Case 4:12-cv-03009 Document 1 Filed in TXSD on 10/09/12 Page 1 of 35

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS

EAST TEXAS BAPTIST UNIVERSITY, and HOUSTON BAPTIST UNIVERSITY,
Plaintiffs,
v.
KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, HILDA SOLIS, Secretary of the United States Department of Labor, UNITED STATES DEPARTMENT OF LABOR, TIMOTHY GEITHNER, Secretary of the United States Department of the Treasury, and UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants.

Civil No. 12-3009 Jury Demanded

COMPLAINT Come now Plaintiffs East Texas Baptist Univ ersity and Houston Baptist University, by and through their attorneys, and state as follows:
NATURE OF THE ACTION 1. This is a challenge to regulations issued under the 2010 “A ffordable Care Act” that force thousands of religious organizations to violate their deepest religious beliefs.

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2. Plaintiffs East Texas Baptist Univers ity and Houston Baptis t University (“the Universities”) are Christian liberal arts universities. East Texas Baptist University is located in Marshall, Texas. Houston Baptist University is located in Houston, Te xas. The Universities’ religious beliefs forbid them from participating in, providing access to, paying for, trainin g others to engage in, or ot herwise supporting abortion. The Universities are am ong the m any American religious organizations that hold these beliefs.
3. With full knowledge of these beliefs, the govern ment issued an adm inistrative rule (“the Mandate”) that runs roughshod over the Universities’ religious beliefs, and the beliefs of millions of other Americans by forcing them to provide health insurance coverage for abortifacient drugs and related education and counseling.
4. The government’s Mandate uncons titutionally coerces the Universities to violate their deeply-held religious beliefs under threat of heavy fines and penalt ies. The Mandate also forces the Universities to facilitate government-dictated speech th at is incompatible with their own speech and religious teachings. Having to pay a fine to the taxing autho rities for the privilege of practicing one’s religion or controlling one’s own speech is un-Am erican, unprecedented, and flagrantly unconstitutional.
5. The government’s refusal to acco mmodate conscience is also high ly selective. The government obviously does not believe every single insurance plan in the country needs to cover these services. Rather, the governm ent has provided thousands of exem ptions from the Affordable Care Act for other groups, includi ng large corporations, often for reasons of commercial convenience. And the governm ent allows a variety of other reasons—from the age
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of the plan to the size of the em ployer—to qualify a plan for an exemption. But the government refuses to give the sam e level of accommodati on to groups exercising their fundam ental First Amendment freedoms.
6. Defendants’ actions therefore violate the Univ ersities’ rights to fr eedom of religion, as secured by the Firs t Amendment of the United States Constitution and the Religious Freedom Restoration Act (“RFRA”).
7. Defendants’ actions also viol ate the Universities’ rights to the freedo m of speech, as secured by the First Amendment of the United States Constitution.
8. Furthermore, the Mandate is also illegal because it was im posed by Defendants without prior notice or suf ficient time for public com ment, and otherwise violates the Adm inistrative Procedure Act, 5 U.S.C. § 553.
9. Had the existence of religious objections to abortifacient drugs been obscure or unknown, the government’s actions m ight have been an accident. But because the governm ent acted with full knowledge of those beliefs, and because it allows plans not to cover these services for a wide range of reasons other than religion, the Mandate can be in terpreted as nothing other than a deliberate attack by the governm ent on the relig ious beliefs of the Universities and m illions of other Americans. The Univers ities seek declaratory and in junctive relief to protect a gainst this attack.
JURISDICTION AND VENUE 10. The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and § 1361. This action arises under the Constitution and laws of th e United States. This Court has jurisdiction to
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render declaratory and inju nctive relief under 28 U.S.C. §§ 2201 and 2202, and 42 U.S.C. § 2000bb-1.
11. 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 Pl aintiff Houston Baptist University is located in this district.
IDENTIFICATION OF PARTIES 12. Plaintiff East Texas Baptist Unive rsity is a Ch ristian liberal arts univ ersity located in Marshall, Texas. Established in 1912, East Texas Baptis t University is committed to offering a complete education that develops students spiritually, intellectually, and professionally. 13. Plaintiff Houston Baptist Univ ersity is a Christian libe ral arts univ ersity located in Houston, Texas. Es tablished in 19 60, Houston Baptist University is committed to offering a complete education that develops students spiritually, intellectually, and professionally. 14. Defendants are appointed officials of the United States governm ent and United States governmental agencies responsible for issuing the Mandate. 15. Defendant Kathleen Sebelius is the Secretary of the United States Dep artment 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. 16. Defendant HHS is an executiv e agency of the United States go vernment and is responsible for the promulgation, administration and enforcement of the Mandate.
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17. Defendant Hilda Solis is the S ecretary of the United S tates Department of Labor. In this capacity, she has responsibility for the operation and m anagement of the Department of Labor. Solis is sued in her official capacity only.
18. Defendant Department of Labor is an execu tive agency of the United States governm ent and is responsible for the promulgation, administration, and enforcement of the Mandate.
19. Defendant Timothy Geithner is the Secretary of the Department of the Treasury. In this capacity, he has responsibility for the operation a nd management of the Department. Geithner is sued in his official capacity only.
20. Defendant Department of Treasu ry is an executive agency of th e United States government and is responsible for the prom ulgation, administration, and enforcem ent of the Mandate.
FACTUAL ALLEGATIONS I. The Universities’ Religious Beliefs and Practices Related to Insurance for Abortion.
21. East Texas Baptist University is a Christian liberal arts university loca ted in Marshall, Texas. Established in 1 912, East Texas Baptis t University is committed to offering a com plete education that develops students spiritually, intellectually, and professionally.
22. Faith is central to the ed ucational mission of East Texas Baptist University. East Texas Baptist University describes itself as providing “academic excellence while integrating faith with learning,” and comm its, in its m ission, to “C hristian stewardship and to providing and maintaining and env ironment conducive to lear ning, leadership development, and academic excellence.”
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23. Consistent with its mission, East Texas Baptist University works to manifest its Christian faith in all aspects of its adm inistration. All East Texas Baptis t University em ployees profess faith in Jesu s Christ, which estab lishes the essen tial framework within which m embers of the University both unite in shared beliefs and explore differences.
24. East Texas Baptist University hold s religious beliefs that include traditional Christian teachings on the sanctity of life. East Texas Baptist University believ es and teach es that each human being bears the image and likeness of God, and therefore that all human life is sacred and precious, from the moment of conception. East Te xas Baptist University therefore believes and teaches that abortion ends a human life and, with rare exceptions, is a sin.
25. East Texas Baptist University has more than 1,290 graduate and undergraduate students. 26. East Texas Baptist University has approximately 227 full-tim e and 56 part-tim e employees. 27. As part of its comm itment to Christian e ducation, East Texas Bapt ist University also promotes the spiritual and physical well-being a nd health of its students and e mployees. This includes provision of generous health services and health insurance for its employees. 28. It is a violation of East Texas Baptist University’s religious beliefs to deliberately provide insurance coverage for drugs, devices, services, or procedures inconsistent with its faith, in particular abortion-inducing drugs, abortion procedures, and related services. 29. It is s imilarly a vio lation of East Texas Baptist Univ ersity’s religious beliefs to deliberately provide health insuran ce that wou ld facilitate acces s to abortion-inducing drugs, abortion procedures, and related services
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30. East Texas Baptist University has no conscien tious objection to providing coverage for non-abortion-inducing contraceptive drugs and devices.
31. The plan year for East Texas Baptist Univ ersity’s employee insurance plans begin s on January 1 of each year.
32. East Texas Baptist University’s employee insurance plans are not eligible for grandfather status. See 45 C.F.R. § 147.140(a)(1)(i), 26 C.F. R. § 54.9815-1251T(a)(1)(i); 29 C.F.R . § 2590.715-1251(a)(1)(i).
33. Houston Baptist Univ ersity is a Christian liberal arts university located in Houston, Texas. Established in 1960, Houston Baptist U niversity is comm itted to offering a com plete education that develops students spiritually, intellectually, and professionally.
34. Faith is central to the educational mission of Houston Baptist University. Houston Baptist University describes itself as “dedicated to the development of moral character, the enrichm ent of spiritual lives, and the perpetuation of grow th in Christian id eals,” and commits, in its mission, to “provide a learning experien ce that instills in students a passion for academ ic, spiritual, and professional excellence as a resu lt of our central confe ssion, ‘Jesus Christ is Lord.’”
35. Consistent with its m ission, Houston Baptist Un iversity works to manifest its Christian faith in all aspects of its adm inistration. All Houston Baptist University employees profess faith in Jesus Christ, which establishes the essential f ramework within which m embers of the University both unite in shared beliefs and explore differences.
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36. Houston Baptist Univ ersity holds r eligious beliefs that include traditional Christian teachings on the san ctity of life. Houston Bap tist University believes and teach es that each human being bears the image and likeness of God, and therefore that all human life is sacred and precious, from the m oment of conception. H ouston Baptist University therefore believes and teaches that abortion ends a human life and, with rare exceptions, is a sin.
37. Houston Baptist University has more than 2,589 graduate and undergraduate students. 38. Houston Baptist University has approxi mately 309 full-tim e and 111 part-tim e employees. 39. As part of its comm itment to Christian education, Houston Bapt ist University also promotes the spiritual and physical well-being a nd health of its students and e mployees. This includes provision of generous health services and health insurance for its employees. 40. It is a violation of Houston Baptist University’s religious beliefs to deliberately provide insurance coverage for drugs, devices, services, or procedures inconsistent with its faith, in particular abortion-inducing drugs, abortion procedures, and related services. 41. It is similarly a violation of Houston Baptist University’s religious beliefs to deliberately provide health insurance that would facili tate access to abortion-ind ucing drugs, abortion procedures, and related services. 42. Houston Baptist University has no conscientious objection to providing coverage for nonabortion-inducing contraceptive drugs and devices. 43. The plan year for Houston Baptist Universi ty’s employee insurance plans begins on January 1 of each year.
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44. Houston Baptist University’s em ployee insurance plans a re not elig ible for grandfather status. See 45 C.F.R. § 147.140(a)(1)(i), 26 C.F. R. § 54.9815-1251T(a)(1)(i); 29 C.F.R . § 2590.715-1251(a)(1)(i). II. The Affordable Care Act
45. In March 2010, Congress passed, and Presid ent Obama signed into law, the Patient Protection and Affordable Care Act, Pub. L. 111-148 (March 23, 2010), and the Health Care and Education Reconciliation Act, Pub. L. 111-15 2 (March 30, 2010), collectively known as the “Affordable Care Act.”
46. The Affordable Care Act regulates the nati onal health insurance market by directly regulating “group health plans” and “health insurance issuers.”
47. The Act does not apply equally to all plans. 48. The Act does not apply equally to all insurers. 49. The Act does not apply equally to all individuals. 50. The Act applies differently to em ployers with fewer than 50 em ployees, not counting seasonal workers. 26 U.S.C. § 4980H(c)(2)(A). 51. According to the United States census, more than 20 million individuals are employed by firms with fewer than 20 em ployees. http://www.census.gov/econ/smallbus.html. Em ployers with less than 50 employees would therefore employ an even higher number of workers. 52. Certain provisions of the Act do not apply equally to mem bers of certain re ligious groups. See, e.g., 26 U.S.C. §§ 5000A(d)(2)(a)(i) and (ii) (individual mandate does not apply to members of “recognized religious sect or division” that conscientiously objects to acceptance of
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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).

53. The Act’s preventive care requirements do not apply to employers who provide so-called

“grandfathered” health care plans.

54. Employers who follow HHS guidelines m ay continue to use grandfathered plans

indefinitely.

55. HHS has predicted tha t a majority of large employers, employing more than 50 m illion

Americans, will con tinue to use grandfathered plans th rough at least 2014, and th at a th ird of

small employers with between 50 a

nd 100 em ployees may do likewise.

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

grandfathered.html.

56. The Act is not generally applicable because it provides for numerous exemptions from its

rules.

57. The Act is not neutral because some groups, both secular and religious, enjoy exemptions

from the law, while certain religious groups do not.

58. The Act creates a system of individualized exemptions.

59. The Department of Health and Hum an Services has the authority under the Act to grant

compliance waivers to employers and other health insurance plan issuers (“HHS waivers”).

60. HHS waivers release em ployers and other plan issuers from complying with the

provisions of the Act.

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61. HHS decides whether to grant waivers base d on individualized wa iver requests from particular employers and other health insurance plan issuers.
62. Upon information and belief, thousands of HHS waivers have been granted. 63. The Act is not neutral because som e secular and religious groups have received statutory exceptions while other religious groups and individuals have not. 64. The Act is not generally applicable because Defendants have granted numerous waivers from complying with its requirements. 65. The Act is not generally applicable becaus e it does not ap ply equally to a ll individuals and plan issuers. 66. Defendants’ waiver practices create a system of individualized exemptions. III. The Preventive Care Mandate 67. One of the provisions of the Affordable Care Act m andated that health plans “provide coverage for and shall not im pose any cost sharing requirements for . . . with resp ect to women, such additional preventive care and screen ings . . . as provided f or in comprehensive guidelines supported by the Health Resources and Services Adm inistration” and directed the Secretary of Health and Hum an Services to determ ine what would constitu te “preventative care” under the mandate. 42 U.S.C § 300gg–13(a)(4). 68. On July 19, 2010, HHS, along with the Departm ent of Tre asury and the Departm ent of Labor, published an interim final rule under the Affordable Care Act. 75 Fed. Reg. 41726 (2010).1 The interim final rule require d providers of group health in surance to cover preventive
1 For ease of reading, references to “HHS” in this Complaint are to all three Departments.
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care for women as provided in guidelines to be published by the Health Resources and Services

Administration at a later date. 75 Fed. Reg. 41759 (2010).

69. The Mandate also requires group health care plans and issuers to provide education and

counseling for all women beneficiaries with reproductive capacity.

70. The Mandate went into effect immediately as an “interim final rule.”

71. HHS accepted public co mments to the 2010 in terim final rule until Sep tember 17, 2010.

A number of groups filed comm ents warning of the potential conscience im plications of

requiring religious individuals an d groups to pay for certain kinds of health care, including

contraception, sterilization, and abortion.

72. HHS directed a private health policy organiza tion, the Institute of Me dicine (“IOM”), to

suggest a list of recomm ended guidelines describing which drugs, procedures, and services

should be covered by all health plan

s as preventative care for wom

en. See

http://www.hrsa.gov/womensguidelines.

73. In developing its guidelines, IOM invited a select num ber of groups to m ake

presentations on the preventive care that should be mandated by all health plans. These were the

Guttmacher Institute, the American Congress of Obstetricians and Gynecologists (ACOG), Prof.

John Santelli, a Senior Fellow at the Guttm acher Intitute, the National W omen’s Law Center,

National Women’s Health Network, Planned P arenthood Federation of America and Prof. Sara

Rosenbaum, a proponent of government-funded abortion.

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74. No religious groups or other groups that oppose governm ent-mandated coverage of contraception, sterilization, a bortion, and related education and counseling were am ong the invited presenters.
75. One year after the first interim final rule was published, on July 19, 2011, the IOM published its recommendations. It recommended that the preventative services include “All Food and Drug Adm inistration approved contraceptive m ethods [and] sterilization procedures.” Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps (July 19, 2011).
76. FDA-approved contraceptive m ethods include birth-control pills; prescription contraceptive devices, including IUDs; levonorgestral, also known as the “morning-after pill” or “Plan B”; and ulipristal, also known as “Ella” or the “week-after pill”; and other drugs, devices, and procedures. The FDA birth control guide speci fically notes that Plan B and Ella m ay work by preventing “attachm ent (implantation)” of a fertilized egg to a wom an’s uterus. See http://www.fda.gov/downloads/ForConsumers/ByAudience/ForWomen/FreePublications/UCM2 82014.pdf.
77. Thirteen days later, on August 1, 2011, HRSA issued guidelines adopting the IOM recommendations. See http://www.hrsa.gov/womensguidelines. On the sam e day HHS, t he Department of Labor, a nd the Departm ent of Treasury promulgated an a mended interim final rule which reiterated the Mandate and added a narrow exemption for “religious employer[s].” 76 Fed. Reg. 46621 (published Aug. 3, 2011); 45 C.F.R. § 147.130.
78. HHS did not take into account the concerns of religious organizations and individuals in the comments submitted before the Mandate was issued.
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79. The Mandate was unres ponsive to the concer ns stated in the comments subm itted by religious organizations and individuals.
80. When it issued the Mandate, HHS requested comments from the public by September 30, 2011, and indicated that comments would be available online.
81. Upon information and belief, over 100,000 comments were subm itted against the Mandate and its narrow “religious employer” exemption.
82. On October 5, 2011, six days after the comment period ended, Defendant Sebelius gave a speech at a fundraiser for NARAL Pro-Choice A merica. She told the asse mbled crowd that “we are in a war.”
83. The Mandate fails to take into account the statutory and constitutional conscience rights of religious organizations like the Universities, even though those rights were repeatedly raised in the public comments.
84. The Mandate requires that the Universities pr ovide coverage or access to coverage for abortion-causing drugs and relate d education and counseling agai nst their consciences in a manner that is contrary to law.
85. The Mandate constitutes governm ent-imposed pressure and coercion on the Universities to change or violate their religious beliefs.
86. The Mandate exposes the Universities to substantial fines and other penalties and pressures for refusal to change or violate their religious beliefs.
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87. The Mandate im poses a burden on the Universities’ em ployee recruitment efforts by creating uncertainty as to whether th e Universities will be able to offer health in surance beyond 2012.
88. The Mandate places the Universities at a com petitive disadvantage in their efforts to recruit and retain employees.
89. The Mandate forces the Universities to provide coverage or access to co verage for Plan B, Ella, and other abortifacient drugs in violation of the Universities’ religious beliefs.
90. The Universities have a sincere relig ious objection to providing coverage for Plan B and Ella since they believe that those drugs coul d prevent a human embryo—which they understand to include a fertilized egg before it im plants in the u terus—from implanting in the wall of the uterus, causing the death of the embryo.
91. The Universities consider the p revention by a rtificial means of the implantation of a human embryo to be an abortion.
92. The Universities believe that Plan B and Ella can cause the death of the embryo. 93. Plan B can prevent the implantation of a human embryo in the wall of the uterus. 94. The drug Ella can prevent the implantation of a human embryo in the wall of the uterus. 95. Plan B and Ella can cause the death of the embryo. 96. The use of artificial means to prevent the implantation of a human embryo in the wall of the uterus constitutes an “abortion” as that term is used in federal law. 97. The use of artificial m eans to cause th e death of a h uman embryo constitutes an “abortion” as that term is used in federal law.
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98. The Mandate forces the Universities to pr ovide insurance coverage or access to insurance coverage for em ergency contraception, including Plan B and Ella free of charge, regardless of the ability of insured persons to obtain these drugs from other sources.
99. The Mandate forces the Universities to pr ovide insurance coverage or access to insurance coverage for education and counseling concerning abortion that directly conflicts with the Universities’ religious beliefs and teachings.
100. Providing this counseling and education is incompatible and irreconcilable with the explicit messages and speech of the Universities.
101. The Mandate forces the Universities to c hoose among violating their religious beliefs, incurring substantial fines, or terminating their employee health insurance coverage.
102. Group health plans and issuers will be subj ect to the Mandate starting with the first insurance plan year that begins on or after August 1, 2012.
103. The Universities have already had to devote significant institutional resources, including both staff tim e and funds, to determ ining how to respond to the Ma ndate. The Universities anticipate continuing to make such expenditu res of time and m oney up until the tim e that the Mandate goes into effect. IV. The Narrow and Discretionary Religious Exemption
104. The Mandate indicates that th at the Health Resources an d Services Administration (“HRSA”) “may” grant religiou s exemptions to certain religious em ployers. 45 C.F.R. § 147.130(a)(iv)(A).
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105. The Mandate allows HRSA to grant exemptions for “religious employers” who “meet[ ] all of the following criteria: (1) The inculca tion of religious values is the pu rpose of the organization. (2) The organization prim arily employs persons who share the religious tenets of the organization. (3) The organizatio n serves primarily persons who share the religious tenets of the organization. (4) The organi zation is a nonprofit organizati on as described in section 6033(a)(1) and section 6033(a)(3)(A )(i) or (iii) of the Intern al Revenue Code of 1986, as amended.” 45 C.F.R. § 147.130(a)(iv)(B).
106. The Mandate imposes no constraint on HRSA’s discretion to grant exemptions to some, all, or none of the organizations meeting the Mandate’s definition of “religious employers.”
107. HHS stated that it based the exem ption on comments on the 2010 interim final rule. 76 Fed. Reg. 46621.
108. Most religious organizations, including the Universities, have more than one purpose. 109. For most religious organizations, including the Universities, the inculcation of religious values is only one purpose among others. 110. The Universities are not organizations de scribed in Section 6033(a)(1) and Section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended. 111. The Universities reasonably expect that they will be subject to th e Mandate despite the existence of the exemption. 112. On January 20, 2012, Defendant Sebelius announ ced that there would be no change to the “religious employer” exemption. Instead, she added that “[n]onprofit employers who, based on religious beliefs, do not currently provide contraceptive coverage in their insurance plan, will
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be provided an addition al year, until August 1, 2013, to com ply with the new law,” on the condition that those employers certify they qualify for the extension. At the sam e time, however, Sebelius announced that HHS “inte nd[s] to require em ployers that do not offer coverage of contraceptive services to provide notice to employees, which will also state that contraceptive services are available at sites such as community health centers, public clinics, and hospitals with income-based support.” See Statement by U.S. Dep’t of Hea lth and Hu man Services Secretary Kathleen Sebelius, available at http://www.hhs.gov/news/press/2012pres/01/20120120a.html (last visited February 7, 2012).
113. On February 10, 2012, President Obama held a press conference at which he announced an intention to initiate, at some unspecified future date, a separate rulemaking process that would work toward creating a different insurer-base d mandate. This prom ised mandate would, the President stated, attempt to take into account the kinds of religious objections voiced against the original Mandate contained in the interim final rule.
114. On that sam e day—February 10, 2012—the De fendants issued a “guidance bulletin” describing a “Tem porary Enforcement Safe Har bor” (“Safe Harbor”) from the Mandate. The Safe Harbor applies to “non-exem pted, non-grandfathered group health plans established and maintained by non-profit org anizations with religious objections to contraceptive coverage (and any health insurance coverage offered in connec tion with such plans).” Under the Safe Harbor, the Defendants state that qualifyi ng organizations will not be subject to enf orcement of the
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Mandate “until the first plan year that begins o n or after August 1, 2013,” provided they m eet certain criteria outlined in the guidance bulletin.2
115. Those Safe Harbor criteria require an organiza tion to self-certify that (1) it operates as a non-profit; (2) it has not, from February 10, 2012 onward, offered “contraceptive coverage . . . by the group health plan established or m aintained by the organization, consistent with any applicable State law, because of the religious beliefs of the organization”; and (3) it has provided (for the first plan year beginning on or after A ugust 1, 2012) a notice to plan participants stating that “[t]he organization that sponsors your groups health plan has certified that it qualifies for a temporary enforcement safe harb or with re spect to th e Federal requirement to cover contraceptive services without co st sharing,” and that “[d]uring this one-year period, coverage under your group health plan will not include coverage of contraceptive services.”
116. On February 15, 2012, the Defendants adopted as final, “without change,” the Mandate and its narrow “religious employers” exemption. 77 Fed. Reg. 8725, 8727.
117. On March 16, 2012, the Defendants issued an Advance Notice of Proposed Rulemaking (“ANPRM”). The ANPRM announced the Defendants ’ intention to create an “accommodation” for non-exempt religious organizations under wh ich the Defendants would require a health insurance issuer (or third party administrator) to provide coverage for these drugs and services—

2

See “Guidance on Tem porary Enforcement Safe Ha rbor for Certain Em ployers, Group Health

Plans and Group Health Insurance Issuers with Re spect to the Requirement to Cover Contraceptive

Services Without Cost Sharing Under Section 2713 of the Public Health Service Act, Section 715(a)(1) of

the Employee Retirement Income Securit y Act, and Section 9815(a)(1) of t he Internal Revenue Code,”

U.S. DEP’T OF HEALTH & HUMAN SERVS. (Feb. 10, 2012), at 3, available at

http://cciio.cms.gov/resources/files/Files2/02102012/20120210-Preventive-Services-Bulletin.pdf (last

visited October 4, 2012).

