanent Injunction. Signed by Judge Jon E DeGuilio on 6/1/2018. (tc) (Entered: 06/04/2018)

06/04/2018 115 CLERK'S ENTRY OF JUDGMENT. (tc) (Entered: 06/04/2018)

07/17/2018 116 Consent MOTION for Extension of Time to File Petition for Attorneys' Fees and Costs by Plaintiffs Biola University Inc, Grace Schools. (Baylor PHV, Gregory) (Entered: 07/17/2018)

07/17/2018 117 ORDER granting 116 Consented Motion for Extension of Time to File. Plaintiff's petition for attorneys' fees and costs is now due by 8/20/2018. This is a text−only order by Judge Jon E DeGuilio on 7/17/2018. (saj) (Entered: 07/17/2018)

08/15/2018 118 Consent MOTION for Extension of Time to File Petition for Attorneys' Fees and Costs by Plaintiffs Biola University Inc, Grace Schools. (Baylor PHV, Gregory) (Entered: 08/15/2018)

08/15/2018 119 ORDER granting 118 Consented Motion for Extension of Time to File. Plaintiff's petition for attorneys' fees and costs is now due by 9/19/2018.. This is a text−only order by Judge Jon E DeGuilio on 8/15/2018. (saj) (Entered: 08/15/2018)

09/18/2018 120 Consent MOTION for Extension of Time to File Petition for Attorneys' Fees and Costs by Plaintiffs Biola University Inc, Grace Schools. (Baylor PHV, Gregory) (Entered: 09/18/2018)

09/18/2018 121 ORDER granting 120 Consented Motion for Extension of Time to File. Plaintiff's petition for attorneys' fees and costs is now due by 10/3/2018. This is a text−only order by Judge Jon E DeGuilio on 9/18/2018. (saj) (Entered: 09/18/2018)

10/03/2018 122 NOTICE of Settlement of Attorneys' Fees and Expenses by Biola University Inc, Grace Schools (Baylor PHV, Gregory) (Entered: 10/03/2018)