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without cost sharing and without charge—to employees covered under the organization’s health plan. The ANPRM solicited public comm ents on structuring the propos ed accommodation, and announced the Defendants’ intention to finalize an accommodation by the end of the Safe Harbor period. See https://s3.amazonaws.com/public-inspection.federalregister.gov/2012-06689.pdf (published on March 21, 2012).
118. The ANPRM also ann ounced Defendants’ in tention to apply the Tem porary Safe Harbor provision to student insurance plan s provided by “nonprofit institutions of higher education that meet comparable criteria” to those established for the e mployer safe harbor. See id. at 14.
119. The ANPRM did not announce any intention to alter the Manda te or its narrow “religious employer” exem ption, which were m ade “final, without change” on February 15, 2012.
120. East Texas Baptist University will certif y that it excluded coverage for e mergency contraceptives because of its religious beliefs prior to Fe bruary 10, 2012 and will thu s be protected temporarily from government enforcement of the Mandate.
121. Houston Baptist Unive rsity will ce rtify that it excluded coverage for em ergency contraceptives because of its religious beliefs prior to Fe bruary 10, 2012 and will thu s be protected temporarily from government enforcement of the Mandate.
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122. While the Safe Harbor, by its ter ms, will temporarily protect the Universities from government enforcement of the Mandate, the Ma ndate also triggers a right to private enforcement under ERISA to which leaves the Universities completely exposed to private suits.3
123. The Universities will be subject to enforcement action by Defendants under the Mandate no later than January 1, 2014.
124. On January 1, 2014, the Universities will f ace an unco nscionable choice: eith er violate the law, or violate their faith.
CLAIMS COUNT I Violation of the Religious Freedom Restoration Act Substantial Burden 125. The Universities incorporate by reference all preceding paragraphs. 126. The Universities’ sincerely held religious beliefs prohibit them from providing coverage or access to coverage for abortio n or related education and coun seling. The Universities’ compliance with these beliefs is a religious exercise. 127. The Mandate creates governm ent-imposed coercive pressure on the Universities to change or violate their religious beliefs. 128. The Mandate chills the Universities’ religious exercise. 129. The Mandate exposes the Universities to substantial fines for their religious exercise.
3 See 29 U.S.C. § 1132(a) (“A civil action may be brought . . . by a participant or beneficiary . . . to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan”); 29 U.S.C. § 1185d(a)(1) (incorporating portions of ACA).
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130. The Mandate exposes th e Universities to subs tantial competitive disadvantages, in that they will no longer be permitted to offer health insurance.
131. The Mandate imposes a substantial burden on the Universities’ religious exercise. 132. The Mandate furthers no compelling governmental interest. 133. The Mandate is not narrowly tailored to any compelling governmental interest. 134. The Mandate is not the least restrictive means of furthering Defendants’ stated interests. 135. The Mandate and Defendants’ threatened enforcement of the Mandate violate the Universities’ rights secured to the m by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. 136. Absent injunctive and declarato ry relief ag ainst the Man date, the Univers ities have been and will continue to be harmed.
COUNT II Violation of the First Amendment to the United States Constitution
Free Exercise Clause Substantial Burden 137. The Universities incorporates by reference all preceding paragraphs. 138. The Universities’ sincerely held religious beliefs prohibit them from providing coverage or access to coverage for abortio n or related education and coun seling. The Universities’ compliance with these beliefs is a religious exercise. 139. Neither the Affordable Care Act nor the Mandate is neutral. 140. Neither the Affordable Care Act nor the Mandate is generally applicable. 141. Defendants have created categorical exem ptions and individualized exem ptions to the Mandate.
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142. The Mandate furthers no compelling governmental interest. 143. The Mandate is not the least restrictive means of furthering Defendants’ stated interests. 144. The Mandate creates governm ent-imposed coercive pressure on the Universities to change or violate their religious beliefs. 145. The Mandate chills the Universities’ religious exercise. 146. The Mandate exposes the Universities to substantial fines for their religious exercise. 147. The Mandate exposes th e Universities to subs tantial competitive disadvantages, in that they will no longer be permitted to offer health insurance. 148. The Mandate imposes a substantial burden on the Universities’ religious exercise. 149. The Mandate is not narrowly tailored to any compelling governmental interest. 150. The Mandate and Defendants’ threatened enforcement of the Mandate violate the Universities’ rights secured to them by the Free Ex ercise Clause of the First Am endment of the United States Constitution. 151. Absent injunctive and declarato ry relief ag ainst the Man date, the Univers ities have been and will continue to be harmed.
COUNT III Violation of the First Amendment to the United States Constitution
Free Exercise Clause Intentional Discrimination 152. The Universities incorporate by reference all preceding paragraphs. 153. The Universities’ sincerely held religious beliefs prohibit them from providing coverage or access to coverage for abortio n or related education and coun seling. The Universities’ compliance with these beliefs is a religious exercise.
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154. Despite being informed in detail of thes e beliefs beforehand, Defendants designed the Mandate and the relig ious exemption to the Mandate in a way that m ade it im possible for the Universities to comply with their religious beliefs.
155. Defendants promulgated both the Mandate and the religious exemption to the Mandate in order to suppress the religious exercise of the Universities and others.
156. The Mandate and Defendants’ th reatened enforcement of the Mandate thus violate the Universities’ rights secured to them by the Free Ex ercise Clause of the First Am endment of the United States Constitution.
157. Absent injunctive and declarato ry relief ag ainst the Man date, the Univers ities have been and will continue to be harmed.
COUNT IV Violation of the First Amendment to the United States Constitution
Free Exercise Clause Discrimination Among Religions 158. The Universities incorporate by reference all preceding paragraphs. 159. By design, Defendants imposed the Mandate on some religious organizations but not on others, resulting in discrimination among religions. 160. The Mandate vests HRSA with unbridled di scretion in deciding whether to allow exemptions to some, all, or no organizations meeting the definition of “religious employers.” 161. The Mandate and Defendants’ th reatened enforcement of the Mandate thus violate the Universities’ rights secured to them by the Free Ex ercise Clause of the First Am endment of the United States Constitution.
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162. Absent injunctive and declarato ry relief ag ainst the Man date, the Univers ities have been and will continue to be harmed.
COUNT V Violation of the First Amendment to the United States Constitution
Establishment Clause Selective Burden/Denominational Preference (Larson v. Valente) 163. The Universities incorporate by reference all preceding paragraphs. 164. By design, defendants imposed the Mandate on some religious organizations but not on others, resulting in a selective burden on the Universities. 165. The Mandate vests HRSA with unbridled di scretion in deciding whether to allow exemptions to some, all, or no organizations meeting the definition of “religious employers.” 166. The Mandate and Defendants’ threatened enforcement of the Mandate therefore violate the Universities’ rights secured to them by the Establishment Clause of the First Amendment of the United States Constitution. 167. Absent injunctive and declarato ry relief ag ainst the Man date, the Univers ities have been and will continue to be harmed.
COUNT VI Violation of the First Amendment to the United States Constitution
Free Exercise and Establishment Clauses Excessive Entanglement
168. The Universities incorporate by reference all preceding paragraphs. 169. The Free E xercise Clause and the Establ ishment Clause of the Firs t Amendment prohibit intrusive government inquiries into the re ligious beliefs of indivi duals and institutions, and other forms of excessive entanglement between religion and government.
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170. This prohibition on excessiv e entanglement protects organizations as we ll as individuals.
171. In order to qualify for the “r eligious employers” exemption to the M andate, entities must submit to an invasive governm ent investigation into an organization’s religious beliefs, including whether the organizatio n’s “purpose” is the “inculca tion of religious values” and whether the organization “prim arily employs” and “primarily serves” individuals who share th e organization’s religious tenets.
172. It is un clear how the governm ent will dete rmine whether an organization m eets the Mandate’s definition of a sufficiently “religio us” organization, leading to the g overnment’s unbridled discretion to determine whether to exempt an organization.
173. The Mandate thus requires the governm ent to engage in inva sive inquiries and judgments regarding questions of religious belief or practice.
174. The Mandate results in an excessive entanglement between religion and government. 175. The Mandate is therefore unconstitutional and invalid. 176. The enactment and im pending enforcement of the Mandate violates the Free Exercise Clause and the Establishment Clause of the First Amendment. 177. Absent injunctive and declarato ry relief ag ainst the Man date, the Univers ities have been and will continue to be harmed.
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COUNT VII Violation of the First Amendment to the United States Constitution
Free Exercise and Establishment Clauses Excessive Interference in Matters of Internal Governance 178. The Universities incorporate by reference all preceding paragraphs. 179. The Free Exercis e Clause and Establishm ent Clause protect the fr eedom of religious organizations to d ecide for them selves, free from state interferen ce, matters of church government as well as those of faith and doctrine. 180. Under these Clauses, the governm ent may not interfere with a religious organization’s internal decisions concerning the organization’s religious structure, ministers, or doctrine. 181. Under these Clauses, the governm ent may not interfere with a religious organization’s internal decision if that interference would affect the faith and mission of the organization itself. 182. The Universities are religious organizations. 183. It is a violation of the Univ ersities’ religious beliefs to deliberately provide insurance coverage for drugs, devices, servic es, or procedures inconsistent with their faith, in particular abortion-inducing drugs, abortion procedures, and related services. Likewise, it is a violation of the Universities’ religious beliefs to provide h ealth insurance for such drugs, procedures, or services even if those items were paid for by an insurer and not by the Universities. 184. The government may not interf ere with the Universities’ religious beliefs on abortioninducing drugs, abortion procedures, and related services. 185. The Mandate interferes with the Universities’ internal decisions by requiring it either to facilitate practices that directly conflict with their religious beliefs or face substantial penalties.
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186. The Mandate and its religious em ployer exemption interfere with th e organizational structure of the Univer sities by requ iring the Un iversities to include o r facilitate coverage for practices that directly conflict with their religious beliefs but purporting to exempt churches.
187. Because the Mandate interferes with the internal decisionmaking and organizatio nal structure of the Universities in a m anner that affects their faiths and m issions, the Mandate violates the Establishment Clause and the Free Exercise Clause of the First Amendment.
188. Absent injunctive and declarato ry relief ag ainst the Man date, the Univers ities have been and will continue to be harmed.
COUNT VIII Violation of the First Amendment to the United States Constitution
Freedom of Speech Compelled Speech 189. The Universities incorporate by reference all preceding paragraphs. 190. The Universities teach that abortion violates their religious beliefs. 191. The Mandate would compel the Universities to cooperate in activ ities through their provision of health ins urance that the Univer sities teach are vio lations of the Universities ’ religious beliefs. 192. The Mandate would com pel the Universitie s to provide education and counseling related to abortion. 193. Defendants’ actions thus violate the Univer sities’ rights to be free from compelled speech as secured to it by the First Amendment of the United States Constitution.
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194. The Mandate’s compelled speech requirement is not narrowly tailo red to a compelling governmental interest.
195. Absent injunctive and declarato ry relief ag ainst the Man date, the Univers ities have been and will continue to be harmed.
COUNT IX Violation of the First Amendment to the United States Constitution
Freedom of Speech Expressive Association 196. The Universities incorporates by reference all preceding paragraphs. 197. The Universities teach that abortion violates their religious beliefs. 198. The Mandate would compel the Universities to cooperate in activ ities through their provision of health ins urance that the Univer sities teach are vio lations of the Universities ’ religious beliefs. 199. The Mandate would compel the Universiti es to provide, through their provision of health insurance, education and counseling related to abortion. 200. Defendants’ actions thus violate the Univers ities’ rights of expressive association as secured to them by the First Amendment of the United States Constitution. 201. Absent injunctive and declarato ry relief ag ainst the Man date, the Univers ities have been and will continue to be harmed.
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COUNT X Violation of the First Amendment to the United States Constitution
Free Exercise Clause and Freedom of Speech Unbridled Discretion
202. The Universities incorporate by reference all preceding paragraphs. 203. By stating that HRSA “m ay” grant an ex emption to certain religious groups, the Mandate vests HRSA with unbridled discretion over which organizations can have their First Amendment interests accommodated. 204. The Mandate vests HRSA with unbridled di scretion to determ ine whether a religious organization such as the Universities “primarily” serves and employs members of the same faith as the organization. 205. Defendants’ actions therefore violate the Universities’ rights not to be s ubjected to a system of unbridled discretion when engaging in speech or when engaging in religious exercise, as secured to them by the First Amendment of the United States Constitution. 206. Absent injunctive and declarato ry relief ag ainst the Man date, the Univers ities have been and will continue to be harmed.
COUNT XI Violation of the Administrative Procedure Act
Lack of Good Cause 207. The Universities incorporates by reference all preceding paragraphs. 208. Defendants’ stated reasons that public co mments were unnecessary, impractical, and opposed to the public interest are false and insufficient, and do not constitute ‘good cause.’
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209. Without proper notice and opportunity for pub lic comment, Defendants were unable to take into account the full i mplications of the regulations by completing a m eaningful “consideration of the relevant m atter presented.” Defendants did not consider or respond to the voluminous comments they received in opposition to the interim final rule.
210. Therefore, Defendants have taken agency action not in observance with procedures required by law, and the Universities are entitled to relief pursuant to 5 U.S.C. § 706(2)(D).
211. Absent injunctive and declarato ry relief ag ainst the Man date, the Univers ities have been and will continue to be harmed.
COUNT XII Violation of the Administrative Procedure Act
Arbitrary and Capricious Action 212. The Universities incorporate by reference all preceding paragraphs. 213. In promulgating the Mandate, Defendants failed to consider the con stitutional and statutory implications of the mandate on the Universities and similar organizations. 214. Defendants’ explanation for it s decision not to exem pt the Universities and sim ilar religious organizations from the Mandate runs counter to the evid ence submitted by religiou s organizations during the comment period. 215. Thus, Defendants’ issuance of the interim final rule was arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because th e rules fail to consider the full extent of their implications and they do not take into consideration the evidence against them. 216. Absent injunctive and declarato ry relief ag ainst the Man date, the Univers ities have been and will continue to be harmed.
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COUNT XIII Violation of the Administrative Procedure Act
Agency Action Not in Accordance with Law Weldon Amendment
Religious Freedom Restoration Act First Amendment to the United States Constitution 217. The Universities incorporate by reference all preceding paragraphs. 218. The Mandate is contrary to the provi sions of the Weldon Am endment of the Consolidated Security, Disaster Assistance, an d Continuing Appropriations Act of 2009, Public Law 110 329, Div. A, Sec. 101, 122 Stat. 3574, 3575 (Sept. 30, 2008). 219. The Weldon Amendment provides that “[n]one of the funds made available in this A ct [making appropriations for Defendants Departm ent of Labor and Health and Human Services] may be m ade available to a Federal agency or program . . . i f such agency, program , or government subjects any institutio nal or individual health care en tity to discrim ination on the basis that the health c are entity d oes not pro vide, pay for, provide coverage of, or refer for abortions.” 220. The Mandate requires issuers, including the Universities, to provide coverage or acces s to coverage of all Federal Drug Administration-approved contraceptives. 221. Some FDA-approved contraceptives cause abortions. 222. As set forth above, the Mandate violates RFRA and the First Amendment. 223. Under 5 U.S.C. § 706(2)(A), the Mandate is contrary to existing law, and is in violation of the APA.
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224. Absent injunctive and declarato ry relief ag ainst the Man date, the Univers ities have been and will continue to be harmed.
COUNT XIV Violation of the Administrative Procedure Act
Agency Action Not in Accordance with Law Affordable Care Act
225. The Universities incorporate by reference all preceding paragraphs. 226. The Mandate is contrary to the provisions of the Affordable Care Act. 227. Section 1303(b)(1)(A) of the Affordable Care Act states that “nothing in this title” — i.e., title I of the Act, which includes the provision dealing with “preventive services”—“shall be construed to require a qualified health plan to provide coverage of [abortion] services . . . as part of its essential health benefits for any plan year.” 228. Section 1303 further states that it is “the issuer” of a plan that “shall determine whether or not the plan provides coverage” of abortion services. 229. Under the Affordable Care Act, Defendants do not have the authority to decide whether a plan covers abortion; only the issuer does. 230. The Mandate requires issuers, including the Un iversities, to provide coverage or access to coverage for all Federal Drug Administration-approved contraceptives. 231. Some FDA-approved contraceptives cause abortions. 232. Under 5 U.S.C. § 706(2)(A), the Mandate is contrary to existing law, and is in violation of the APA.
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233. Absent injunctive and declarato ry relief ag ainst the Man date, the Univers ities have been and will continue to be harmed.
PRAYER FOR RELIEF Wherefore, the Universities request that the Court:
a. Declare that the Mandate and Defendants’ enforcement of the Mandate against the University violate the First Amendment of the United States Constitution;
b. Declare that the Mandate and Defendants’ enforcement of the Mandate against the University violate the Religious Freedom Restoration Act;
c. Declare that the Mandate was issued in violation of the Administrative Procedure Act;
d. Issue an order prohibiting Defendants from enforcing the Mandate against the Universities and other organizations that object on religious grounds to providing insurance coverage for contraceptives (including abortifacient contraceptives), sterilization procedures, and related education and counseling;
e. Award the Universities the costs of this action and reasonable attorney’s fees; and f. Award such other and further relief as it deems equitable and just.
JURY DEMAND The Universities request a trial by jury on all issues so triable.
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Respectfully submitted this 9th day of October, 2012. s/ Eric Rassbach
Eric C. Rassbach (Texas Bar. No. 24013375) Attorney in charge (pro hac vice application to be filed) Eric S. Baxter Of Counsel (pro hac vice application to be filed) The Becket Fund for Religious Liberty 3000 K St. NW, Ste. 220 Washington, DC 20007 Tel.: (202) 955-0095 Fax: (202) 955-0090 erassbach@becketfund.org ebaxter@becketfund.org Scott Keller Of Counsel Yetter Coleman LLP Chase Tower 221 West 6th Street ~ Suite 750 Austin, Texas 78701 skeller@yettercoleman.com Counsel for Plaintiffs
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 Case 4:12-cv-03009 Document 69 Filed in TXSD on 08/30/13 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

EAST TEXAS BAPTIST UNIVERSITY, and HOUSTON BAPTIST UNIVERSITY,

Plaintiffs,

v. KATHLEEN SEBELIUS, et al.
Defendants.

Civil No. 12-3009 Plaintiffs’ Combined Motion for Partial Summary Judgment and
Preliminary Injunction

Pursuant to Federal Rule of Civil Procedure 56, Plaintiffs East Texas Baptist University and Houston Baptist University hereby move for partial summary judgment. Because there is no genuine dispute as to any fact material to Plaintiffs’ claims enumerated in the accompanying memorandum of law, Plaintiffs are entitled to summary judgment as a matter of law, and respectfully request that this Court grant summary judgment in their favor on counts I, II, III, IV, V, VII and IX of their first amended complaint. See Fed. R. Civ. P. 56(a).
Further, Pursuant to Federal Rule of Civil Procedure 65, Plaintiffs hereby move for a preliminary injunction for the reasons set forth in the accompanying memorandum of law. Pursuant to local rule 7.1D, Plaintiffs’ counsel has conferred with counsel for Defendants concerning this motion and Defendants do not consent to the motion.
Pursuant to local rule 7.5 A, and pursuant to this Court’s order, Dkt. 60, Plaintiffs hereby request oral argument on this motion on October 25, 2013.
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Dated: August 30, 2013

Respectfully submitted,
s/Eric C. Rassbach Eric C. Rassbach (Texas Bar. No. 24013375)
S.D. Texas Bar No. 872454 Attorney in charge Diana M. Verm Of Counsel (Admitted pro hac vice) Eric S. Baxter Of Counsel (Admitted pro hac vice) The Becket Fund for Religious Liberty 3000 K St. NW, Ste. 220 Washington, DC 20007 Tel.: (202) 955-0095 Fax: (202) 955-0090 erassbach@becketfund.org dverm@becketfund.org ebaxter@becketfund.org
Reagan W. Simpson Of Counsel
James E. Zucker Of Counsel
Yetter Coleman LLP Chase Tower 221 West 6th Street ~ Suite 750 Austin, Texas 78701 rsimpson@yettercoleman.com jzucker@yettercoleman.com
Counsel for Plaintiffs

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Case 4:12-cv-03009 Document 69 Filed in TXSD on 08/30/13 Page 3 of 3 CERTIFICATE OF SERVICE
I hereby certify that on August 30, 2013, the foregoing motion was served on all counsel of record via the Court’s electronic case filing (ECF) system.
/s/ Eric C. Rassbach Eric C. Rassbach
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Case 4:12-cv-03009 Document 69-1 Filed in TXSD on 08/30/13 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

EAST TEXAS BAPTIST UNIVERSITY, and HOUSTON BAPTIST UNIVERSITY,

Plaintiffs,

v.

Civil No. 12-3009

KATHLEEN SEBELIUS, et al.

Defendants.

[PROPOSED] ORDER Having considered Plaintiffs’ motion for partial summary judgment and preliminary injunction in the above-captioned case, and this Court having reviewed the papers filed by the parties and heard arguments from counsel, the Court hereby GRANTS Plaintiffs’ motion and ORDERS that summary judgment be entered in favor of Plaintiffs on Counts I, II, III, IV, V, VII, and IX of their first amended complaint. Moreover, the Defendants, their agents, officers, and employees, and others working in concert with them are hereby preliminarily ENJOINED from any application or enforcement of the requirements imposed in 42 U.S.C. § 300gg13(a)(4), Pub. L. 111-148, §1563(e)-(f), the application of the penalties found in 26 U.S.C. §§ 4980D & 4980H and 29 U.S.C. § 1132, and any other requirement that Plaintiffs or those acting in concert with them (including specifically Plaintiffs’ third

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party administrators, relevant church plan, or issuers) provide, facilitate, contract for, otherwise enable access to the objectionable drugs or devices.

Date: _____________

______________________________ LEE H. ROSENTHAL UNITED STATES DISTRICT JUDGE

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 Case 4:12-cv-03009 Document 70 Filed in TXSD on 08/30/13 Page 1 of 65

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

EAST TEXAS BAPTIST UNIVERSITY, et al., Plaintiffs,
v.
KATHLEEN SEBELIUS, et al., Defendants.

)

)

)

)

)

)

)

Case No. 4:12-cv-03009

)

)

Plaintiffs’ Memorandum in

)

Support of Motion for Partial

)

Summary Judgment and

)

Preliminary Injunction

)

)

)

)

)

Case 4:12-cv-03009 Document 70 Filed in TXSD on 08/30/13 Page 2 of 65
TABLE OF CONTENTS
TABLE OF CONTENTS................................................................................................ ii TABLE OF AUTHORITIES .......................................................................................... v INTRODUCTION AND SUMMARY OF ARGUMENT ............................................... 1 STATEMENT OF FACTS SUPPORTING SUMMARY JUDGMENT AND INJUNCTIVE RELIEF ................................................................. 4
I. The HHS Mandate .............................................................................................. 4 A. Promulgation of the Mandate and the “religious employer” exemption..................................................................... 4 B. The Safe Harbor............................................................................................. 6 C. The Advance Notice of Proposed Rulemaking .............................................. 8 D. The Notice of Proposed Rulemaking ............................................................. 8 E. The Final Form of the Mandate .................................................................... 9
II. East Texas Baptist University and Houston Baptist University.......................................................................................................... 12 A. East Texas Baptist University .................................................................... 12 B. Houston Baptist University ........................................................................ 15
III. The Mandate’s Impact on ETBU and HBU .................................................... 19 STATEMENT OF THE NATURE AND STAGE OF THE PROCEEDING.................................................................................................... 21 STATEMENT OF THE ISSUES AND APPLICABLE STANDARDS OF REVIEW......................................................................................... 22
I. Preliminary Injunction ..................................................................................... 22 II. Summary Judgment ......................................................................................... 22 ARGUMENT ................................................................................................................ 23 I. Plaintiffs are entitled to summary judgment on
their RFRA, Free Exercise, Establishment Clause, and Free Speech claims. ................................................................................... 23
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A. The Mandate violates the Religious Freedom Restoration Act. ........................................................................................... 24
1. Plaintiffs’ abstention from facilitating access to abortion-causing drugs and devices is sincere religious exercise. ................................................................................... 25
2. The Mandate imposes a substantial burden of enormous fines on Plaintiffs’ religious exercise of abstention. ............................................................................ 26
3. The Mandate cannot satisfy strict scrutiny. ......................................... 29
a. The government has identified no compelling interest............................................................................ 29
i. Providing Plaintiffs’ employees access to the objectionable drugs and devices is not an “interest of the highest order.”..................................... 29
ii. Defendants’ purported interest is not compelling because the government has issued numerous exemptions and because the objectionable drugs and devices are already widely available.............................................................. 30
b. The Mandate will not further the government’s purported interest. ............................................................................ 31
c. Defendants have numerous alternative less restrictive means of furthering their purported interest. ............................................................................ 33
B. The Mandate violates the Free Exercise Clause. ....................................... 35
1. The Mandate is not generally applicable. ........................................... 36
2. The Mandate is not neutral. ................................................................ 37
a. The Mandate produces differential treatment among religions. ................................................................................ 37
b. The Mandate accomplishes a religious gerrymander...................................................................................... 39
c. The Mandate favors secular reasons for noncompliance over religious reasons. ............................................. 40
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C. The Mandate violates the Establishment Clause. ..................................... 41 D. The Mandate violates the Free Speech Clause. ......................................... 45 II. This Court should grant a preliminary injunction. ......................................... 49 A. Plaintiffs have a substantial likelihood of
success on the merits. .................................................................................. 49 B. Plaintiffs face a substantial threat of irreparable
injury if the injunction is not issued. .......................................................... 50 C. The threatened injury to Plaintiffs far outweighs
any harm that might result......................................................................... 51 D. An injunction will not disserve the public interest. ................................... 53 CONCLUSION............................................................................................................. 54 CERTIFICATE OF SERVICE ..................................................................................... 56 DECLARATION OF SAMUEL W. OLIVER, PH.D ...................................... Exhibit A DECLARATION OF DR. ROBERT B. SLOAN ............................................. Exhibit B DECLARATION DIANA M. VERM ............................................................... Exhibit C
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TABLE OF AUTHORITIES
CASES
A.A. ex rel. Betenbaugh v. Needville Indep. Sch. Dist., 611 F.3d 248 (5th Cir. 2010) .................................................................. 27, 29, 31, 33
Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977) .................................................................................................. 48
Adkins v. Kaspar, 393 F.3d 559 (5th Cir. 2004) .................................................................................... 25
Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 133 S. Ct. 2321 (2013) ......................................................................................... 2, 48
Ashcroft v. ACLU, 542 U.S. 656 (2004) .................................................................................................. 24
Beckwith Elec. Co., Inc. v. Sebelius, 2013 WL 3297498 (M.D. Fla. June 25, 2013).......................................................... 53
Belmont Abbey College v. Sebelius, No. 11-1989 (D.D.C. Nov. 10, 2011)........................................................................... 7
Blanco v. Select Specialty Hosp. Houston, L.P., CIV.A. H-13-1591, 2013 WL 2408189 (S.D. Tex. May 31, 2013)............................ 22
Byrum v. Landreth, 566 F.3d 442 (5th Cir. 2009) .................................................................................... 49
Citizens United v. Federal Election Comm’n, 558 U.S. 310 (2010) .................................................................................................. 26
City of Erie v. Pap’s A.M., 529 U.S. 277 (2000) .................................................................................................. 31
Colo. Christian Univ. v. Weaver, 534 F.3d 1245 (10th Cir. 2008) ........................................................................ passim
Croft v. Perry, 624 F.3d 157 (5th Cir. 2010) .................................................................................... 41
Elrod v. Burns, 427 U.S. 347 (1976) .................................................................................................. 50
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Fraternal Order of Police v. City of Newark, 170 F.3d 359 (3rd Cir. 1999) .................................................................................... 36
Geneva Coll. v. Sebelius, 2013 WL 1703871 (W.D. Pa. Apr. 19, 2013)............................................................ 53
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) .......................................................................................... passim
Grote v. Sebelius, 708 F.3d 850, (7th Cir. 2013) .......................................................................................................... 33
Hartmann v. Stone, 68 F.3d 973 (6th Cir. 1995) ...................................................................................... 41
Hobby Lobby Stores, Inc. v. Sebelius, 850 F. Supp. 2d 1278 (W.D. Okla. Nov. 19, 2012)................................................... 53
Hobby Lobby Stores, Inc. v. Sebelius, Case No. 12-6294, 2013 WL 3216103 (10th Cir. June 27, 2013)................... passim
Janvey v. Alguire, 647 F.3d 585 (5th Cir. 2011) .............................................................................. 22, 49
Korte v. Sebelius, 2012 WL 6757353 (7th Cir. Dec. 28, 2012).............................................................. 33
Larson v. Valente, 456 U.S. 228 (1982) .......................................................................................... passim
Legatus v. Sebelius, 901 F. Supp. 2d 980 (E.D. Mich. 2012).................................................................... 50
LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383 (5th Cir. 2007) .................................................................................... 23
Mayfield v. Tex. Dep’t of Criminal Justice, 529 F.3d 599 (5th Cir. 2008) .................................................................................... 40
Merced v. Kasson, 577 F.3d 578 (5th Cir. 2009) ............................................................................ passim
Moussazadeh v. Tex. Dep’t of Criminal Justice, 703 F.3d 781 (Feb. 20, 2013).................................................................................... 28
Newland v. Sebelius, 881 F. Supp. 2d 1287 (D. Colo. 2012) .............................................................. passim
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Nichols v. Alcatel USA, Inc., 532 F.3d 364 (5th Cir. 2008) .................................................................................... 22
Opulent Life Church v. City of Holly Springs, Miss., 697 F.3d 279 (5th Cir. 2012) .................................................................................... 50
Riley v. Nat’l Fed’n of the Blind of N. Carolina, Inc., 487 U.S. 781 (1988) ............................................................................................. 45-46
RTM Media, L.L.C. v. City of Houston, 518 F. Supp. 2d 866 (S.D. Tex. 2007) ...................................................................... 52
Sherbert v. Verner, 374 U.S. 398 (1963) ............................................................................................ 24, 25
Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, 309 F.3d 144 (3d Cir. 2002)...................................................................................... 38
Thomas v. Review Bd., 450 U.S. 707 (1981) .................................................................................................. 25
Time Warner Cable, Inc. v. Hudson, 667 F.3d 630 (5th Cir. 2012) .................................................................................... 47
Turner Broad. Sys. Inc. v. FCC (“Turner I”), 512 U.S. 624 (1994) .................................................................................................. 47
Tyndale House Publishers, Inc. v. Sebelius, 904 F. Supp. 2d 106 (D.D.C. 2012) .......................................................................... 50
United Fire & Cas. Co. v. Hixson Bros., Inc., 453 F.3d 283 (5th Cir.2006) ..................................................................................... 23
United States v. Playboy Entm’t Group, Inc., 529 U.S. 803 (2000) .................................................................................................. 33
United States v. United Foods Inc., 533 U.S. 405 (2001) .................................................................................................. 48
W.V. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) .................................................................................................. 46
Wisconsin v. Yoder, 406 U.S. 205 (1972) ...................................................................................... 24, 26, 31
Wooley v. Maynard, 430 U.S. 705 (1977) .................................................................................................. 46
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STATUTES 18 U.S.C. § 371............................................................................................................. 27 21 U.S.C. § 846............................................................................................................. 27 26 U.S.C. § 4980D ............................................................................................ 12, 15, 28 26 U.S.C. § 4980H................................................................................................ passim 26 U.S.C. § 5000A ........................................................................................................ 30 26 U.S.C. § 6033............................................................................................................. 6 29 U.S.C. § 1132..................................................................................................... 15, 28 42 U.S.C. § 18011......................................................................................................... 12 42 U.S.C. § 2000bb............................................................................................... passim 42 U.S.C. § 2000cc-5 .................................................................................................... 25 42 U.S.C. § 300gg-13(a) ................................................................................................. 4 Health Care and Education Reconciliation Act,
Pub. L. 111-152 (March 30, 2010).............................................................................. 4 Patient Protection and Affordable Care Act,
Pub. L. 111-148 (March 23, 2010).............................................................................. 4 Title X, 42 U.S.C. § 300 ................................................................................................. 3 OTHER AUTHORITIES Drugstore.com, Plan B One Step Emergency Contraceptive,
http://www.drugstore.com/plan-b-one-step-emergencycontraceptive/qxp387630?catid=183040 (last visited Aug. 30, 2013)..................... 34 Guttmacher Inst., Facts on Publicly Funded Contraceptive Services in the United States (May 2012), http://www.guttmacher.org/pubs/fb_contraceptive_serv.html (last visited Aug. 29, 2013) ...................................................................................... 35 James Eng, FDA OK with college’s Plan B contraceptive vending machine, MSN News, Jan. 29, 2013, available at http://news.msn.com/us/fda-ok-with-collegesplan-b-contraceptive-vending-machine?stay=1 (last visited Aug. 29, 2013) ......... 34
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KwikMed, ella Prescribed Online Legally, http://ella-kwikmed.com/ (last visited Aug. 29, 2013) ............................................ 34
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) ........................................ 52
Order, Hall v. Sebelius, No. 13-cv-00295, (D. Minn. Apr. 2, 2013) (Dkt. 11) ............ 52 Order, Sioux Chief Mfg. Co. v. Sebelius,
No. 4:13-cv-00036, (W.D. Mo. Feb. 28, 2013) (Dkt. 9)............................................. 52 Teva Women’s Health, Find Plan B One-Step in the Aisle and Pick It Up
Yourself, http://planbonestep.com/pharmacylocator.aspx (last visited Aug. 30, 2013) ...................................................................................... 34 RULES Federal Rule of Civil Procedure 56(a) ......................................................................... 23 REGULATIONS 26 C.F.R. § 1.6033-2..................................................................................................... 43 29 C.F.R. § 2590.715-2713A .................................................................................. 46, 47 45 C.F.R. § 147.130 ........................................................................................................ 6 45 C.F.R. § 147.131 ...................................................................................... 9, 10, 11, 30 75 Fed. Reg. 41726 (July 19, 2010) ........................................................................... 4, 5 76 Fed. Reg. 46621 (Aug. 3, 2011)................................................................................. 6 77 Fed. Reg. 8725 (Feb. 15, 2012) ............................................................................. 7, 8 77 Fed. Reg. 16501 (March 21, 2012)............................................................................ 8 78 Fed. Reg. 8456 (Feb. 6, 2013) ............................................................................... 8, 9 78 Fed. Reg. 39870 (July 2, 2013) .................................................................................¶
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INTRODUCTION AND SUMMARY OF ARGUMENT The central question presented by this case is straightforward: Can the government force conscientious objectors to aid and abet what they believe to be the taking of innocent life? No one disputes in this case that the Plaintiff Universities sincerely believe that they must not abet abortions. And no one disputes that the Mandate makes Plaintiffs, as employers, part of the mechanism by which employees or their dependents are able to obtain coverage for the drugs and devices Plaintiffs object to. The disagreement in this case concerns whether the Defendants’ “accommodation” has solved the moral problem of complicity. It has not. The government will argue that its “accommodation” puts enough moral distance between Plaintiffs and the provision of the objectionable drugs and devices to their employees. But this argument fails for several reasons. First, the government cannot tell Plaintiffs and others what they believe—Plaintiffs, not the government are the arbiters of whether a particular set of actions would be immoral in their own eyes. Second, the Plaintiffs are inescapably part of the mechanism for obtaining the drugs and devices. Without Plaintiffs’ acting to trigger the accommodation mechanism, their employees and dependents would not receive the abortion-causing items. Third, the government cannot command Plaintiffs and other religious organizations to outsource their consciences to third party administrators or others; as the Supreme Court stated just last Term, government cannot force religious
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groups to express their beliefs “only at the price of evident hypocrisy.” See Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 133 S. Ct. 2321, 2331 (2013).
Indeed, the moral dilemma confronted by the Universities is not unlike the one faced by a person who is solicited to commit a crime, or invited to join a conspiracy
or a fraud. There is a moment of decision where the person must decide whether to aid and abet the existing criminals and thus become a criminal herself, or whether
to abstain. The law makes individuals culpable for their decisions to participate as accomplices or co-conspirators. Similarly, the moral law that ETBU and HBU follow
would make them culpable for a decision to act as the government’s accomplice or co-conspirator in committing what they believe to be the taking of innocent human life. The government should not be able to tell Plaintiffs not to use their own
standard of culpability, especially when federal standards of culpability are so similar.1
Perhaps the worst part of this entire situation is that the government could have avoided this problem altogether. If, for example, Congress or the Defendant
agencies had structured the law and regulations in a way that had the government
1 Judge Gorsuch explained the problem well in Hobby Lobby Stores, Inc. v. Sebelius, --- F.3d. ---, No. 12-6294, 2013 WL 3216103 (June 27, 2013) (en banc):
All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others. For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability. The [plaintiffs] are among those who seek guidance from their faith on these questions. Understanding that is the key to understanding this case. Id. at *31 (Gorsuch, J., concurring).
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or the private market deliver the objected-to drugs and devices instead of employers, as under Title X, 42 U.S.C. § 300 et seq., then there would also have been no problem of moral complicity.
But because the government chose instead to make employers, including Plaintiffs, the means to its chosen end, the issue of conscientious objection is squarely presented.
That conscientious objection is protected under the Religious Freedom Restoration Act (RFRA), the Free Exercise Clause, the Establishment Clause, and the Free Speech Clause. The Mandate creates a substantial burden on Plaintiffs’ religious exercise of refusing to assist in abortion, triggering strict scrutiny under RFRA. The Mandate is neither neutral nor generally applicable, triggering strict scrutiny under the Free Exercise Clause. The Mandate discriminates among religions to the detriment of Plaintiffs, triggering strict scrutiny under the Establishment Clause. And the Mandate compels Plaintiffs to speak when they don’t want to speak and be silent when they don’t want to be silent, triggering strict scrutiny under the Free Speech Clause.
As several Courts of Appeals have already held, the Mandate cannot be justified under strict scrutiny. The government invokes no compelling interest to justify it, the Mandate does not actually further the interests the government has identified, and it is not the means least restrictive of Plaintiffs’ constitutional and RFRA rights.
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Because there is no dispute of material fact regarding the foregoing claims, summary judgment should be entered for Plaintiffs on those claims. And because the Mandate will soon coerce Plaintiffs absent an order from this Court, a preliminary injunction should issue protecting Plaintiffs from the Mandate during the pendency of litigation in this Court and any subsequent appeal.
STATEMENT OF FACTS SUPPORTING SUMMARY JUDGMENT AND INJUNCTIVE RELIEF I. The HHS Mandate A. Promulgation of the Mandate and the “Religious Employer” Exemption Signed into law by President Obama in March of 2010, the Patient Protection and Affordable Care Act, Pub. L. 111-148 (March 23, 2010), and the Health Care and Education Reconciliation Act, Pub. L. 111-152 (March 30, 2010) (collectively, “ACA”) instituted a number of significant changes to our nation’s health care and health insurance systems. Among other things, the ACA mandates that any “group health plan” or “health insurance issuer offering group or individual health insurance coverage” must provide coverage for certain “preventive care and screening” services without “any cost sharing.” 42 U.S.C. § 300gg-13(a). The ACA does not specify what “preventive care and screenings” include, but rather leaves that task to the Health Resources and Services Administration (HRSA), a division of Defendant Department of Health and Human Services (HHS).2 42 U.S.C. § 300gg-13(a)(4); 75 Fed. Reg. 41726, 41728 (July 19, 2010).
2 Unless context indicates otherwise, all references to “HHS” or “Defendants” also include Defendants Department of Labor and Department of Treasury.
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On July 19, 2010, HHS published an interim final rule under the Affordable Care Act, (First Interim Final Rule). 75 Fed. Reg. 41726 (2010). The First Interim Final Rule, enacted without prior notice of rulemaking or public comment, provided that at a later date HRSA would publish guidelines specifying what would constitute preventive care. 75 Fed. Reg. at 41759. The First Interim Final Rule explained that “cost sharing” refers to “out-of-pocket” expenses for plan participants and beneficiaries, 75 Fed. Reg. 41730, and acknowledged that those expenses would be “covered by group health plans and issuers” which would, in turn, result in “higher average premiums for all enrollees[,]” id., and “an increase in premiums,” id. at 41737. In other words, the prohibition on cost sharing was a way “to distribute the cost of preventive services more equitably across the broad insured population.” Id.
On August 1, 2011, HRSA issued guidelines stating that preventive services would include “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” Health Resources and Services Administration, Women’s Preventive Services: Required Health Plan Coverage Guidelines (Aug. 1, 2011), Ex. C-1. FDA-approved contraceptive methods include “emergency contraception” such as Plan B (commonly known as the “morning-after pill”) and ulipristal (also known as “Ella” or the “week-after pill”). FDA Birth Control Guide (August 2012), Ex. C-2 at 9. The FDA birth control guide specifically notes that Plan
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B and Ella (and certain intrauterine devices (IUDs)) may work by preventing “attachment (implantation)” of a fertilized egg in a woman’s uterus. Id.
On the same day that HRSA issued these guidelines, HHS promulgated an amended interim final rule (Second Interim Final Rule) which reiterated the mandate and added a narrow exemption for “religious employer[s].” 76 Fed. Reg. 46621 (published Aug. 3, 2011); 45 C.F.R. § 147.130. The Second Interim Final Rule granted HRSA “discretion to exempt certain religious employers from the Guidelines where contraceptive services are concerned.” 76 Fed. Reg. at 46623 (emphasis added). A “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) “primarily serves persons who share its religious tenets”; 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. The fourth of these requirements refers to “churches, their integrated auxiliaries, and conventions or associations of churches” and the “exclusively religious activities of any religious order.” 26 U.S.C. § 6033. Like the First Interim Final Rule, the Second Interim Final Rule went into effect immediately, without prior notice or comment. 76 Fed. Reg. 46621.
B. The Safe Harbor Controversy ensued over the mandate and the religious employer exemption, and hundreds of thousands of public comments were filed in response to the mandate and the religious employer exemption. See 77 Fed. Reg. 8725, 8726 (Feb.
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15, 2012).3 In response, Secretary Sebelius announced in January 2012 that certain non-exempt religious objectors would be granted an “additional year” before the mandate was enforced against them, in order to “allow these organizations more time and flexibility to adapt to this new rule.” January 20, 2012 Statement of HHS Secretary Kathleen Sebelius, Ex. C-3. Accordingly, on February 10, 2012, HHS issued a bulletin describing a “Temporary Enforcement Safe Harbor” from the mandate. Department of Health and Human Services, Guidance on the Temporary Enforcement Safe Harbor for Certain Employers (updated June 28, 2013), Ex. C-4. The bulletin advised that Defendants would not enforce the mandate for one additional year against certain non-profit organizations who have religious objections to covering the mandated services but who did not qualify for the religious employer exemption. Ex. C-4 at 3. Under the safe harbor, the mandate would not apply until an organization’s first insurance plan year that began after August 1, 2013 (as opposed to August 2012 under the Second Interim Final Rule). Ex. C-4 at 3. The safe harbor is available to non-profit organizations that self-certify that they have not offered the offending coverage “from February 10, 2012 onward” and that provide notice to plan participants. Ex. C-4 at 4. The safe harbor did not alter the religious employer exemption, however. On that same afternoon,
3 Additionally, in 2011, religious organizations that did not qualify for the exemption began filing lawsuits challenging the interim final rules. See, e.g., Belmont Abbey College v. Sebelius, No. 11-1989 (D.D.C. Nov. 10, 2011), dismissed as moot, Dkt. 41 (Aug. 19, 2013) (first lawsuit filed). To date, 30 lawsuits have been filed by nonprofit religious organizations and 37 lawsuits have been filed by business owners. Their status is kept reasonably updated by Plaintiffs’ counsel at HHS Mandate Information Central, www.becketfund.org/hhsinformationcentral.
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Defendants issued regulations adopting that exemption “as a final rule without change.” 77 Fed. Reg. 8725, 8729 (published Feb. 15, 2012).
C. The Advance Notice of Proposed Rulemaking On March 16, 2012, Defendants Announced an “Advance Notice of Proposed Rulemaking” (ANPRM). 77 Fed. Reg. 16501, 16503 (published March 21, 2012). The ANPRM announced the Defendants’ intention to finalize an accommodation by the end of the safe harbor period. 77 Fed. Reg. at 16503. The ANPRM did not announce any intention to alter the mandate. Id. In vague terms, the ANPRM proposed that “health insurance issuers” for objecting religious employers could be required to “assume the responsibility for the provision of contraceptive coverage without cost sharing.” Id. For self-insured plans, the ANPRM suggested that third party plan administrators “assume this responsibility.” Id. For the first time, the ANPRM suggested that the cost for the separate contraceptive coverage could not result in increased premiums for conscientious objectors. Id. at 16503 (“the Departments would require that, in this circumstance, there be no premium charge for the separate contraceptive coverage”). Defendants recognized “approximately 200,000 comments” submitted in response to the ANPRM, which for the most part objected to the scheme. 78 Fed. Reg. 8456, 8459 (published Feb. 6, 2013).
D. The Notice of Proposed Rulemaking On February 1, 2013, HHS issued a Notice of Proposed Rulemaking (NPRM). 78 Fed. Reg. 8456. The NPRM proposed two major changes to the then-existing regulations. 78 Fed. Reg. at 8458-59. First, it proposed revising the religious employer exemption by eliminating the requirements that religious employers have
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the purpose of inculcating religious values and primarily employ and serve persons of their own faith. Id. It did not, however, “expand the universe of employer plans that would qualify for the exemption.” Id. Second, it proposed to “accommodate” non-exempt religious organizations like the Plaintiffs by requiring those religious insurers to force their insurers and third party administrators to provide “separate . . . coverage” for the free contraceptive and abortifacient drugs and services. 78 Fed. Reg. 8463. “[O]ver 400,000 comments” were submitted in response to the NPRM. 78 Fed. Reg. 39870, 39871 (published July 2, 2013). On April 8, 2013, the same day the notice-and-comment period ended, Defendant Secretary Sebelius answered questions about the contraceptive and abortifacient services requirement in a presentation at Harvard University.4 In response to a question, she explained that “religious entities will be providing coverage to their employees starting August 1st.” Id. at 51:30-52:00.
E. The Final Form of the Mandate On June 28, 2013, Defendants issued a final rule (the “Mandate”). Under the Mandate, the “religious employer” exemption remains limited to institutional churches and religious orders “organized and operate[d]” as nonprofit entities “referred to in section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue] Code.” 78 Fed. Reg. at 39874(a). The Mandate creates a separate “accommodation” for certain non-exempt religious organizations. 78 Fed. Reg. at 39874; 45 C.F.R. § 147.131(b). An organization is eligible for the accommodation if it (1) “opposes providing
4 The Forum, A Conversation with Kathleen Sebelius, U.S. Secretary of Health & Human Services (April 8, 2013) available at http://theforum.sph.harvard.edu/sites/default/files/downloads/audio/ 20130408_Sebelius_PODCAST.mp3 (last visited August 30, 2013).
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coverage for some or all of the contraceptive services required”; (2) “is organized and operates as a nonprofit entity”; (3) “holds itself out as a religious organization”; and (4) “self-certifies that it satisfies the first three criteria.” 78 Fed. Reg. at 39874; 45 C.F.R. § 147.131(b). The final rule extends the current safe harbor through the end of 2013. 78 Fed. Reg. at 39889. An eligible organization would need to execute its self-certification “prior to the beginning of the first plan year” which begins on or after January 1, 2014, and deliver it to the organization’s insurer, or, if the organization has a self-insured plan, to the plan’s third party administrator. Id. at 39875. The delivery of the self-certification would trigger the insurer’s or third party administrator’s obligation to make “separate payments for contraceptive services directly for plan participants and beneficiaries.” Id. at 39875-76; see 45 C.F.R. § 147.131(c). This obligation would continue only “for so long as the participant or beneficiary remains enrolled in the plan.” 78 Fed. Reg. 39876; see 45 C.F.R. § 147.131(c)(2)(i)(B). Insurers and third party administrators would be required to notify plan participants and beneficiaries of the contraceptive payment benefit “contemporaneous with (to the extent possible) but separate from any application materials distributed in connection with enrollment” in a group health plan. Id. at 39876; 45 C.F.R. § 147.131(d). The insurers and third party administrators are expected to provide the emergency contraceptives “in a manner consistent” with the provision of other covered services, 78 Fed. Reg. at 39876-77, and “may not impose any cost-sharing requirements (such as a copayment, coinsurance, or a deductible), or impose any premium, fee, or other charge, or any portion thereof, directly or
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indirectly, on the eligible organization.” Id. at 39896; 45 C.F.R. § 147.131(c)(2)(ii). The burden remains on the objecting religious organization to find a third party administrator who will agree to provide free access to the same contraceptive and abortifacient services the religious organization cannot provide directly. 78 Fed. Reg. at 39880 (“[T]here is no [legal] obligation for a third party administrator to enter into or remain in a contract with the eligible organization if it objects to any of these responsibilities.”).
Defendants state in the final rule that they “have evidence to support” that providing payments for contraceptive and abortifacient services will be “cost neutral for issuers.” Id. at 39877. Nevertheless, even if the payments were, over time, to become cost neutral, it is undisputed that there will be up-front costs for making the payments. Id. at 39877-78 (addressing ways insurers can cover up-front costs). The final rule suggests that issuers may ignore this fact and “set the premium for an eligible organization’s large group policy as if no payments for contraceptive services had been provided to plan participants.” Id. at 39877. Another suggestion Defendants have provided is 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.” Id. at 39878.
The Mandate requires that, even if the third party administrator consents, the religious organization—via its self-certification—must expressly designate the third party administrator as “an ERISA section 3(16) plan administrator and claims administrator solely for the purpose of providing payments for contraceptive
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services for participants and beneficiaries.” Id. at 39879. The self-certification must specifically notify the third party administrator of its “obligations set forth in the[ ] final regulations, and will be treated as a designation of the third party administrator(s) as plan administrator and claims administrator for contraceptive benefits pursuant to section 3(16) of ERISA.” Id. at 39879.
Employers with fewer than fifty employees are exempt from the Mandate. 26 U.S.C. § 4980H(c)(2)(A); 26 U.S.C. § 4980D(d). Nearly 34 million individuals are employed by firms with fewer than fifty employees. WhiteHouse.Gov, The Affordable Care Act Increases Choice and Saving Money for Small Business, http://www.whitehouse.gov/files/documents/health_reform_for_small_businesses.pdf (last visited Aug. 30, 2013), Ex. C-5 at 3. Also exempt from the Mandate are employers who provide “grandfathered” health care plans. 42 U.S.C. § 18011. In 2010, the government predicted that 87 million people would remain on grandfathered plans in 2013. Ex. C-6 at 4. II. East Texas Baptist University and Houston Baptist University
A. East Texas Baptist University East Texas Baptist University (ETBU) is a Christian liberal arts university located in Marshall, Texas. Declaration of Samuel W. Oliver, Ex. A ¶ 4. Founded in 1912, ETBU is affiliated with the Baptist General Convention of Texas and is in cooperation with the national Southern Baptist Convention. Ex. A ¶¶ 4, 11. ETBU’s motto is “A World of Opportunity in a Community of Faith.” Ex. A ¶ 6. Its central purpose is to “prepare students to accept the obligations and opportunities to serve humanity and the Kingdom of God.” Ex. A ¶ 5. Today, ETBU is a thriving academic
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community, serving over 1,250 students in thirty undergraduate degree programs and four graduate degree programs. Ex. A ¶ 7.
In keeping with its Christian identity, ETBU employs “administrators, academic officers, faculty, and staff who have a personal relationship with Christ, who are familiar with truth as revealed in the Bible, who live out this truth in the presence of others, [and] who can create an environment where Christ is lived out in the life of the individual” in both “their initial and continuing employment[.]” Ex. A ¶ 13. ETBU is governed by a 36-member Board of Trustees, all of whom must be active members of Baptist churches. Ex. A ¶ 10.
ETBU holds and follows traditional Christian beliefs about the sanctity of life. Ex. A ¶ 16. ETBU believes that Scripture calls Christians to uphold the God-given worth of human beings, as the unique image-bearers of God, from conception to death. Ex. A ¶ 16-17. ETBU affirms that “[w]e should speak on behalf of the unborn and contend for the sanctity of all human life from conception to natural death.” Ex. A ¶ 18. ETBU believes and teaches that abortion ends a human life and is a sin. Ex. A ¶ 19.
Consequently, it is a violation of ETBU’s teachings and religious beliefs to deliberately provide insurance coverage for, fund, sponsor, underwrite, or otherwise facilitate access to abortion-inducing drugs, abortion procedures, and related services. Ex. A ¶ 20. Specifically, ETBU has a sincere religious objection to covering the emergency contraceptive drugs popularly known as Plan B, Ella, and certain abortifacient IUDs. Ex. A ¶ 21. ETBU believes that those drugs could prevent a
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human embryo—which it understands to include a fertilized egg before it implants in the uterus—from implanting in the wall of the uterus, causing the death of the embryo. Ex. A ¶ 21. It is similarly a violation of ETBU’s religious beliefs to deliberately provide health insurance that would facilitate access to abortioncausing drugs, abortion procedures, and related services, even if those items were paid for by an insurer or a third-party administrator and not by ETBU. Ex. A ¶ 24.
It is also part of ETBU’s religious convictions to provide for the well-being and care of the employees who further its mission and make up an integral part of its community. Ex. A ¶ 27. The overwhelming majority of ETBU’s 227 full time employees and their families rely upon ETBU’s health benefits. Ex. A ¶ 28. It is important to ETBU that its insurance plan is consistent with its religious beliefs. Ex. A ¶ 20. Consistent with these religious beliefs, ETBU’s employee health insurance plans do not cover abortions or emergency contraception such as Plan B, Ella, or abortion-causing IUDs. Ex. A ¶ 20-21. ETBU cannot, in good conscience, participate in the Mandate. Ex. A ¶ 38. ETBU is self-insured, and while it was initially unclear whether its plan was grandfathered, its current plan is not grandfathered. Ex. A ¶ 33.
The mandate will take effect against ETBU on January 1, 2014. Ex. A ¶ 66. On that date, it will face an unconscionable choice: either violate the law, or violate its faith. Ex. A ¶ 66. If ETBU violates the law by ceasing to offer employee health insurance, it will face the prospect of fines of $2000 per employee per year, or roughly $454,000 per year, every year. Ex. A ¶ 67; 26 U.S.C. § 4980H. Although the
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government has recently announced that it will postpone implementing the annual fine of $2000 per employee for organizations that drop their insurance altogether, the postponement is only for one year, until 2015. Mark J. Mazur, Assistant Secretary for Tax Policy at the U.S. Department of the Treasury, Continuing to Implement the ACA in a Careful, Thoughtful Manner (July 2, 2013), Ex. C-7. Furthermore, if ETBU violates the law by offering insurance that fails to comply with the Mandate, it could also incur penalties of $100 per day “for each individual to whom such failure relates,” or up to $8 million per year for ETBU’s 227 full-time employees. Ex. A ¶ 69; 26 U.S.C. § 4980D; 29 U.S.C. § 1132. Terminating its health Plan would be a serious hardship for ETBU’s faculty and staff. Ex. A ¶ 35. Terminating its health plan would result in serious competitive disadvantages for ETBU in recruiting and retaining faculty and staff. Ex. A ¶ 36. ETBU could also face regulatory action and lawsuits under ERISA. Ex. A ¶ 71.
ETBU has raised its objections to the Mandate with Congress. Ex. A ¶ 41. On February 16, 2012, ETBU’s president testified before the House Committee on Oversight and Government Reform that ETBU objected to the Mandate. Ex. A ¶ 41. ETBU submitted public comments on the ANPRM and the NPRM objecting to the scheme they proposed. Ex. A ¶ 42-44.
B. Houston Baptist University Houston Baptist University (HBU) is a Christian liberal arts university located in Houston, Texas. Declaration of Dr. Robert B. Sloan, Ex. B ¶ 4. Founded in 1960 by the Baptist General Convention of Texas, HBU is also connected with the national Southern Baptist Convention. Ex. B ¶¶ 4-5. HBU’s mission is “to provide a
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learning experience that instills in students a passion for academic, spiritual, and professional excellence as a result of [its] central confession, ‘Jesus Christ is Lord.’” Ex. B ¶ 6. Today, HBU is a thriving academic community, serving over 2,800 students in 33 undergraduate degree programs and 15 graduate degree programs. Ex. B ¶ 7.
In keeping with its Christian identity, HBU’s bylaws have required that “all those who become associated with [HBU] as a trustee, officer, member of the faculty or of the staff, and who perform work connected with the educational activities of the University, must believe in the divine inspiration of the Bible, both the Old Testament and New Testament, that man was directly created by God, the virgin birth of Jesus Christ, our Lord and Savior, as the Son of God, that He died for the sins of all men and thereafter arose from the grave, that by repentance and the acceptance of and belief in Him, by the grace of God, the individual is saved from eternal damnation and receives eternal life in the presence of God . . . .” Ex. B ¶ 8. HBU’s mission as an academic community is not merely the transmission of information; its goal is to “express Christ’s Lordship as a function of its academic mission.” Ex. B ¶ 10.
HBU holds and follows traditional Christian beliefs about the sanctity of life. Ex. B ¶ 11-12. HBU believes that Scripture calls Christians to uphold the God-given worth of human beings, as the unique image-bearers of God, from conception to death. Ex. B ¶ 11. HBU affirms that “[w]e should speak on behalf of the unborn and contend for the sanctity of all human life from conception to natural death.” Ex. B
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¶ 13. HBU believes and teaches that abortion ends a human life and is a sin. Ex. B ¶ 14. HBU expects all of its faculty to affirm and teach these beliefs. Ex. B ¶ 14. HBU’s beliefs about the sanctity of life are also reflected in its Student Code of Conduct, which affirms that Houston Baptist “embraces a biblical position which honors the sanctity of life,” and “cannot support actions which encourage or result in the termination of human life through suicide, euthanasia, or abortion-ondemand.” Ex. B ¶ 15. As a result, when students face a crisis pregnancy, “the campus community is prepared to stand with both the father and mother of the unborn child” and is “committed to assisting the student(s) with” alternatives to abortion. Ex. B ¶ 15.
Consequently, it is a violation of HBU’s teachings and religious beliefs to deliberately provide insurance coverage for, fund, sponsor, underwrite, or otherwise facilitate access to abortion-inducing drugs, abortion procedures, and related services. Ex. B ¶ 16. Specifically, HBU has a sincere religious objection to covering the emergency contraceptive drugs popularly known as Plan B and Ella. Ex. B ¶ 19. HBU believes that those drugs could prevent a human embryo—which it understands to include a fertilized egg before it implants in the uterus—from implanting in the wall of the uterus, causing the death of the embryo. Ex. B ¶ 17. It is similarly a violation of HBU’s beliefs to deliberately provide health insurance that would facilitate access to abortion-causing drugs, abortion procedures, and related services, even if those items were paid for by an insurer or a third-party administrator and not by HBU. Ex. B ¶ 20.
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It is also a part of HBU’s religious convictions to provide for the well-being and care of the employees who further its mission and make up an integral part of its community. Ex. B ¶ 23. The overwhelming majority of HBU’s 355 full time employees and their families rely upon HBU’s health benefits. Ex. B ¶ 24. It is important to HBU that its insurance plan is consistent with its religious beliefs. Ex. B ¶ 22. Consistent with these religious beliefs, HBU’s employee health insurance plans do not cover abortions or emergency contraception such as Plan B, Ella, or abortion-causing IUDs. Ex. B ¶ 22. HBU cannot, in good conscience, participate in the Mandate scheme. Ex. B ¶ 36.
HBU’s health benefits plan (plan) is provided through GuideStone Financial Resources of the Southern Baptist Convention (GuideStone). Ex. B ¶ 25. GuideStone’s mission is “to assist churches, denominational entities, and other evangelical ministry organizations by making available” a variety of retirement, investment, and insurance programs. Ex. B ¶ 26. GuideStone is a church health plan, which is a “self-funded, multiple employer health plan[] operated by not-forprofit church benefit boards” and given special status by the IRS. Ex. B ¶ 27. Although GuideStone provides preventive services—including most FDA-approved contraceptives—without cost sharing, GuideStone “does not provide coverage for abortions and abortion-causing drugs, as this violates [its] Biblical convictions on the sanctity of life.” Ex. B ¶ 28. HBU’s plan is not grandfathered. Ex. B ¶ 31.
The Mandate will take effect against HBU on January 1, 2014. Ex. B ¶ 66. On that date, it will face an unconscionable choice: either violate the law, or violate its
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faith. Ex. B ¶ 66. If HBU violates the law by ceasing to offer employee health insurance, it will face the prospect of fines of $2000 per employee per year, or roughly $710,000 per year, every year. Ex. B ¶ 67; 26 U.S.C. § 4980H. Although the government has recently announced that it will postpone implementing the annual fine of $2000 per employee for organizations that drop their insurance altogether, the postponement is only for one year, until 2015. Ex. B ¶ 68; Mark J. Mazur, Assistant Secretary for Tax Policy at the U.S. Department of the Treasury, Continuing to Implement the ACA in a Careful, Thoughtful Manner (July 2, 2013), Ex. C-7. If HBU violates the law by offering insurance that fails to comply with the Mandate, it could also incur penalties of $100 per day “for each individual to whom such failure relates,” or up to nearly $13 million annually. Ex. B ¶ 69. HBU could also face regulatory action and lawsuits under ERISA. Ex. B ¶ 71. III. The Mandate’s Impact on ETBU and HBU
Both ETBU and HBU will be subject to the Mandate on January 1, 2014. Ex. A ¶ 66; Ex. B ¶ 66. Although the Universities have no objection to including free coverage for non-abortifacient contraceptive services, their religious convictions forbid them from including free coverage for abortifacient services in their employee healthcare plans. Ex. A ¶ 75; Ex. B ¶ 75. The Plaintiffs cannot take advantage of the religious employer exemption. Ex. A ¶ 39; Ex. B ¶ 39. In order to comply with the Mandate under the “accommodation,” the Plaintiffs would need to execute their self-certifications prior to January 1, 2014. Ex. A ¶ 47; Ex. B ¶ 45. The Mandate does not provide any guidance for “eligible organizations” that are insured through church health plans like GuideStone. Ex. B ¶ 46. GuideStone also has a religious
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objection to providing abortion-causing drugs. Ex. B ¶ 28. Neither GuideStone nor ETBU’s third party administrator has a legal obligation to cooperate in providing the Plaintiffs with the accommodation. Ex. A ¶ 50; Ex. B ¶ 52; 78 Fed. Reg. at 39880. The Plaintiffs’ beliefs preclude them from soliciting, contracting with, or designating a third party to provide these drugs and services. Ex. A ¶ 53; Ex. B ¶ 50.
Expressly designating a third party administrator as “an ERISA section 3(16) plan administrator” and notifying the third party administrator of its “obligations set forth in the[] final regulations” would make the Plaintiffs morally complicit in providing the drugs and services. Ex. A ¶¶ 54-56; Ex. B ¶¶ 54-56; 78 Fed. Reg. 39879.
If they were to violate their beliefs and designate a new insurer or designate a third party administrator for the distinct purpose of facilitating access to free abortifacients, the Plaintiffs would have to identify their employees to that entity. Ex. A ¶ 58; Ex. B ¶ 58. Both Universities would have to coordinate with their designees regarding when they added or removed employees and beneficiaries from their healthcare plan and, as a result, from the contraceptive and abortifacient services payment scheme. Ex. A ¶ 60; Ex. B ¶ 60; 78 Fed. Reg. 39876. Both Universities would be required to coordinate notices with their designees. Ex. A ¶ 62; B ¶ 62; 78 Fed. Reg. 39876.
Thus, the burden remains on the Plaintiffs to find an insurer or third party administrator that will agree to provide free access to the abortifacient drugs and
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devices that Plaintiffs object to. Ex. A ¶ 52; Ex. B ¶ 59. There is no way to ensure that the cost of administering the abortifacient services would not be passed down to the Plaintiffs through increased premiums or fees. Ex. A ¶ 65; Ex. B ¶ 65.
The Mandate burdens the Plaintiffs’ employee recruitment and retention efforts by creating uncertainty as to whether they will be able to offer health benefits beyond 2013. Ex. A ¶ 72-73; Ex. B ¶ 72-73. The Mandate forces the Plaintiffs to choose between, on the one hand, violating their religious beliefs, and, on the other hand, incurring substantial fines and terminating their employee benefits. Ex. A ¶ 74; Ex. B ¶ 74.
The Plaintiffs must begin planning now for the 2014 insurance plan year. Ex. A ¶ 77; Ex. B ¶ 77. The Plaintiffs need immediate relief from the Mandate in order to arrange for and continue providing employee health insurance. Ex. A ¶ 81; Ex. B ¶ 81.
STATEMENT OF THE NATURE AND STAGE OF THE PROCEEDING Plaintiffs filed an original complaint in this matter on October 9, 2012. Dkt. 1. On December 20, 2012, this Court held a status conference and stayed the case pending the promulgation of new regulations. Dkt. 25. Defendants issued the new regulations on June 28, 2013, 78 Fed. Reg. 39870-01 (published July 2, 2013), and this Court lifted the stay on August 1, 2013. Dkt. 57. Following a status conference on August 2, 2013, this Court ordered inter alia that Plaintiffs file their motion for partial summary judgment and preliminary injunction on August 30, 2013. Dkt. 60. On August 6, 2013, Plaintiffs filed their first amended complaint addressing the
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new regulations. Dkt. 61. On August 30, 2013, the Court granted permissive intervention to Plaintiff-Intervenor Westminster Theological Seminary. Dkt. 68. Plaintiffs now timely file their motion for partial summary judgment and a preliminary injunction.
STATEMENT OF THE ISSUES AND APPLICABLE STANDARDS OF REVIEW I. Preliminary Injunction Plaintiffs seek a preliminary injunction barring enforcement of the Mandate against them during the pendency of proceedings in this Court and any subsequent appeal. To obtain a preliminary injunction, a plaintiff must establish: “(1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction is not issued, (3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and (4) that the grant of an injunction will not disserve the public interest.” Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011); Nichols v. Alcatel USA, Inc., 532 F.3d 364, 372 (5th Cir. 2008). See also Blanco v. Select Specialty Hosp. Houston, L.P., CIV.A. H-131591, 2013 WL 2408189 (S.D. Tex. May 31, 2013). II. Summary Judgment Plaintiffs request that summary judgment be entered in their favor on some of their claims brought under RFRA, the Free Exercise Clause, the Establishment Clause, and the Free Speech Clause.
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Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute as to a material fact exists when, after considering the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, a court determines that the evidence is such that a reasonable jury could return a verdict for the party opposing the motion. LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 387 (5th Cir. 2007) (citations omitted). A court considering a motion for summary judgment must consider all facts and evidence in the light most favorable to the nonmoving party. Id. (citing United Fire & Cas. Co. v. Hixson Bros., Inc., 453 F.3d 283, 285 (5th Cir.2006)).
ARGUMENT I. Plaintiffs are entitled to summary judgment on their RFRA,
Free Exercise, Establishment Clause, and Free Speech claims. The Mandate violates federal constitutional and statutory law in four independent ways.5 Most obviously, it is a flagrant violation of the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb et. seq.. It also violates the Free Exercise, Establishment, and Free Speech Clauses of the First Amendment to the U.S. Constitution. Each violation subjects the Mandate to strict scrutiny, a test it cannot possibly survive. Any one violation is sufficient to invalidate the Mandate and entitle the Plaintiffs to summary judgment.
5 Plaintiffs have raised other claims in addition to these four, but do not currently seek a preliminary injunction or summary judgment on the basis of those other claims.
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A. The Mandate violates the Religious Freedom Restoration Act. Under RFRA, the federal government “may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1 (b). RFRA thus restored strict scrutiny to religious exercise claims. Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424, 431 (2006); see also 42 U.S.C. § 2000bb (b)(1) (RFRA “restore[s] the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972)).”6 A plaintiff makes a prima facie case under RFRA by showing the government substantially burdens its sincere religious exercise. O Centro, 546 U.S. at 428. The burden then shifts to the government to show that “the compelling interest test is satisfied through application of the challenged law ‘to the person’— the particular claimant whose sincere exercise of religion is being substantially burdened.” Id. at 430-31 (quoting 42 U.S.C. § 2000bb-1(b)).7
6 Although RFRA is unconstitutional as applied to States, it continues to apply “to all Federal law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after November 16, 1993.” 42 U.S.C. § 2000bb-3(a). Some states have enacted their own individual RFRAs. The Fifth Circuit has previously applied Texas’ RFRA. The analysis for that statute is the same as the federal RFRA. See, e.g., Merced v. Kasson, 577 F.3d 578, 587 (5th Cir. 2009). 7 These burdens are the same at the preliminary injunction stage as at trial. O Centro, 546 U.S. at 429-30 (citing Ashcroft v. ACLU, 542 U.S. 656, 666 (2004)).
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1. Plaintiffs’ abstention from facilitating access to abortioncausing drugs and devices is sincere religious exercise.
RFRA broadly defines “religious exercise” 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), as amended by 42 U.S.C. § 2000cc-5(7)(A); see also Adkins v. Kaspar, 393 F.3d 559, 570 (5th Cir. 2004).
Plaintiffs have demonstrated their sincere commitment to the Christian faith, and specifically to Christian teachings on the sanctity of life. Ex. A ¶ 4-5, 10-15, 1620; Ex. B ¶ 4-5, 8-10, 11-15. Plaintiffs cannot, in good conscience, support activities or products they believe to be immoral. Ex. A ¶ 20-26, 16-22. The Mandate requires Plaintiffs to actively participate in a scheme to provide their employees with drugs and devices that risk destroying human life. Their religious beliefs forbid them from participating in that scheme. Under the accommodation, Plaintiffs’ self-certification sets in motion a chain of events that results in their employees receiving free abortifacients through the insurance plans that Plaintiffs provide and pay for. 78 Fed. Reg. at 39875-77. It violates Plaintiffs’ Christian faith to act as a conduit for these drugs and devices. Ex. A ¶ 20-26; Ex. B ¶ 16-22. Plaintiffs have always sought to avoid facilitating access to abortifacients through their insurance plans, and the Mandate forces them to abandon this practice. Ex. A ¶ 26, 31; Ex. B ¶ 22, 29. Abstaining for religious reasons from facilitating evil easily qualifies as “religious exercise,” just as much as refusing to manufacture items that will later be used for the destruction of human life in a war, see Thomas v. Review Bd., 450 U.S. 707 (1981), abstaining from work on certain days, see Sherbert, 374 U.S. 398, or
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providing alternative education for children, see Yoder, 406 U.S. 205. See also 42 U.S.C. § 2000bb (b)(1) (incorporating Sherbert and Yoder in RFRA).
2. The Mandate imposes a substantial burden of enormous fines on Plaintiffs’ religious exercise of abstention.
Once the sincerity of the specific religious exercise at issue is determined, the Court must answer the question of whether the burden is substantial. This is an objective test. It does not matter what the belief is that is being violated, what matters is the objectively-measured burden imposed by the government upon the plaintiff.8 In Hobby Lobby v. Sebelius, the en banc Tenth Circuit confirmed that the existence of a substantial burden does not turn on whether the government coercion “somehow depends on the independent actions of third parties.” Hobby Lobby Stores, Inc. v. Sebelius, --- F.3d ---, No. 12-6294, 2013 WL 3216103, at *17 (10th Cir. June 27, 2013) (en banc). In that case, the government argued that the burden on Hobby Lobby to comply with the same Mandate at issue here was too attenuated because it was the employees, not Hobby Lobby itself, that would have access to the problematic drugs and devices. The Tenth Circuit explained that the government’s argument mistakenly transformed the objective substantial burden test into a subjective test. The government would have wrongly required a subjective review of the Hobby Lobby plaintiffs’ belief that delved into “the theological merit of the belief
8 One way to think about the burden analysis is whether the burden would be considered “substantial” when imposed on any activity, religious or not. For example, if the government imposed the burdens here—massive fines—on for-profit corporations engaged in political speech, those burdens would easily be considered “substantial.” Cf. Citizens United v. Federal Election Comm’n, 558 U.S. 310, 336-37 (2010) (describing unconstitutional restrictions on speech such as “imposing a burden by impounding proceeds on receipts or royalties”).
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in question.” Id. Instead, the Tenth Circuit squarely held that the controlling consideration was the intensity of the coercion applied by the government to act contrary to those beliefs. Id.; see also A.A. ex rel. Betenbaugh v. Needville Indep. Sch. Dist., 611 F.3d 248, 264 (5th Cir. 2010) (“The focus of the inquiry is on the degree to which a person’s religious conduct is curtailed and the resulting impact on his religious expression, as measured . . . from the person’s perspective, not from the government’s.”) (quotations omitted).
To explain Plaintiffs’ quandary another way, if the accommodation were in furtherance of a crime rather than access to abortifacients, Plaintiffs would be subject to liability for conspiracy and accomplice liability under, for example, 18 U.S.C. § 371 (conspirator liable for “any act to effect the object of the conspiracy”) or 21 U.S.C. § 846 (liability for “[a]ny person who attempts or conspires to commit any offense”). Plaintiffs’ understanding of moral culpability should be given at least as much deference as that of culpability in federal criminal law. Of course the Court need not agree with Plaintiffs that abortion constitutes taking innocent human life in order to defer to their understanding of moral culpability. But Defendants cannot—without hypocrisy—claim that Plaintiffs’ understanding of their own moral complicity is wrong when they frequently use a similar standard in conspiracy and accomplice liability prosecutions.
In the Fifth Circuit, a government action substantially burdens a religious belief “when it either (1) influences the adherent to act in a way that violates his religious beliefs, or (2) forces the adherent to choose between, on the one hand, enjoying some
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generally available, non-trivial benefit, and, on the other hand, following his religious beliefs.” Moussazadeh v. Tex. Dep’t of Criminal Justice, 703 F.3d 781, 793 (5th Cir. 2013) (citation omitted). The Mandate easily qualifies as a substantial burden under both prongs of that test. As to the first prong, the Mandate compels Plaintiffs to participate in a scheme that they believe is immoral. Ex. A ¶ 20-26; Ex. B ¶ 16-22. By paying for the insurance and communicating with an outside party through the self-certification, Plaintiffs facilitate the use of emergency contraceptives. See Ex. A ¶ 53, 57; Ex. B ¶ 47, 48, 50, 57. This violates their sincere religious belief. Since the Plaintiffs can continue to exercise their faith only by dropping their insurance and facing enormous penalties, 26 U.S.C. §§ 4980D, 4980H; 29 U.S.C. § 1132(a), the Mandate most certainly “influences” them “to act in a way that violates [their] religious beliefs.” See Moussazadeh, 703 F.3d at 793; see also Ex. A ¶ 66-73, 82-85; Ex. B ¶ 66-73, 82-84 (discussing the impact of penalties and potential loss of health benefits). As for the second prong, the Mandate forces the Plaintiffs to forgo the “non-trivial benefit,” Moussazadeh, 703 F.3d at 793, of providing insurance to their employees that does not violate their conscience. Ex. A ¶ 72-73, 82-85; Ex. B ¶ 72-73, 82-84 (discussing the impact that the threat of losing health benefits has on the Universities’ ability to hire and retain faculty). The imposition of fines for non-compliant insurance leaves Plaintiffs with a “Hobson’s choice” between obeying their conscience and providing health insurance to their employees. Hobby Lobby, 2013 WL 3216103, at *21.
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3. The Mandate cannot satisfy strict scrutiny. The Mandate fails strict scrutiny for three separate reasons: (1) the government has neither identified an “interest of the highest order” nor has it acted as if its interests are compelling; (2) the Mandate will not further the government’s purported interests; and (3) Defendants have multiple alternative means of pursuing their ends that are less restrictive of Plaintiffs’ constitutional and civil rights than the Mandate. Any one of these reasons suffices to defeat Defendants’ affirmative defense of strict scrutiny.
a. The government has identified no compelling interest. Strict scrutiny requires “‘the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law “to the person”— the particular claimant whose sincere exercise of religion is being substantially burdened.’” Merced, 577 F.3d at 592 (quoting O Centro, 546 U.S. at 430-31).
i. Providing Plaintiffs’ employees access to the objectionable drugs and devices is not an “interest of the highest order.”
In other lawsuits, the government has identified its compelling interests in imposing the Mandate as “public health” and “gender equality.” Hobby Lobby, 2013 WL 3216103 at *23. Although these are important interests in the abstract, they do not meet the O Centro test because they are “‘broadly formulated interests justifying the general applicability of government mandates.’” Id. (quoting O Centro, 546 U.S. at 431). Cf. Betenbaugh, 611 F.3d at 268 (“invocation of general interests, standing alone, is not enough”). The government has thus far in the litigation failed to bring forward information explaining why it has a compelling interest in
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specifically ensuring insurance coverage of the mandated abortion-causing drugs and devices—Plan B, Ella, and certain IUDs—to ETBU and HBU employees, which is what it must do to meet the “to the person” standard articulated in O Centro. Since it is the government’s burden to do so, the Mandate fails strict scrutiny as a threshold matter.
ii. Defendants’ purported interest is not compelling because the government has issued numerous exemptions and because the objectionable drugs and devices are already widely available.
A purported government interest also will not qualify as compelling unless the government has consistently demonstrated that it has a critical need to pursue the interest. “‘Where government restricts only conduct protected by the First Amendment and fails to enact feasible measures to restrict other conduct producing substantial harm or alleged harm of the same sort, the interest given in justification of the restriction is not compelling.’” Merced, 577 U.S. at 594 (quoting Lukumi, 508 U.S. at 546-47).
Here, the government’s interests “cannot be compelling because the contraceptive-coverage requirement presently does not apply to tens of millions of people.” Hobby Lobby, 2013 WL 3216103 at *23. “[T]his exempted population includes those working for private employers with grandfathered plans, [and] for employers with fewer than fifty employees.” Id. In addition, some religious organizations are exempt from the Mandate altogether. See 45 C.F.R. § 147.131 (religious exemptions); 26 U.S.C. § 5000A (d)(2)(A) & (B) (exempting “health care sharing ministr[ies]”). These massive exemptions cover upwards of 120 million
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people.9 That means that the Mandate fails strict scrutiny, because “a law cannot be regarded as protecting an interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited.” Hobby Lobby, 2013 WL 3216103 at *23 (citations omitted).
b. The Mandate will not further the government’s purported interest.
The Mandate also does not further Defendants’ purported interest in expanding the availability of contraceptives (including abortifacient contraceptives) to citizens. For a strict scrutiny affirmative defense to be successful, there must be a causal link between the end in view and the means applied “to the person.” O Centro, 546 U.S. at 430. In O Centro, for example, the Court recognized that in applying strict scrutiny courts “must searchingly examine the interests that the State seeks to promote . . . and the impediment to those objectives that would flow from recognizing [the claimed exemption].” Id. at 431 (quoting Yoder, 406 U.S. at 221) (emphasis added). Moreover, the government had “to show with more particularity how its admittedly strong interest . . . would be adversely affected by granting an exemption to the Amish.” O Centro, 546 U.S. at 431 (quoting Yoder, 406 U.S. at 236) (first emphasis added). Indeed, the government “cannot rely on ‘general platitudes,’ but ‘must show by specific evidence that [the adherent’s] religious practices jeopardize its stated interests.’” Betenbaugh, 611 F.3d at 268 (quoting Merced, 577 F.3d at 592). See also City of Erie v. Pap’s A.M., 529 U.S. 277, 300 (2000) (in
9 The government expects 87 million people to be on grandfathered plans. See Ex. C-7 at 4. And “small employers,” employing nearly 34 million people, need not offer health insurance at all and can therefore avoid the Mandate. Ex. C-5 at 2.
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applying intermediate scrutiny, courts must not conflate “two distinct concepts . . . whether there is a substantial government interest and whether the regulation furthers that interest”).
Forcing ETBU and HBU to terminate their employee health insurance coverage—or face the threat of having to cease their operations altogether because they cannot sustain the crippling fines imposed—will not advance the government’s claimed purpose of expanding contraceptive insurance coverage. See Ex. A ¶ 70; Ex. B ¶ 70. Indeed, by forcing Plaintiffs to drop coverage of their employees, fewer people will have insurance coverage for contraceptives, not more.
And it is no answer for the government to speculate that employees might obtain insurance on the exchanges it has yet to set up. Aside from the fact that the eventual functioning of an exchange in Texas is at this point at least an open question, there is little reason to think that every person covered under ETBU’s and HBU’s plans would seek coverage on the exchange rather than paying the relatively small penalty under the individual mandate. See Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2595-96 (2012) (“for most Americans the amount due will be far less than the price of insurance, and, by statute, it can never be more” so “[i]t may often be a reasonable financial decision to make the payment rather than purchase insurance”). Thus, the means (the Mandate) chosen by the government to advance its purported end (expanding contraceptive coverage) does not just fail to advance that goal, but actually tends to defeat it.
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c. Defendants have numerous alternative less restrictive means of furthering their purported interest.
Even were one to assume that Defendants had identified a compelling interest and that the Mandate advanced that interest, the Mandate still fails strict scrutiny because there are other readily-available means of expanding contraception coverage that are far less restrictive of Plaintiffs’ constitutional and RFRA rights. See, e.g., Merced, 577 F.3d at 595 (“‘If a less restrictive alternative would serve the Government’s purpose, the legislature must use that alternative.’”) (quoting United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 813 (2000)). Moreover, the government must put forward “specific evidence” explaining why there is no less restrictive means of applying it “to the person”—that is, specifically to ETBU and HBU. Betenbaugh, 611 F.3d at 268; O Centro, 546 U.S. at 430.
In nationwide litigation over the Mandate, the government has failed to “advance[ ] an argument that the contraception mandate is the least restrictive means of furthering” its general interest in ensuring contraceptive access. Korte v. Sebelius, 2012 WL 6757353, at *4 (7th Cir. Dec. 28, 2012) (emphasis added); accord Grote v. Sebelius, 708 F.3d 850, 855 (7th Cir. 2013) (government “has not demonstrated that requiring religious objectors to provide cost-free contraception coverage is the least restrictive means of increasing access to contraception”).
Indeed, Defendants have a host of readily available alternatives for expanding contraceptive access that would avoid any need to conscript religious objectors. Defendants could:
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• Provide a tax credit to employees who purchase emergency contraceptives
with their own funds.
• Directly provide the drugs at issue, or directly provide insurance coverage
for them through the state and federal health exchanges.
• Empower willing actors—for instance, physicians, pharmaceutical
companies, or various interest groups—to deliver the drugs and sponsor
education about them.
• Use their own resources to inform the public that these drugs are
available in a wide array of publicly-funded venues.
This array of alternatives is real. Plan B is available over the counter to anyone,
from a leading online pharmacy for $50, and even in many college vending
machines.10 Ella can be purchased online for $40, with no need for a physician’s
visit.11 Moreover, HHS planned to spend over $300 million in 2012 to provide
10 Teva Women’s Health, Find Plan B One-Step in the Aisle and Pick It Up Yourself, http://planbonestep.com/pharmacylocator.aspx (last visited Aug. 30, 2013) (“just take it off the shelf, and pay for it at the cashier”); Drugstore.com, Plan B One Step Emergency Contraceptive, http://www.drugstore.com/plan-b-one-step-emergencycontraceptive/qxp387630?catid=183040 (last visited Aug. 30, 2013) (advertising Plan B for $49.99 with free shipping); James Eng, FDA OK with college’s Plan B contraceptive vending machine, MSN News, Jan. 29, 2013, available at http://news.msn.com/us/fda-ok-with-colleges-plan-b-contraceptive-vendingmachine?stay=1 (last visited Aug. 29, 2013) (reporting that “Plan B is available widely in colleges and universities throughout . . . the nation,” and that a Pennsylvania college that dispenses Plan B from a vending machine for $25 is “far from the first to do this”). 11 KwikMed, ella Prescribed Online Legally, http://ella-kwikmed.com/ (last visited Aug. 29, 2013) (physicians licensed to prescribe online offering free medical consultation and free next day shipping for Ella); Watson Pharmacy, Understanding How Your Patients Can Get ella, http://www.ella-rx.com/wheredoigetella.asp (last visited Aug. 29, 2013) (noting “ella is also available at Planned Parenthood clinics”).
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contraceptives directly through Title X funding.12 And the federal government, in partnership with state governments, has constructed an extensive funding network designed to increase contraceptive access, education, and use, including:
• $2.37 billion for family planning in FY 2010. • $228 million in FY 2010 for Title X program. • $294 million in state spending for family planning in FY 2010.13 The government can employ such pre-existing sources to increase contraceptive access. See Newland v. Sebelius, 881 F. Supp. 2d 1287, 1299 (D. Colo. 2012) (noting existence of “analogous programs” and concluding that government has “failed to adduce facts establishing that government provision of contraception services will necessarily entail logistical and administrative obstacles defeating the ultimate purpose of providing no-cost preventive health care coverage to women”). B. The Mandate violates the Free Exercise Clause. Laws which are not neutral or generally applicable face strict scrutiny under the Free Exercise Clause. Lukumi, 508 U.S. at 520. The Mandate is neither generally applicable nor neutral and cannot satisfy strict scrutiny.
12 See HHS Grant Announcement, 2012 Family Planning Services FOA, available at https://www.grantsolutions.gov/gs/preaward/previewPublicAnnouncement.do?id =12978 (click on Grant Announcement – View PDF Version) (last visited Aug. 29, 2013) (announcing that “[t]he President’s Budget for . . . (FY) 2012 requests approximately $327 million for the Title X Family Planning Program”). 13 Guttmacher Inst., Facts on Publicly Funded Contraceptive Services in the United States (May 2012), http://www.guttmacher.org/pubs/fb_contraceptive_serv.html (last visited Aug. 29, 2013) (citations omitted).
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1. The Mandate is not generally applicable. A regulation fails general applicability when it “creates a categorical exemption for individuals with a secular objection but not for individuals with a religious objection.” Fraternal Order of Police v. City of Newark, 170 F.3d 359, 365 (3rd Cir. 1999) (Alito, J.) (FOP). The animal slaughter ordinances in Lukumi, for example, ostensibly protected public health and prevented animal cruelty, but “fail[ed] to prohibit nonreligious conduct that endanger[ed] these interests.” 508 U.S. at 543. Because the ordinances exempted many types of animal killing—such as hunting, fishing, pest eradication, and euthanasia—the ordinances were not generally applicable. Id. at 543-44. To be sure, not every exemption dooms a regulation. The problem arises when government allows secular exemptions that undermine a regulation’s interests but disallows religious exemptions, thus making a “value judgment in favor of secular motivations, but not religious motivations.” FOP, 170 F.3d at 366. In FOP, a regulation prohibiting police officers from growing beards allowed one exemption for undercover officers and another for medical reasons. Id. Two Muslim officers sued because the regulation forbade beards for religious reasons. The Third Circuit found that, whereas the undercover-officer exemption “d[id] not undermine the Department’s interest in uniformity [of appearance],” the medical exemption did. Id. The court therefore found the policy failed general applicability. Here, the Mandate goes far beyond the exemption scheme in FOP. The Mandate allows massive categorical exemptions for secular conduct that undermine the Mandate’s purposes. Most notably, over 87 million Americans are covered under
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“grandfathered” plans that are indefinitely excused, not only from complying with the Mandate, but from covering any of the mandated preventive services. Additionally, 34 million more Americans are employed by small businesses which may avoid the Mandate. Ex. C-5 at 2; see 26 U.S.C. § 4980H(c)(2). While these secular exemptions severely undermine the Mandate’s interest in increasing insurance coverage for the whole range of women’s preventive services, HBU and ETBU get no exemption even from the narrow slice of the Mandate to which they object for religious reasons. This is exactly the kind of “value judgment in favor of secular motivations, but not religious motivations” that fails general applicability and triggers strict scrutiny. FOP, 170 F.3d at 366.
2. The Mandate is not neutral. In addition to failing the requirement of general applicability, the Mandate also fails the requirement of neutrality for three reasons: (1) it produces differential treatment among religions; (2) it accomplishes a “religious gerrymander”; and (3) it favors secular over religious values.
a. The Mandate produces differential treatment among religions.
One way to prove that a law is not neutral is to show that it produces “differential treatment of two religions.” Lukumi, 508 U.S. at 536. In Lukumi, for example, the Court said that prohibiting killing animals for one religious purpose (sacrifice) while exempting other religious killings (kosher slaughter) created “differential treatment of two religions,” which could constitute “an independent constitutional violation.” Id. Similarly, in Larson v. Valente, 456 U.S. 228, 246 n.23
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(1982), the Court struck down registration and reporting requirements that created differential treatment between “well-established churches” and “churches which are new and lacking in a constituency.”14 Cf. O Centro, 546 U.S. at 432-37 (requiring exemption under RFRA for one religion where exemption was granted for another).
Here, the Mandate establishes three tiers of religious objectors: favored “religious employers” (who are exempt), less-favored non-profit religious objectors (who are forced to facilitate access to abortion-causing drugs), and disfavored forprofit religious objectors (who are forced to facilitate and pay for access). See 78 Fed. Reg. at 39874-75; Lukumi, 508 U.S. at 533 (“[T]he minimum requirement of neutrality is that a law not discriminate on its face.”).
The government cannot rank in different tiers the rights of people with identical religious objections. See Colo. Christian Univ. v. Weaver, 534 F.3d 1245, 1257 (10th Cir. 2008) (“[W]hen the state passes laws that facially regulate religious issues, it must treat individual religions and religious institutions without discrimination or preference.”) (quotations omitted); see also Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, 309 F.3d 144, 167 (3d Cir. 2002) (law non-neutral where the government “granted exemptions from the ordinance’s unyielding language for various secular and religious” groups, but rejected exemption for plaintiffs).
14 Although Larson was decided under the Establishment Clause, 456 U.S. at 230, it is significant for interpreting the neutrality requirement of both Religion Clauses. Colo. Christian Univ. v. Weaver, 534 F.3d 1245, 1258 (10th Cir. 2008) (“[W]hile the Establishment Clause frames much of our [religious discrimination] inquiry, the requirements of the Free Exercise Clause . . . proceed along similar lines.”). For further discussion of Larson under the Establishment Clause, see infra Argument I.C.
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b. The Mandate accomplishes a religious gerrymander.
Another way to prove that a law is not neutral is to show that “the effect of [the] law” is to accomplish a “religious gerrymander.” Lukumi, 508 U.S. at 535. In Lukumi, the Court found that a “pattern of exemptions,” id. at 537, was impermissibly used to narrow the law’s prohibitions specifically “to target petitioners and their religious practices.” Id. at 535. A similar pattern is manifest here.
Defendants have repeatedly recognized the sincerity of religious organizations’ objections to facilitating access to abortion-causing drugs and devices. See, e.g., January 20, 2012 Statement of Defendant Secretary Sebelius, Ex. C-3 (recognizing the “important concerns some have raised about religious liberty” and the need to “respect[ ] religious freedom”); see also Hobby Lobby, 2013 WL 3216103, at *20 (noting the government did not dispute religious sincerity of objections). Nevertheless, the “religious employers” exemption protects only institutional churches, their “integrated auxiliaries,” “conventions or associations of churches,” and “the exclusively religious activities of any religious order.” See 78 Fed. Reg. at 39871. Yet other religious organizations—like HBU and ETBU—are excluded from the exemption, even though they share the same religious objections. On its face, the exemption is thus narrowed to specifically target all religious organizations except institutional churches.
This facial evidence of targeting is bolstered in that the government’s proffered justification for discriminating lacks legitimacy. Defendants claim that objecting
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“[h]ouses of worship and their integrated auxiliaries . . . 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. But the same can be said for HBU and ETBU. Both limit employment to persons “who have a personal relationship with Christ, who are familiar with truth as revealed in the Bible, who live out this truth in the presence of others, [and] who can create an environment where Christ is lived out in the life of the individual.” Ex. A ¶ 13 (ETBU); see also Ex. B ¶ 8 (HBU employees “must believe in the divine inspiration of the Bible, . . . that man was directly created by God, the virgin birth of Jesus Christ” and be willing “express Christ’s Lordship as a function of [HBU’s] academic mission”); id. ¶ 14 (HBU faculty are “expected to affirm and teach that human life exists from conception to natural death, that the dignity of life is a gift from God, and that as a result abortion, except in cases where it is necessary to save the physical life of the mother, is sin”). The inconsistency in Defendants’ justifications underscores the Mandate’s targeting effect. See Mayfield v. Texas Dep’t of Criminal Justice, 529 F.3d 599, 609 (5th Cir. 2008) (neutrality requires that government policy be “actually based on the justifications it purports, and not something more nefarious”).
c. The Mandate favors secular reasons for noncompliance over religious reasons.
Finally, the Mandate also fails neutrality by honoring certain secular reasons for failure to comply, while rejecting the University’s religious reasons. See supra
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Argument I.B.1 (cataloguing secular reasons that many employers may avoid Mandate). The net effect is that policies covering tens of millions of Americans are exempt for secular reasons, while HBU and ETBU must drop their insurance and pay fines for their religious inability to comply with the Mandate. See Lukumi, 508 U.S. at 535 (noting “the effect of a law in its real operation is strong evidence of its object”); Hartmann v. Stone, 68 F.3d 973, 978 (6th Cir. 1995) (“[T]he Supreme Court has made it clear that ‘neutral’ also means that there must be neutrality between religion and non-religion.”).
* * * Because the Mandate cannot qualify as a neutral or generally applicable law, Defendants must satisfy strict scrutiny. They cannot do so. See supra Argument I.A.3.
C. The Mandate violates the Establishment Clause The Mandate’s “explicit and deliberate distinctions between different religious organizations” also violate the Establishment Clause. See Larson, 456 U.S. at 247 n.23; see Croft v. Perry, 624 F.3d 157, 165-66 (5th Cir. 2010) (quoting Larson) (a denominational preference would contravene the clearest command of the Establishment Clause”). The government exempts favored religious organizations only if they are an institutional church or have structural, doctrinal, and financial affiliation—as defined by the government—with an institutional church. By structuring the exemption in this way, the Mandate engages in “discrimination . . . expressly based on the degree of religiosity of the institution and the extent to which that religiosity affects its operations[.]” Weaver, 534 F.3d at 1257 (McConnell,
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J.) (applying Larson to invalidate distinction between “sectarian” and “pervasively sectarian” organizations). This is forbidden by the Establishment Clause.
Larson invalidated a Minnesota law that imposed anti-fraud disclosure requirements on religious organizations that did not “receive[ ] more than half of their total contributions from members or affiliated organizations.” 456 U.S. at 23132. The law thus exempted established, self-supported churches, while targeting churches that relied on outside donations. Id. at 247 n.23; see also Weaver, 534 F.3d at 1259 (explaining that the law in Larson “discriminated against religions . . . that depend heavily on soliciting donations from the general public”). This was an “explicit and deliberate distinction[] between different religious organizations,” one that failed strict scrutiny and violated the Establishment Clause. Id. at 247 n.23, 255.
Like the exemption struck down by Larson, the Mandate’s “religious employer” exemption impermissibly distinguishes religious organizations based on internal religious characteristics. An organization is exempt if it qualifies as an “integrated auxiliary” of a church—meaning that it has a particular church “affiliation” and is “internally supported.”15 As detailed in Treasury Regulations, these requirements measure the quality of an organization’s ties to a church as well as its funding
15 See 45 C.F.R. § 147.131(a) (exempting as “religious employers” churches, their “integrated auxiliaries,” and religious orders) (referring to 26 U.S.C. §§ 6033(a)(3)(A)(i) & (iii)); 26 C.F.R. § 1.6003-2(h)(1) (defining a non-profit organization as an exempt “integrated auxiliary” if “[a]ffiliated” with a church and “[i]nternally supported”)). The Mandate co-opts tax code criteria that relieve certain tax exempt entities from filing an “annual information return,” or “Form 990.” See 26 C.F.R. § 1.6033-2(a)(1).
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sources. See 26 C.F.R. § 1.6033-2(h)(2) and (3) (“affiliation”); id. § 1.6033-2(h)(4)
(“internal support”). So, an organization is exempt depending on, for instance:
(1) whether it is “operated, supervised, or controlled by or in connection with . . . a church,” id. § 1.6033-2(h)(2)(iii);
(2) whether its “enabling instrument . . . affirm[s] that [it] shares common religious doctrines, principles, disciplines, or practices with a church,” id. § 1.6033-2(h)(3)(i);
(3) whether “[a] church . . . has the authority to appoint or remove . . . [its] officers or directors,” id. § 1.6033-2(h)(3)(ii);
(4) whether, “[i]n the event of dissolution, [its] assets are required to be distributed to a church,” id. § 1.6033-2(h)(3)(vi); and,
(5) whether it “[n]ormally receives more than 50 percent of its support from a combination of governmental sources, public solicitation of contributions, and receipts from the sale of admissions, goods, performance of services, or furnishing of facilities in activities that are not unrelated trades or businesses,” id. § 1.6033-2(4)(ii).
If it fails to meet these requirements, a religious organization cannot qualify for an
exemption and must therefore participate in the government’s scheme to facilitate
employee access to free contraception, sterilization, and abortion-causing drugs and
devices.
As previously noted, the government has candidly explained the assumptions
that led it to structure the Mandate exemption this way:
Houses of worship and their integrated auxiliaries that object to contraceptive coverage on religious grounds are more likely than other employers to employ people of the same faith who share the same objection, and who would therefore be less likely than other people to use contraceptive services even if such services were covered under their plan.
78 Fed. Reg. at 39874 (emphases added). In other words, whether or not a religious
organization is exempt turns on the government’s estimate of whether its faith does,
or does not, line up with the faith of its employees. This distinction is just as suspect
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as the one invalidated in Larson. There, the Minnesota law’s premise was that, if a church is not predominantly self-supporting, it poses a fraud risk and needs regulation. 456 U.S. at 249-51. Here, the Mandate’s premise is that, if a religious organization is not closely affiliated with (and financially tied to) a church, its employees are “more likely” to disagree with it about the morality of contraception, and its insurance should therefore be made to facilitate access to the mandated contraceptive services. Cf. 78 Fed. Reg. at 39874 (estimating that the employees of “[h]ouses of worship and their integrated auxiliaries” are “less likely than other people to use contraceptive services even if such services were covered”).
As explained by Judge McConnell in Weaver, the leading circuit case applying Larson, distinguishing religious organizations based on internal religious characteristics is “even more problematic than the Minnesota law invalidated in Larson.” 534 F.3d at 1259. Weaver invalidated a Colorado state scholarship program’s exclusion of “pervasively sectarian” schools, but not mere “sectarian” schools, as “discrimination . . . expressly based on the degree of religiosity of the institution and the extent to which that religiosity affects its operations[.]” Id. Judge McConnell’s description of the program’s constitutional infirmity applies equally well to the Mandate, which separates exempt from non-exempt organizations based on their “degree of religiosity” (i.e., their doctrinal, structural, and financial connection to an institutional church) and “the extent to which that
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religiosity affects [their] operations” (i.e., whether employees are more or less likely to share an organization’s beliefs about contraception). Id.16
The Mandate’s impermissible distinction among religious organizations triggers strict scrutiny regardless of whether it “substantially burdens” Plaintiffs’ religious exercise under the Free Exercise Clause or RFRA.17 See Larson, 456 U.S. at 253-54 (explaining that the Establishment Clause is offended by “the selective legislative imposition of burdens and advantages upon particular denominations,” whether or not those “burdens . . . would be intrinsically impermissible if they were imposed evenhandedly”) (emphasis in original); Weaver, 534 F.3d at 1257 (observing that “neutral treatment of religions [is] ‘[t]he clearest command of the Establishment Clause’”) (quoting Larson). And, for the reasons already discussed, the Mandate cannot be justified under strict scrutiny. See supra Argument I.A.3.
D. The Mandate violates the Free Speech Clause. For similar reasons, the Mandate violates ETBU’s and HBU’s free speech rights under the First Amendment. The First Amendment protects Plaintiffs’ rights to be free both from government efforts to compel their speech, and government efforts to compel their silence. Riley v. Nat’l Fed’n of the Blind of N. Carolina, Inc., 487 U.S.
16 The Mandate also violates the Establishment Clause for the reasons set forth supra in Arguments II.B.2(b) and (c)—it creates a religious gerrymander targeting the sincere religious beliefs of organizations that are not institutional churches and favors secular reasons for non-compliance over religious reasons. In both instances, the government is establishing a preference for institutional churches that are focused on inculcating faith over organizations that pursue their religious missions in other ways. 17 Most Establishment Clause violations are not subject to an affirmative defense of strict scrutiny, but Larson claims are. See Weaver, 534 F.3d at 1266.
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781, 796-97 (1988) (“[T]he First Amendment guarantees “freedom of speech,” a term necessarily comprising the decision of both what to say and what not to say.”) (emphasis added); see also Wooley v. Maynard, 430 U.S. 705, 714 (1977) (the “right to speak and the right to refrain from speaking are complementary components of the broader concept of ‘individual freedom of mind.’”) (citing W.V. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943)). The Mandate violates the First Amendment in both respects.
First, the Mandate’s proposed accommodation purports to require ETBU and HBU to make statements that will trigger payments for the use of abortioninducing drugs and devices. Ex. A ¶ 47, 54-56; Ex. B ¶ 45-49, 54-56. In particular, Plaintiffs would have to make certifications about their religious objections to their insurers and/or third party administrators “in a form and manner specified by the Secretary.” 29 C.F.R. § 2590.715-2713A (a)(4), (b)(1)(ii), (c)(1). In HBU’s case, it may have to ask another Baptist organization to violate its own conscience, creating an additional moral dilemma. Ex. B ¶ 47. Making these statements will trigger payments for the use of abortion-inducing drugs and devices. 29 C.F.R. § 2590.7152713A (b)(2), (c)(2). As set forth above, ETBU and HBU cannot engage in the speech required by the Mandate because they are forbidden by their religion from doing so. Ex. A ¶ 53, 57; Ex. B ¶ 50, 57.
Second, the Mandate expressly prohibits ETBU and HBU from engaging in speech with a particular content and viewpoint: they are barred by federal law from talking to their third party administrators and encouraging them not to provide
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abortion-inducing drugs. 29 C.F.R. § 2590.715-2713A (“must not, directly or indirectly, seek to influence the third party administrator’s decision to make any such arrangements”). Ex. A ¶ 48.
None of this is remotely permissible under the First Amendment. The government cannot force ETBU and HBU to make statements about their religious beliefs to third parties. Nor can it forbid them from trying to convince others to exercise their own lawful right to choose not to pay for abortion-inducing drugs. Where, as here, the government has compelled speech, dictated its content, and forbade speakers from conveying particular messages, strict scrutiny applies. See, e.g., Turner Broad. Sys. Inc. v. FCC (“Turner I”), 512 U.S. 624, 642 (1994) (stating that “laws 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”).
The mechanism of the accommodation also triggers strict scrutiny because “[l]aws singling out a small number of speakers for onerous treatment are inherently suspect.” Time Warner Cable, Inc. v. Hudson, 667 F.3d 630, 638 (5th Cir. 2012). The number of speakers here—“eligible [religious] organizations”—is quite small, especially when taken in the context of the sheer number of organizations subject to the Mandate. Thus this targeted speech regulation triggers strict scrutiny.
The Mandate fails strict scrutiny for all the reasons set forth in Section I.A.
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Nor can the government justify controlling ETBU’s and HBU’s speech as the price of obtaining the alleged benefit of the accommodation—even where the government is paying speakers, it cannot force them speak the government’s preferred message. See Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 133 S. Ct. 2321, 2331 (2013) (rejecting forced speech requirement because it would render grantees able to express contrary beliefs “only at the price of evident hypocrisy”).
Finally, ETBU and HBU are not even able to avoid these coercive requirements about what they must say and what they must not say by foregoing the accommodation. That course of action would leave them subject to the original Mandate, meaning they would be forced by Defendants to pay directly for abortioninducing drugs and devices, and for “patient education and counseling for all women with reproductive capacity” about these drugs and devices.18 For the reasons set forth above, such a course would violate Plaintiffs’ religious liberty. And forcing them to pay for speech counseling and educating people about how to use abortioninducing drugs would separately violate ETBU’s and HBU’s speech rights. See, e.g., Abood v. Detroit Bd. of Educ. 431 U.S. 209, 234-35 (1977) (finding that forced contributions for union political speech violate the First Amendment “notion that an individual should be free to believe as he will, and that in a free society one’s beliefs should be shaped by his mind and his conscience rather than coerced by the State”); United States v. United Foods Inc., 533 U.S. 405, 411 (2001) (finding that forced
18 Health Resources and Services Administration, Women’s Preventive Services: Required Health Plan Coverage Guidelines (Aug. 1, 2011), Ex. C-1..
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contributions for advertising related to unbranded mushrooms violates First Amendment).
For these reasons, the Mandate and proposed accommodation violate the Free Speech Clause of the First Amendment. II. This Court should grant a preliminary injunction.
As previously discussed at the August 2 conference with the Court, Plaintiffs need speedy interim relief, at the latest before January 1, 2014, which marks the beginning of their respective plan years. Ex. A ¶¶ 66, 77; Ex. B ¶¶ 66, 77. Therefore, regardless of how the Court rules on the motion for partial summary judgment, Plaintiffs request the entry of a preliminary injunction to last during the pendency of litigation in this Court and until the resolution of any subsequent appeal. For the reasons stated below, Plaintiffs easily meet all four preliminary injunction factors. Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011) (citation omitted).
A. Plaintiffs have a substantial likelihood of success on the merits.
For the same reasons set forth in Section I above, the Court should also find that Plaintiffs’ burden has been met by demonstrating a substantial likelihood of success on the merits. Indeed, showing a substantial likelihood of success on the merits is by definition a lower standard than the standard governing whether the Court may grant summary judgment on the same claim. Byrum v. Landreth, 566 F.3d 442, 446 (5th Cir. 2009) (“A plaintiff is not required to prove its entitlement to summary judgment in order to establish ‘a substantial likelihood of success on the merits’ for preliminary injunction purposes.”)
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B. Plaintiffs face a substantial threat of irreparable injury if the injunction is not issued.
It is settled law that a potential violation of Plaintiffs’ rights under the First Amendment and RFRA threatens irreparable harm. “‘The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’” Opulent Life Church v. City of Holly Springs, Miss., 697 F.3d 279, 295 (5th Cir. 2012) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). “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 House Publishers, Inc. v. Sebelius, 904 F. Supp. 2d 106, 129 (D.D.C. 2012), appeal dismissed, 2013 WL 2395168 (D.C. Cir. May 3, 2013) (citation omitted). See also Newland, 881 F. Supp. 2d at 1294-95 (irreparable harm established under RFRA claim against Mandate); Legatus v. Sebelius, 901 F. Supp. 2d 980, 997-98 (E.D. Mich. 2012) (same). Here, coercing Plaintiffs to facilitate access to abortioncausing drugs in direct violation of their faith is the epitome of irreparable injury. Once they have been forced to violate their conscience by providing access to objectionable drugs and services, future remedies cannot change that violation.
The impending enforcement of the Mandate is also causing significant disruption to Plaintiffs’ hiring and human-resources planning. Ex. A ¶¶ 77-85; Ex. B ¶¶ 72-86. Health plans do not take shape overnight, but instead require a number of analyses, negotiations, and decisions before Plaintiffs can offer a health benefits package to their employees. Ex. A ¶ 78; Ex. B ¶ 78. Employers like ETBU that are self-insured must negotiate with third-party administrators, and employers like HBU that are
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insured under church health plans must negotiate with their church health plan provider. Ex. A ¶ 78; Ex. B ¶ 78. Under normal circumstances, Plaintiffs must begin the process of determining their health care package for a plan year several months before the plan year begins. Ex. A ¶ 79; Ex. B ¶ 79. The multiple levels of uncertainty surrounding the Mandate make this already lengthy process even more complex. In addition, if Plaintiffs choose to follow their religious conscience instead of complying with the Mandate, they will be subject to massive fines and penalties. Ex. A ¶¶ 66-70; Ex. B ¶¶ 66-70. Plaintiffs require time to budget for such additional expenses. Such jarring uncertainties adversely affect Plaintiffs’ ability to hire and retain employees, and constitute irreparable injury difficult to evaluate in terms of money damages. Ex. A ¶¶ 72-73, 82-85; Ex. B ¶¶ 72-73, 82-84.
C. The threatened injury to Plaintiffs far outweighs any harm that might result.
There is no real dispute that, absent an injunction, Plaintiffs face grievous harm—namely, government compulsion to violate their religious beliefs or face crippling fines of up to $8 million and nearly $13 million per year. Ex. A ¶ 69; Ex. B ¶ 69. Nor has anyone questioned the reality and severity of the fines Plaintiffs face for exercising those sincerely held religious beliefs. In contrast, granting the injunction will merely prevent the government from enforcing one element of the mandate (the requirement to cover emergency contraceptives) against two employers during the pendency of this appeal.
In other words, an injunction will merely preserve the status quo. The Government has never mandated contraception before, and there is no urgent need
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to enforce the Mandate immediately against Plaintiffs before its legality can be adjudicated. When the government has “alternative, constitutional ways of regulating . . . to achieve its goals,” as it does here, compared to the denial of “First Amendment freedoms,” the government cannot show that its interest outweighs constitutional freedoms. See RTM Media, L.L.C. v. City of Houston, 518 F. Supp. 2d 866, 875 (S.D. Tex. 2007). Both the ubiquity of contraception access and government subsidization thereof, and the fact that the government has exempted “over 190 million health plan participants and beneficiaries,” Newland, 881 F. Supp. 2d at 1298, make it impossible for the Government to claim that it will be harmed by a temporary delay in enforcement against Plaintiffs. Moreover, while a “preliminary injunction would forestall the government’s ability to extend all twenty approved contraceptives” to Plaintiffs’ employees, Plaintiffs “will continue to provide sixteen of the twenty contraceptive methods, so the government’s interest is largely realized while coexisting with” Plaintiffs’ “religious objections.” Hobby Lobby, 2013 WL 3216103, at *26.
Any claim of harm by the Government is further undermined by the fact that it consented to or did not oppose preliminary injunctive relief in numerous 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
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preliminary injunctive relief in several similar cases.” Geneva Coll. v. Sebelius, 2013 WL 1703871, at *12 (W.D. Pa. Apr. 19, 2013). “If 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 Elec. Co., Inc. v. Sebelius, 2013 WL 3297498, at *18 (M.D. Fla. June 25, 2013). In short, especially when balanced against the serious irreparable injury being inflicted on Plaintiffs, any harm the Defendants might claim from a preliminary injunction is de minimis.
D. An injunction will not disserve the public interest. Finally, issuing a preliminary injunction will not disserve the public interest. In this matter, there are two statutory schemes in potential conflict with each other. While the ACA requires Plaintiffs to purchase abortion-causing drugs for any interested employees, RFRA would protect them in exercising their religion by not purchasing those same drugs. The public interest in enforcing long-standing First Amendment and religious freedom protections certainly outweighs the interest in immediate enforcement of a new law that creates a “substantial expansion of employer obligations” and raises “concerns and issues not previously confronted.” Hobby Lobby Stores, Inc. et al. v. Sebelius, 870 F. Supp. 2d 1278, 1296 (W.D. Okla. Nov. 19, 2012), rev’d on other grounds, 2013 WL 3216103 (10th Cir. June 27, 2013); see also Newland, 881 F. Supp. 2d at 1295 (finding “‘there is a strong public interest in the free exercise of religion even where that interest may conflict with [another statutory scheme]’”) (quoting O Centro, 389 F.3d at 1010).
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Congress decided that RFRA trumps in this battle between statutes when it enacted RFRA; the statute reads: “[f]ederal statutory law adopted after November 16, 1993 is subject to [RFRA] unless such law explicitly excludes such application by reference to this chapter.” 42 U.S.C. § 2000bb-3(b). “Congress thus obligated itself to explicitly exempt later-enacted statutes from RFRA, which is conclusive evidence that RFRA trumps later federal statutes when RFRA has been violated. That is why our case law analogizes RFRA to a constitutional right.” Hobby Lobby, 2013 WL 3216103, at *26. Here, “Congress did not exempt the ACA from RFRA.” Id. And of course the protection of Plaintiffs’ constitutional rights is also very much in the public interest.
Furthermore, any government interest in uniform application of the mandate is again “undermined by the creation of exemptions for certain religious organizations and employers with grandfathered health insurance plans.” Newland, 881 F. Supp. 2d at 1295.
In sum, all of the factors weigh heavily in favor of granting a preliminary injunction to stay application of the Mandate and avoiding grave harm to Plaintiffs’ consciences and First Amendment liberties.
CONCLUSION Plaintiffs respectfully request that the Court grant them summary judgment on their RFRA, Free Exercise, Establishment Clause, and Free Speech claims, and issue a preliminary injunction relieving them from the Mandate during the pendency of this litigation, including any appeals.
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Respectfully submitted,

Dated: August 30, 2013

_s/Eric C. Rassbach______________________ Eric C. Rassbach (Texas Bar. No. 24013375)
S.D. Texas Bar No. 872454 Attorney in charge Diana M. Verm Of Counsel (Admitted pro hac vice) Eric S. Baxter Of Counsel (Admitted pro hac vice) The Becket Fund for Religious Liberty 3000 K St. NW, Ste. 220 Washington, DC 20007 Tel.: (202) 955-0095 Fax: (202) 955-0090 erassbach@becketfund.org dverm@becketfund.org ebaxter@becketfund.org
Reagan W. Simpson Of Counsel
James E. Zucker Of Counsel
Yetter Coleman LLP Chase Tower 221 West 6th Street ~ Suite 750 Austin, Texas 78701 rsimpson@yettercoleman.com jzucker@yettercoleman.com
Counsel for Plaintiffs

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Case 4:12-cv-03009 Document 70 Filed in TXSD on 08/30/13 Page 65 of 65 CERTIFICATE OF SERVICE
I hereby certify that on August 30, 2013, the foregoing memorandum was served on all counsel of record via the Court’s electronic case filing (ECF) system.
/s/ Eric C. Rassbach Eric C. Rassbach
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Exhibit A

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

EAST TEXAS BAPTIST UNIVERSITY, and HOUSTON BAPTIST UNIVERSITY,

Plaintiffs,

v. KATHLEEN SEBELIUS, et al.
Defendants.

Civil No. 12-3009
DECLARATION OF SAMUEL W. OLIVER

Declaration of Samuel W. Oliver, Ph.D President, East Texas Baptist University 1. My name is Samuel W. Oliver. I am over the age of 18 and have personal knowledge of the contents of this declaration. I am the curre nt President of East Te xas Baptist University (“East Texas Baptist”). I have served as East Texas Baptist’s President since June 1, 2009. 2. Like other em ployees of East Texas Baptis t, my fa mily and I depend upon East Texas Baptist’s health insurance. I make this d eclaration not only as a college president, but as an employee, a husband and father. The loss of East Texas Baptist’s insurance plan would not only be a professional crisis, but a deep personal concern for my family. 3. I understand that Eas t Texas Baptist will face $8 m illion in annual fines—along with potential penalties and lawsuits—if it continues to follow its religious beliefs by refusing to offer health insurance that co vers abortion-causing drugs and devi ces. As a college president, I know the kind of strain that this would p lace on a s mall liberal arts colleg e. As the presiden t of a Christian college, I know that our responsibility is to the faith th at animates us, the reason East Texas Baptist exists.
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I. East Texas Baptist’s history and beliefs 4. East Texas Baptist is a Christian liberal arts college in Marshall, Texas. East Texas Baptist
was founded as the Co llege of Ma rshall in 19 12, and is affiliated with th e Baptist General Convention of Texas. East Texas Baptist Un iversity Policy and Procedures Manual, 1.1.00 (“Policy Manual,” approx. 300 p.). A true and co mplete copy of the sections of the Policy Manual cited in this Declaration is attached as Exhibit A-1.
5. East Texas Baptist’s purpose is “the deve lopment of intellectual inquiry, social consciousness, wellness, skills f or a contem porary society, global awareness, an d Christian character, for we believe that thes e endeavors prepare students to accept the obligations and opportunities to serve humanity and the Kingdom of God.” Ex. A-1 (Policy Manual, 1.1.01).
6. East Texas Baptist’s motto is “A World of Opportunity in a Comm unity of Faith.” East Texas Baptist Application for Adm ission (“Application,” 4 p.). A true and complete copy of the sections of the Application cited in this Declaration is attached as Exhibit A-2.
7. Today, East Texas Baptist is a thriving acad emic community, serving over 1,250 students in 30 undergraduate degree programs and 4 graduate degree programs.
8. Baptists in Am erica, by virtue of our hi story, are par ticularly sensitive to coe rcive government actions that infringe upon religious liberty. America’s first Baptist leader, Roger Williams, had to flee Massachusetts , where his religious beliefs were not tolerated, and found a colony in Providence, Rhode Island.
9. As Baptists, we are alarm ed whenever any re ligious group’s rights are threatened. As the famous Baptist preacher, George W. Truett once said, “A Baptist would rise at midnight to plead for absolute religious liberty for his Catholic neighbor, and fo r his Jewish neighbor, and for everybody else.”
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10. East Texas Baptist is governed by a 36-m ember Board of Trustees a majority of whom are elected by the Baptist General Convention of Texas. All of East Texas Baptist’s trustees must be active members of Baptist chu rches. Bylaws of East Texas Baptis t University ( as amended Sept. 7, 2012) (“Bylaws”), Arts. 2.01; 2.04. A true and complete copy of the sections of t he Bylaws cited in this Declaration is attached as Exhibit A-3.
11. East Texas Baptist’s theological heritage is Southern Baptist, and through its affiliation with the Baptist General Conventio n of Texas, it is al so connected with the national Southern Baptist Convention.
12. East Texas Baptist seeks employees “who possess the necessary experience, competence, and capacity to provide leadership compatible with the m ission and purpose of the University.” Ex. A-1 (Policy Manual, 1.1.02).
13. To that end, it employs “administrators, academic officers, faculty, and staff who have a personal relationship with Christ, who are f amiliar with truth as rev ealed in the Bible, who live out this truth in the presence of others, who can create an environment where Christ is lived out in the life of the individual[.]” In both “their initial and continuing em ployment, administrators, faculty, and staff at East Texas Baptist University are to prof ess a saving relationship with Jesus Christ and to exhibit a lifestyle that de monstrates that com mitment.” Ex. A-1 (Policy Manual, 1.1.02).
14. East Texas Baptist welcom es students of all religious backgrounds. But because East Texas Baptist “em phasizes a biblical standard of personal conduct and m oral character by all students,” every adm itted student must agree in writing to “act in accordance with the s tudent handbook.” Ex. A-2 (A pplication at 4). Once enroll ed, all full-tim e students must complete at least six credits of chapel in order to graduate.
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15. East Texas Baptist’s mission as an academic community is not merely the transmission of information; “as a Bap tist university it is comm itted to the integration of learning and Christian faith in the pursuit of truth.” Ex. A-1 (Policy Manual, 1.1.01). II. East Texas Baptist’s beliefs and teachings on abortion
16. East Texas Baptist affirm s that Scripture ca lls Christians to uphol d the God-given worth of human beings, as the unique im age-bearers of God, from conception to death. As Genesis 1 says, “God created m ankind in his own i mage.” Genesis 1:27a (NIV). And as Psalm 139 says, “For you [God] created my inmost being; you knit me together in my mother’s womb. . . . all the days ordained for me were written in your book before one of them came to be.” Psalm 139:13, 16 (NIV).
17. The 2000 Baptist Faith & Message, a statement of “doctrines . . . essential to the Baptist tradition of faith and practice” puts it this way: “[t]he sacredness of human personality is evident in that God created man in His ow n image, and in that Christ died for m an; therefore, ev ery person of every race p ossesses full dignity and is worthy of respect an d Christian love.” 2000 Baptist Faith & Message (8 p.). A true and complete copy of th e sections of the 2000 Baptist Faith & Message cited in this Declaration is attached as Exhibit A-4.
18. East Texas Baptist affirm s that Scriptur e condemns the taking of innocent hum an life (Exodus 20:13 (NIV)) and commands Christians to protect the weak and vulnerable. As the Scriptures say, we are to “[d]efend the weak and the fatherless, ” “[r]escue the weak and the needy,” and “speak up for those who cannot speak for them selves.” Psalm 82:3-4b (NIV); Proverbs 31:8a (NIV). And as the 2000 Baptist Faith & Message says, “W e should speak on behalf of the unborn and contend for the sanctity of all hum an life from conception to natural death.” Ex. A-4.
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19. East Texas Baptist believes and teaches that abortion ends a human life and is a sin. But it also believes and teaches that it is important to care for every life involved in a crisis pregnancy: the unborn, the m other, the father, and the extend ed family. Thus, as its student handbook says, East Texas Baptist “supports a culture of life” and seeks to support not only unborn children but also parents facing a crisis pregnancy. 2013-14 East Texas Baptist S tudent Handbook (“Handbook,” approx. 50 p.) at 21. A true and com plete copy of the sections of the Handbook cited in this Declaration is attached as Exhibit A-5.
20. It is a v iolation of East Texas Baptist’ s teachings and religious be liefs to deliberately provide insurance coverage for, fund, sponsor, underwrite, or otherwise facilitate access to abortion-inducing drugs, abortion procedures, and related services.
21. East Texas Baptist ha s a sincere religious objection to providing coverage for the emergency contraceptive drugs P lan B and Ella, since it believes those drugs could prevent a human embryo—which it understands to include a fertilized eg g before it im plants in the uterus—from implanting in the wall of the ut erus, causing the death of the em bryo. The sam e objection applies to abortion-causing IUDs.
22. East Texas Baptist considers the prevention by artificial means of the implantation of a human embryo to be an abortion.
23. Therefore it is a violatio n of East Texas Bap tist’s teachings and religious beliefs for it to deliberately fund, sponsor, underw rite, or otherwis e facilitate access to Plan B and Ella, or abortion-causing IUDs.
24. It is similarly a violation of East Texas Baptist’s religious beliefs to deliberately take any action (including providing access to health insurance) that would facilitate access to abortion-
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causing drugs, abortion procedures, and related services, even if those items were paid for by an insurer or a third party administrator and not by East Texas Baptist.
25. As the Ethics & Religious Liberty Comm ission—the public policy ar m of the Southern Baptist Convention—has said, requiring employers to pro vide “free access to . . . abortioninducing drugs like Ella and Plan B (the “m orning after” pill), abortio n-causing IUDs, and . . . will force millions of Southern Baptists and other people of faith to violate their God-given and constitutionally-protected freedom of religion and conscience.” Ethics & Religious Liberty Commission HHS Fact Sheet (“ER LC Fact Sheet,” 2 p.). A true and com plete copy of the sections of the ERLC Fact Sheet cited in this Declaration is attached as Exhibit A-6.
26. Consistent with these r eligious beliefs, East Texas Baptis t’s employee health insur ance plans do not cover abortions or em ergency contraception such as P lan B, Ella, or abor tioncausing IUDs. East Texas Baptist Healthcare Benefits Plan (“Plan,” approx. 100 p.) at 35-36, 38, 47-48. A true and com plete copy of th e sections of the Plan cited in this Decl aration is attached as Exhibit A-7. III. East Texas Baptist’s health benefits and practices
27. As part of its religious convictions, East Texas Baptist prom otes the well-being and health of its employees. This includes provision of generous health services and health benefits for its employees. See generally Ex. A-7.
28. East Texas Baptist has about 227 full-time employees and 56 part-time employees. All of these employees “profess a saving relationship with Jesus Christ” and have agreed to “exhibit a lifestyle that dem onstrates that comm itment.” Ex. A-1 (Policy Manual, 1.1.02). The overwhelming majority of these full-tim e employees and their fam ilies rely upon East Texas Baptist’s health benefits.
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29. East Texas Baptist is self-insured, and its employees receive health benefits through the East Texas Baptist University Healthcare Benefits Plan, or “Plan.” East Texas Baptist is both the Plan Sponsor and the Plan Administrator. Ex. A-7 (Plan at 1).
30. East Texas Baptist has contract ed with Mutual Assurance Administrators, Inc. to act as the third party administrator for the Plan. Ex. A-7 (Plan at 1).
31. East Texas Baptist’s Plan excludes aborti ons and e mergency contraceptives, including Plan B, Ella, and abortifacient IUDs. Ex. A-7 (Plan at 35-36, 38, 47-48).
32. East Texas Baptist’s Plan covers other type s of contraceptives. East Texas Baptist does not have religious objections to non -abortion-causing forms of contraception. Ex. A-7 (Plan at 35-36, 38, 47-48).
33. I have been inform ed that East Texas Baptis t’s Plan does not m eet the definition of a “grandfathered” plan under 42 U.S.C. § 18011 and 75 Fed. Reg. 41,726, 41,731 (2010).
34. East Texas Baptist wish es to continue to provide high-quality, affordable health benefits for its employees. Doing so is consistent with our religious commitment to support our faculty, staff, and their families.
35. If East Texas Baptist had to terminate the Plan and stop offering health benefits, it would be a serious hardship on most faculty and staff, including myself.
36. If East Texas Baptist had to terminate the Plan and stop offering health benefits, it would suffer serious competitive disadvantages in recruiting and retaining faculty and staff.
37. If East Tex as Baptist h ad to term inate the Pl an and stop offering he alth benefits, it is inevitable that, due to the loss of competitive advantage, the quality of its program s and instruction would suffer.
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IV. The final form of the Mandate and East Texas Baptist’s choice 38. The regulations im posing these requirem ents (“Mandate”) force East T exas Baptist to
provide access to abortion-causing drugs, including Plan B, Ella, and abortion-causing IUDs, in violation of East Texas Baptist’s religious beliefs. The Mandate also forces East Texas Baptist to provide access to education and counseling concerni ng abortion that directly conflicts with East Texas Baptist’s religious beliefs and teachings. Providing these drugs, counseling, and education is incompatible and irreconcilable with East Texas Baptist’s religious beliefs, express messages, and speech.
39. I am aware of the Mandate’s ex emption provision for religious em ployers. East Texas Baptist cannot qualify for this exem ption. East Texas Baptist is not 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 am ended. Specifically, it is not a chur ch, an integrated auxi liary of a church, a convention or association of churches, or a religious order.
40. Because East Texas Baptist do es not qualify for an exemption to the Mandate, we sincerely hoped the U.S. Departm ent of Health and Human Services (“HHS”) would decide to broaden the exemption to cover religious institutions like East Texas Baptist.
41. East Texas Baptist has raised its objections to the Mandate with Congress. On February 16, 2012, I testified befo re the House Comm ittee on Oversight and Government Reform. In my testimony, I told m embers of Congress that East Texas Baptist ha d a religious objection to the Mandate, and that the Mandate viol ated our religious liberty. I a lso told th em that we we re “offended” that HHS said that we weren’t “r eligious enough to have our religious belief s respected.” Oliver Congressional Testim ony (“Congressional Testimony,” 3 p.). A true and
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complete copy of the sections of the Congres sional Testimony cited in this Declaration is attached as Exhibit A-8.
42. East Texas Baptist has also ra ised its objections to the Mandate with HHS directly. For example, in June 2012, East Texas Baptist submitted public comments on the Advance Notice of Proposed Rulemaking (“ANPRM”) regarding HHS’ proposed am endments to the Mandate (77 Fed. Reg. 16501 (Mar. 21, 2012)).
43. In its ANPRM comm ents, East Te xas Baptist expressed its “grave concern” that the ANPRM “fail[ed] to address the violation of religious liberty at the heart of the HHS [M]andate” in two ways: first, it “creat[ed] diffe rent classes of religious groups and assign[ed] each grou p different rights,” and second, it required “acco mmodated” religious groups to continue to participate in the provision of “m orally objectionable drugs.” Ea st Texas Baptist implored HHS to broaden the existing “religious employer” exemption to cover East Texas Baptist and similar religious organizations. East Texas Baptist ANPRM Co mments (“ANPRM Comments,” 3 p.). A true and complete copy of the sections of the ANPRM Comments cited in this Declaration is attached as Exhibit A-9.
44. On July 2, 2013, HHS published its final am endments to the Mandate. 78 Fed. Reg. 39,870 (“Final Rule”). Despite over 400,000 comm ents filed by East Texas Baptist and others, HHS did not abolish the distinction between church es and religious institutions like East Texas Baptist. Instead, HHS adopted an “accommodation” that requires East Texas Baptist to play a central role in facilitati ng access to abortion-causing dru gs and devices by—among other things—finding and designating a third party ad ministrator to provide abortion-causing drugs and devices on our behalf.
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45. The Final Rule also extends the curren t safe harbor—which is a temporary halt on government (but not private) enforcem ent of the Mandate—through the end of 2013. 78 Fed. Reg. at 39889. V. The effects of the “accommodation” on East Texas Baptist
46. An organization is eligible for the accommodation if it (1) “opposes pr oviding coverage for some or all of the contraceptiv e services required”; (2) “is o rganized and op erates as a nonprofit entity”; (3) “holds itself out as a relig ious organization”; and (4) “self-certifies that it satisfies the first three criteria.” 78 Fed. Reg. at 39874. I understand that East Texas Baptist is an “eligible organization.”
47. Thus, East Texas Baptist would need to execu te the self-certification prior to its f irst plan year that begins on or after January 1, 2014, and deliver it to East Texas Baptist’s third party administrator, Mutual Assurance Adm inistrators, Inc. 78 Fed. Reg. at 39879. Delivery of the self-certification would trigger an obligation on the part of Mutual Assurance Administrators to begin providing East T exas Baptist em ployees with payment coverage for abortion-causing drugs and devices. East Texas Baptist would be arranging for this coverage to be “outsourced” to Mutual Assurance Administrators.
48. As a condition of com plying with th e accommodation, East Texas Baptist would also have to refrain from “[d]irectly or indirectly interfering with a third pa rty administrator’s efforts to provide or arrange separate paym ents for contraceptive services for participants or beneficiaries in the plan” or “directly or i ndirectly seeking to influence a third party administrator’s decision to provide or arrange such payments.” 78 Fed. Reg. at 39879-80.
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49. The Mandate assumes that once it h as received the self-certification, Mutual Assurance Administrators, Inc. will be willing to m ake “separate payments for contraceptive services for participants and beneficiaries in the plan.” 78 Fed. Reg. at 39880.
50. However, I understand that HHS has acknowledged that “there is no legal obligation for a third party administrator to enter into or remain in a contract with the eligible organization if it objects to any of these responsibilities.” 78 Fed. Reg. at 39880.
51. At this tim e, I do not know whether Mutual A ssurance Administrators, Inc. will be willing to carry out the obligations of the Mandate.
52. Thus, the burden rem ains on East Texas Baptis t to find a third party administrator that will agree to providing free access to the same contraceptive and abortifacient services that East Texas Baptist cannot directly provide.
53. East Texas Baptist’s religious belief s preclude it from soliciting, contracting with, or designating a third party to provi de these services. From East Texas Baptist’s perspective, forcing a third party ad ministrator to provide fr ee access to abortifacient services is no different than directly providing that access. East Texas Baptist cannot outsource its conscience.
54. Moreover, the Mandate requires that, even if the third party administrator consents, the religious organization—via its self-certification—must expressly designate the third party administrator as “an ERISA section 3(16) plan ad ministrator and claims administrator solely for the purpose of providing paym ents for contraceptive services for participants and beneficiaries.” 78 Fed. Reg. at 39879.
55. The self-certification must specif ically notify the third party administra tor of its “obligations set forth in the[] final regulations, and will be trea ted as a designa tion of the third
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party administrator(s) as plan administrator and claims administrator for contraceptive benefits

pursuant to section 3(16) of ERISA.” 78 Fed. Reg. at 39879.

56. Because the designation makes the third part y administrator a plan administrator with

fiduciary duties, the pay ments for contraceptive and abortifacient services would be paym ents

made under East Texas Baptist’s health benefits plan.

57. Because East Texas Baptist would be requ ired to iden tify and designate a third party

administrator willing to administer the contra ceptive and abortifacient serv ices, East Texas

Baptist’s religious beliefs preclude it from complying with the accommodation.

58. East Texas Baptist would have to identify their em

ployees to the third party

administrator for the distinct purpose of assi sting the governm ent’s scheme to provide free

access to contraceptive and abortifacient services.

59. The third party adm inistrator’s obligation to make direct paym ents for contraceptive

services and abortion services would presumably continue only “for so long as the participant or

beneficiary remains enrolled in the plan.” 78 Fed. Reg. 39876 (discussing insured plans).

60. Thus, East Texas Baptist would have to coor dinate with their third party administrator

regarding when it was adding or removing employees and beneficiaries from its healthcare plan

and, as a result, from the contraceptive and abortifacient services payment scheme.

61. Third party adm inistrators would be requi red to notify plan participants and

beneficiaries of the contraceptive paym ent benefit “contemporaneous with (to the extent

possible) but separate from, any application materials distributed in connection with enrollm ent”

in a group health plan. 78 Fed. Reg. at 39880.

62. This would also require East Texas Baptist to c oordinate the notices with its third party

administrators.

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63. Thus, even under the accommodation, East Texas Baptist and every other non-exempt objecting religious organization would continue to play a central role in facilitating free access to contraceptive and abortifacient services.
64. I understand that the Mandate sets forth com plex means through which a third party administrator may seek to recover its costs in curred in making payments for contraceptive and abortifacient services.
65. But I also understand that there is no way to ensure that the cost of administering the abortifacient services would not be passed down to East Texas Baptist through increased fees. VI. The Mandate’s impact on East Texas Baptist
66. East Texas Baptist will be subject to enforcement under the Mandate—enforcement that includes fines, other regulatory penalties, and potential lawsuits—starting on January 1, 2014. The only way East Texas Baptist could avoid t hose harsh consequences would be to publicly abandon its faith comm itments and violate its relig ious convictions. This is no choice at all, because East Texas Baptist’s faith is central to its identity, its mission, and its very existence.
67. If East Texas Baptist chooses to violate the law—by ceasing to offer em ployee health insurance altogether, or by offering insurance without the objectionable coverage—then it will be penalized with fines of $2000 per full-time employee per year, or roughly $454,000 per year, every year.
68. Although the government has recently announced that it will postpone implem enting the annual fine of $2000 per em ployee for organizations that drop their insurance altogether, the postponement is only for one year, until 2015.
69. In addition to th e $2000 per-employee penalty, East Texas Baptist could also face tax penalties of $100 per day “for ea ch individual to whom such failure relates” 26 U.S.C. §
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4980D(b)(1), for offering insurance that fails to comply with the ACA, which would com e to $8,285,500 per year for our 227 full-time employees alone.
70. An $8 m illion fine would be devastating f or nearly any colleg e, but it is partic ularly devastating for a small Christian liberal arts college like East Texas Baptist.
71. I also understand that E ast Texas Baptist could also face regulatory action and law suits under ERISA.
72. The Mandate im poses a burden on East Texas Baptist’s e mployee recruitment and retention efforts by cre ating uncertainty as to w hether East Te xas Baptist will be able to offer health benefits beyond 2013.
73. The Mandate places Ea st Texas Baptist a t a co mpetitive disadvantage in its efforts to recruit and retain employees.
74. The Mandate forces East Texas Baptist to choose between, on the one hand, violating its religious beliefs, and, on the other hand, incurrin g substantial fines and terminating its employee health benefits.
75. East Texas Baptist wants to continue to pr ovide high-quality heal th benefits for its employees. It has no objections to providing alm ost all of the mandated services, including gestational diabetes screenings, well-woman visits, and most prescription contraceptives. It asks only that it be permitted to follow its beliefs by continuing to refuse to pay for, or provide access to, abortifacients.
76. East Texas Baptist does not have a real choice in this m atter. Its religious beliefs are deep, longstanding, and sincere.
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VII. The need for immediate action 77. The plan year for East Texas Baptist’s he alth benefits begins on January 1, 2014. East
Texas Baptist must begin planning very soon for the 2014 insurance plan year. 78. Every fall, East Texas Baptist works with its third party administrator to set the terms of
the Plan for the upcom ing year. The process is ti me consuming: East Texas Baptist’s staff m ust negotiate and work with its third party adm inistrator on plan changes and on the production and distribution of plan materials and employee health benefit cards . This process typically takes East Texas Baptist several months.
79. East Texas Baptist plans to begin the planning process in October, to give itself adequate time to make any necessary changes before the January 2014 plan year begins.
80. East Texas Baptist needs to implement any major changes prior to November 1, 2014, the first date of the two-week open enrollment period for employees and their families.
81. East Texas Baptist need s immediate relief from the Mandate in order to arrange for and continue providing employee health insurance. Delay could lead to a lapse in coverage. Denial of immediate relief will force East Texas Baptist to choose between its religious beliefs and the prospect of crippling fines, regulatory penalties, and lawsuits.
82. The consequences for East Texas Baptist’s em ployees would be severe. If m y family’s insurance plan is cancelled, we will be forced to seek expensive individual policies on the private market.
83. Currently, the cost of coverage under East Texas Baptist’s Plan is significantly lower than the national average—40% lower, by one calculation m ade by my staff. The additional cost of seeking insurance under the federa l health insurance exchange would be extremely burdensome for our faculty and staff.
15

Case 4:12-cv-03009 Document 70-1 Filed in TXSD on 08/30/13 Page 17 of 58 84. I have received reports from the Faculty Se nate collecting statements from numerous faculty members who have stated that if East Texas Baptist dropped its health benefits, they would be forced to leav e East Texas Baptist and find e mployment elsewhere. The sam e reports have also stated that dropping insurance would gr eatly affect East Texas Baptist’s ability to recruit new faculty and staff. 85. I have also received reports from indivi dual faculty m embers, including Dr. Gerald Nissley, Assistant Professor of Psychology and director of our Counseling program. Dr. Nissley reported to m e that his wife, a cancer survivor and m other of three children, would likely be classified as part of costly “high-risk” pool in the individual health insurance market. As a result, if East Texas Baptist dropped its health benefits, he told me that he would likely have to seek employment elsewhere in order to cover the cost of health insurance for his wife and children. 86. My answer to Dr. Nissley and his co lleagues is that I hope h e will not have to make that choice. I hope that we will have relief from the Mandate prior to January 1.
16

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I declare under penalty of pe1jury that the foregoing is true and correct. Executed on August 30, 2013 in Marshall, Texas
~~·~
Samuel W. "Dub" Oliver, Ph.D.

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Exhibit A-1

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POLICY AND PROCEDURES MANUAL
EAST TEXAS BAPTIST UNIVERSITY

Classification Number: 1.1.00
Page: 1 of 1
Issued: September 3, 1999 Revised: September 7, 2012

EAST TEXAS BAPTIST UNIVERSITY LEGAL BASIS

The legal basis presented below is for use in grant applications, contracts, and other purposes requiring a citation of legal authority.

East Texas Baptist University is a coeducational institution located in the city of Marshall, Texas. A campaign to launch the University was begun in 1911 and the State of Texas granted a charter on October 22, 1912 as College of Marshall, a two-year institution. The first freshman class registered in 1917. In 1924, the college debt was assumed by the Baptist General Convention of Texas with the assistance of the Marshall Chamber of Commerce. The name was changed to East Texas Baptist College in 1944 when it was elevated to four-year status. Accreditation by the Southern Association of Colleges and Schools was granted in 1957. In 1984, a University Charter revision changed the institutional name to East Texas Baptist University.

The University is chartered as a religious, arts and sciences and pre-professional studies institution of higher education. It is a nonprofit corporation operated in affiliation with the Baptist General Convention of Texas. The University holds all of its property in trust for and conducts its affairs in accordance with the policies of the Board of Trustees of East Texas Baptist University. The affairs of the University are governed by a 36 member Board of Trustees elected by the Baptist General Convention of Texas (19 members elected by the Baptist General Convention of Texas; 17 members elected by the East Texas Baptist University Board of Trustees).

Contact for Interpretation: President

_____________________________________________________________ This Policy statement supersedes all previous policy statements on this subject.

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POLICY AND PROCEDURES MANUAL
EAST TEXAS BAPTIST UNIVERSITY

Classification Number: 1.1.01
Page: 1 of 1
Issued: September 3, 1999 Revised: January 23, 2009

STATEMENT OF INSTITUTIONAL PURPOSE

East Texas Baptist University is an institution affiliated with the Baptist General Convention of Texas since 1912. Our purpose is the development of intellectual inquiry, social consciousness, wellness, skills for a contemporary society, global awareness, and Christian character, for we believe that these endeavors prepare students to accept the obligations and opportunities to serve humanity and the Kingdom of God. Our primary focus is on quality academic programs in the humanities, natural and social sciences, fine arts, and selected professional areas. We are committed to Christian stewardship and to providing and maintaining an environment conducive to learning, leadership development, and academic excellence. We affirm that the liberal arts form the surest foundation for education and that the Christian faith provides the surest foundation for life.

We strive to serve students of varied ages and of diverse socioeconomic, geographic, cultural, ethnic, and religious backgrounds. We seek students who demonstrate a potential for success in our supportive and challenging environment. We employ Christian faculty who are dedicated to teaching, scholarship, advising, and service as they model the principles of the Christian faith. As a Baptist university we are committed to the integration of learning and Christian faith in the pursuit of truth.

Contact for Interpretation: President
________________________________________________________ This Policy statement supersedes all previous policy statements on this subject.

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POLICY AND PROCEDURES MANUAL
EAST TEXAS BAPTIST UNIVERSITY

Classification Number: 1.1.02
Page: 1 of 2
Issued: September 3, 1999 Revised: February 15, 2007

SUBJECT: EMPLOYMENT AND RETENTION EXPECTATIONS FOR EMPLOYEES

POLICY STATEMENT

It is the policy of East Texas Baptist University to employ qualified employees who possess the necessary experience, competence, and capacity to provide leadership compatible with the mission and purpose of the University.

FACTS OF INTEREST

East Texas Baptist University seeks administrators, academic officers, faculty, and staff who have a personal relationship with Christ, who are familiar with truth as revealed in the Bible, who live out this truth in the presence of others, who can create an environment where Christ is lived out in the life of the individual, and who have the necessary knowledge, experience, and competence for the position.

PROCEDURES

In their initial and continuing employment, administrators, faculty, and staff at East Texas Baptist University are to profess a saving relationship with Jesus Christ and to exhibit a lifestyle that demonstrates that commitment.

The University expects that employees will refrain from behaviors such as sexual misconduct, abusive and profane behavior, the c asual use and especially the abuse of alcoholic beverages and/or drugs.

As a professional organization, East Texas Baptist University expects employees to demonstrate professionalism in dress, actions, and fulfilling position responsibilities. Unprofess ional behavior such as inappropriate dress, conducting personal business while at work, and bringing children to the workplace is not acceptable. The University administration, through prudent selection, guidance, development, and reappointment decisions, is provided the flexibility to carry out these types of expectations.

The immediate supervisor will screen all applicants to ensure compatibility with the University mission and capabilities for the position. The supervisor may utilize a search/screening committee to assist with the evaluation of the applicants.

For administrators, administrative officers, and staff: All applicants shall be interviewed by the appropriate administrative personnel who at a minimum will include the applicant, potential supervisor, and his/her supervisor.
_____________________________________________________
This Policy statement supersedes all previous policy statements on this subject.

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POLICY AND PROCEDURES MANUAL
EAST TEXAS BAPTIST UNIVERSITY

Classification Number: 1.1.02 Page: 2 of 2
Issued: September 3, 1999 Revised: February 15, 2007

EMPLOYMENT AND RETENTION EXPECTATIONS FOR EMPLOYEES, CONT…

All faculty shall be interviewed by: 1. Chair of the Department in which the position is open 2. Dean of the School 3. Vice President for Academic Affairs 4. Vice President for Spiritual Development 5. President
The credentials for newly hired faculty shall be presented for review by the Executive Committee of the Board of Trustees at its fall meeting. The purpose for the review will be to guide future hiring policies as the Board shall not interfere in the hiring process of specific faculty or staff.

Contact for Interpretation: President
_____________________________________________________________ This Policy statement supersedes all previous policy statements on this subject.

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Exhibit A-2

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
EAST TEXAS BAPTIST UNIVERSITY “A World of Opportunity in a Community of Faith”

Application for Undergraduate Admission and Financial Aid

East Texas Baptist University welcomes all applicants who meet its requirements and qualifications, and does not illegally discriminate on the basis of sex, handicap, age, race, color, religion, national or ethnic origin, or veteran status.

PERSONAL DATA (Please print or type)

Legal Name_________________________________________________________________________________________

Last

First

Middle

Maiden

Preferred Name

Address _________________________________________________________________________________________

Street

P.O. Box

_________________________________________________________________________________________

City

State

Zip

Home County/Parish ___________________ Social Security Number __________________ T-Shirt Size ______

E-Mail _________________________________________________ Date of Birth _________________________

Home Phone ________________________ Gender

Male

Female

Marital Status Single

Married

Cell Phone __________________________ May the Admissions Office to contact you via text message? Yes No

What is the best way for you to be contacted by the Admissions Office? Home Phone Cell Phone

Email

U.S. Citizen? Yes No

Resident Alien? Yes No If not a US citizen, country of citizenship _________________

APPLICATION STATUS

Freshman

Transfer

Re-enter ETBU

Starting Term: Year _____________ Fall

Spring

May Term

June Term

July Term

Will you be living in an ETBU Residence Hall? Yes

No (Students under the age of 25 are required to live in ETBU housing

If yes, single student housing or family housing unless you live within commuting distance. See catalog for more details.)

Will you enroll full-time (12 or more hours)? Yes or Part-time? Have you ever been convicted or adjudicated of a felony or Class A misdemeanor? Yes No
(If yes, explain your circumstances and rehabilitation program on a separate sheet of paper and attach to this application)

If you have a physical disability that will require special accommodation, you must contact the Office of Advising in writing at least 60 days before classes begin to see what arrangements can be made. You will need to explain your circumstances and accommodation requests.

ADDITIONAL INFORMATION (This information will be used in a non-discriminatory manner, consistent with applicable civil rights laws)

Contributing factors for choosing to apply to ETBU. Check all that apply:

Alumni

Attended Summer Camp at ETBU

Parents/Siblings

Current Students

Church Staff Member

Rec Team

Magazine Ad

Brochures

High School Counselor

Scholarship/Financial Aid

Location

Academic Program

Admissions Counselor

ETBU Faculty/Staff Member

College Fair

Campus Visit

Other ________________________________ Home Church/Religious Preference ____________________________________________________

List any extra-curricular activities you would like to continue in college: ___________________________________________________________

Did your parent(s) attend ETBU? Yes No

Does either one of your parents work full-time for a Southern Baptist

If so, what years? _________________________

Church or Agency? Yes No

What is the name of the parent(s) who attended? _____________

If so, what church/agency?__________________________________

__________________________________________________________

Universities are asked by many, including the federal government, accrediting associations, college guides, newspapers, and ourown university communities, to describe

the racial/ethnic backgrounds of our students and employees. In order to respond to these requests, we ask you to answer the following two questions:

(1) Do you consider yourself to be Hispanic/Latino?

Yes

No

(2) In addition, select one or more of the following racial categories to describe yourself:

American Indian or Alaska Native Native Hawaiian or Pacific Islander

Asian

White

Black or African American



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
Signature and Honor Agreement
East Texas Baptist University emphasizes a biblical standard of personal conduct and moral character by all students. ETBU is committed to providing and maintaining an environment conducive to the integration of faith and learning, leadership development and academic excellence. Therefore, if accepted for admission, I promise to act in accordance with the student handbook. I understand that signing this statement is a condition of my acceptance to East Texas Baptist University. ETBU has my permission to verify the information contained in this application. I consent to the release of information concerning my academic and/or financial status to scholarship donors. I understand that if any information on this form is found to be inaccurate or incomplete, it will be sufficient cause for rejection or dismissal. I agree that if my student account, for any semester enrolled, becomes delinquent and all methods of collection have been exhausted by the University, my account will be turned over to a third party collector and I will be responsible for all collection and legal fees.
Applicant Signature: ______________________________________________________________ Printed Name: ___________________________________________________________________ Date: ______________________________
Submit this Application with the following credentials: 1. Non-refundable application fee of $25.00 (International fee - $50.00; Re-enter fee - $15.00) 2. Freshman Admission: ACT or SAT Scores; High School Transcript/GED Certificate;
College Transcript if applicable. Transfer Admission: (24+ transferable hours) Transcripts from all colleges attended 3.Return to: Office of Admissions
East Texas Baptist University One Tiger Drive Marshall, TX 75670 FAX: 903-923-2001
(For other forms, please visit our website: www.etbu.edu)
Updated 09/2012


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Exhibit A-3

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Exhibit A-4

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Report of the Baptist Faith and Message Study Committee to the Southern Baptist Convention
Adopted, June 14th, 2000
The 1999 session of the Southern Baptist Convention, meeting in Atlanta, Georgia, adopted the following motion addressed to the President of the Convention:
"I move that in your capacity as Southern Baptist Convention chairman, you appoint a blue ribbon committee to review the Baptist Faith and Message statement with the responsibility to report and bring any recommendations to this meeting next June in Orlando."
President Paige Patterson appointed the committee as follows: Max Barnett (OK), Steve Gaines (AL), Susie Hawkins (TX), Rudy A. Hernandez (TX), Charles S. Kelley, Jr. (LA), Heather King (IN), Richard D. Land (TN), Fred Luter (LA), R. Albert Mohler, Jr. (KY), T. C. Pinckney (VA), Nelson Price (GA), Adrian Rogers (TN), Roger Spradlin (CA), Simon Tsoi (AZ), Jerry Vines (FL). Adrian Rogers (TN) was appointed chairman.
Your committee thus constituted begs leave to present its report as follows:
Baptists are a people of deep beliefs and cherished doctrines. Throughout our history we have been a confessional people, adopting statements of faith as a witness to our beliefs and a pledge of our faithfulness to the doctrines revealed in Holy Scripture.
Our confessions of faith are rooted in historical precedent, as the church in every age has been called upon to define and defend its beliefs. Each generation of Christians bears the responsibility of guarding the treasury of truth that has been entrusted to us [2 Timothy 1:14]. Facing a new century, Southern Baptists must meet the demands and duties of the present hour.
New challenges to faith appear in every age. A pervasive anti-supernaturalism in the culture was answered by Southern Baptists in 1925, when the Baptist Faith and Message was first adopted by this Convention. In 1963, Southern Baptists responded to assaults upon the authority and truthfulness of the Bible by adopting revisions to the Baptist Faith and Message. The Convention added an article on "The Family" in 1998, thus answering cultural confusion with the clear teachings of Scripture. Now, faced with a culture hostile to the very notion of truth, this generation of Baptists must claim anew the eternal truths of the Christian faith.
Your committee respects and celebrates the heritage of the Baptist Faith and Message, and affirms the decision of the Convention in 1925 to adopt the New Hampshire Confession of Faith, "revised at certain points and with some additional articles growing out of certain needs . . . ." We also respect the important contributions of the 1925 and 1963 editions of the Baptist Faith and Message.
With the 1963 committee, we have been guided in our work by the 1925 "statement of the historic Baptist conception of the nature and function of confessions of faith in our religious and denominational life . . . ." It is, therefore, quoted in full as a part of this report to the Convention:
(1) That they constitute a consensus of opinion of some Baptist body, large or small, for the general instruction and guidance of our own people and others concerning those articles of the Christian faith which are most surely held among us. They are not intended to add anything to the simple conditions of salvation revealed in the New Testament, viz., repentance toward God and faith in Jesus Christ as Saviour and Lord.
(2) That we do not regard them as complete statements of our faith, having any quality of finality or infallibility. As in the past so in the future, Baptists should hold themselves free to revise their statements of faith as may seem to them wise and expedient at any time.

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(3) That any group of Baptists, large or small, have the inherent right to draw up for themselves and publish to the world a confession of their faith whenever they may think it advisable to do so.

(4) That the sole authority for faith and practice among Baptists is the Scriptures of the Old and New Testaments. Confessions are only guides in interpretation, having no authority over the conscience.

(5) That they are statements of religious convictions, drawn from the Scriptures, and are not to be used to hamper freedom of thought or investigation in other realms of life.

Baptists cherish and defend religious liberty, and deny the right of any secular or religious authority to impose a confession of faith upon a church or body of churches. We honor the principles of soul competency and the priesthood of believers, affirming together both our liberty in Christ and our accountability to each other under the Word of God.
Baptist churches, associations, and general bodies have adopted confessions of faith as a witness to the world, and as instruments of doctrinal accountability. We are not embarrassed to state before the world that these are doctrines we hold precious and as essential to the Baptist tradition of faith and practice.
As a committee, we have been charged to address the "certain needs" of our own generation. In an age increasingly hostile to Christian truth, our challenge is to express the truth as revealed in Scripture, and to bear witness to Jesus Christ, who is "the Way, the Truth, and the Life."
The 1963 committee rightly sought to identify and affirm "certain definite doctrines that Baptists believe, cherish, and with which they have been and are now closely identified." Our living faith is established upon eternal truths. "Thus this generation of Southern Baptists is in historic succession of intent and purpose as it endeavors to state for its time and theological climate those articles of the Christian faith which are most surely held among us."
It is the purpose of this statement of faith and message to set forth certain teachings which we believe.
Respectfully Submitted, The Baptist Faith and Message Study Committee Adrian Rogers, Chairman
Committee Members: Adrian Rogers, Chairman Max Barnett Steve Gaines Susie Hawkins Rudy A. Hernandez Charles S. Kelley, Jr. Heather King Richard D. Land Fred Luter R. Albert Mohler, Jr. T. C. Pinckney Nelson Price Roger Spradlin Simon Tsoi Jerry Vines

http://www.sbc.net/bfm/bfmpreamble.asp Copyright © 1999-2013, Southern Baptist Convention. All Rights Reserved.

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The Baptist Faith and Message
The Baptist Faith and Message is also available in the following languages: <%=MultiLingualPage(2)%>
I. The Scriptures
The Holy Bible was written by men divinely inspired and is God's revelation of Himself to man. It is a perfect treasure of divine instruction. It has God for its author, salvation for its end, and truth, without any mixture of error, for its matter. Therefore, all Scripture is totally true and trustworthy. It reveals the principles by which God judges us, and therefore is, and will remain to the end of the world, the true center of Christian union, and the supreme standard by which all human conduct, creeds, and religious opinions should be tried. All Scripture is a testimony to Christ, who is Himself the focus of divine revelation.
Exodus 24:4; Deuteronomy 4:1-2; 17:19; Joshua 8:34; Psalms 19:7-10; 119:11,89,105,140; Isaiah 34:16; 40:8; Jeremiah 15:16; 36:1-32; Matthew 5:17-18; 22:29; Luke 21:33; 24:44-46; John 5:39; 16:13-15; 17:17; Acts 2:16ff.; 17:11; Romans 15:4; 16:25-26; 2 Timothy 3:15-17; Hebrews 1:1-2; 4:12; 1 Peter 1:25; 2 Peter 1:19-21.
II. God
There is one and only one living and true God. He is an intelligent, spiritual, and personal Being, the Creator, Redeemer, Preserver, and Ruler of the universe. God is infinite in holiness and all other perfections. God is all powerful and all knowing; and His perfect knowledge extends to all things, past, present, and future, including the future decisions of His free creatures. To Him we owe the highest love, reverence, and obedience. The eternal triune God reveals Himself to us as Father, Son, and Holy Spirit, with distinct personal attributes, but without division of nature, essence, or being.
A. God the Father
God as Father reigns with providential care over His universe, His creatures, and the flow of the stream of human history according to the purposes of His grace. He is all powerful, all knowing, all loving, and all wise. God is Father in truth to those who become children of God through faith in Jesus Christ. He is fatherly in His attitude toward all men.
Genesis 1:1; 2:7; Exodus 3:14; 6:2-3; 15:11ff.; 20:1ff.; Leviticus 22:2; Deuteronomy 6:4; 32:6; 1 Chronicles 29:10; Psalm 19:1-3; Isaiah 43:3,15; 64:8; Jeremiah 10:10; 17:13; Matthew 6:9ff.; 7:11; 23:9; 28:19; Mark 1:9-11; John 4:24; 5:26; 14:6-13; 17:1-8; Acts 1:7; Romans 8:14-15; 1 Corinthians 8:6; Galatians 4:6; Ephesians 4:6; Colossians 1:15; 1 Timothy 1:17; Hebrews 11:6; 12:9; 1 Peter 1:17; 1 John 5:7.
B. God the Son
Christ is the eternal Son of God. In His incarnation as Jesus Christ He was conceived of the Holy Spirit and born of the virgin Mary. Jesus perfectly revealed and did the will of God, taking upon Himself human nature with its demands and necessities and identifying Himself completely with mankind yet without sin. He honored the divine law by His personal obedience, and in His substitutionary death on the cross He made provision for the redemption of men from sin. He was raised from the dead with a glorified body and appeared to His disciples as the person who was with them before His crucifixion. He ascended into heaven and is now exalted at the right hand of God where He is the One Mediator, fully God, fully man, in whose Person is effected the reconciliation between God and man. He will return in power and glory to judge the world and to consummate His redemptive mission. He now dwells in all believers as the living and ever present Lord.
Genesis 18:1ff.; Psalms 2:7ff.; 110:1ff.; Isaiah 7:14; 53; Matthew 1:18-23; 3:17; 8:29; 11:27; 14:33; 16:16,27; 17:5; 27; 28:1-6,19; Mark 1:1; 3:11; Luke 1:35; 4:41; 22:70; 24:46; John 1:1-18,29; 10:30,38; 11:25-27; 12:44-50; 14:7-11; 16:15-16,28; 17:1-5, 21-22; 20:1-20,28; Acts 1:9; 2:22-24; 7:55-56; 9:4-5,20; Romans 1:3-4; 3:23-26; 5:6-21; 8:1-3,34; 10:4; 1 Corinthians 1:30; 2:2; 8:6; 15:1-8,24-28; 2 Corinthians 5:19-21; 8:9; Galatians 4:4-5; Ephesians 1:20; 3:11; 4:7-10; Philippians 2:5-11; Colossians 1:13-22; 2:9; 1 Thessalonians 4:14-18; 1 Timothy 2:5-6; 3:16; Titus 2:13-14; Hebrews 1:1-3; 4:14-15; 7:14-28; 9:12-15,24-28; 12:2; 13:8; 1 Peter 2:21-25; 3:22; 1 John

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1:7-9; 3:2; 4:14-15; 5:9; 2 John 7-9; Revelation 1:13-16; 5:9-14; 12:10-11; 13:8; 19:16.
C. God the Holy Spirit
The Holy Spirit is the Spirit of God, fully divine. He inspired holy men of old to write the Scriptures. Through illumination He enables men to understand truth. He exalts Christ. He convicts men of sin, of righteousness, and of judgment. He calls men to the Saviour, and effects regeneration. At the moment of regeneration He baptizes every believer into the Body of Christ. He cultivates Christian character, comforts believers, and bestows the spiritual gifts by which they serve God through His church. He seals the believer unto the day of final redemption. His presence in the Christian is the guarantee that God will bring the believer into the fullness of the stature of Christ. He enlightens and empowers the believer and the church in worship, evangelism, and service.
Genesis 1:2; Judges 14:6; Job 26:13; Psalms 51:11; 139:7ff.; Isaiah 61:1-3; Joel 2:28-32; Matthew 1:18; 3:16; 4:1; 12:28-32; 28:19; Mark 1:10,12; Luke 1:35; 4:1,18-19; 11:13; 12:12; 24:49; John 4:24; 14:16-17,26; 15:26; 16:7-14; Acts 1:8; 2:1-4,38; 4:31; 5:3; 6:3; 7:55; 8:17,39; 10:44; 13:2; 15:28; 16:6; 19:1-6; Romans 8:9-11,14-16,26-27; 1 Corinthians 2:10-14; 3:16; 12:3-11,13; Galatians 4:6; Ephesians 1:13-14; 4:30; 5:18; 1 Thessalonians 5:19; 1 Timothy 3:16; 4:1; 2 Timothy 1:14; 3:16; Hebrews 9:8,14; 2 Peter 1:21; 1 John 4:13; 5:6-7; Revelation 1:10; 22:17.
III. Man
Man is the special creation of God, made in His own image. He created them male and female as the crowning work of His creation. The gift of gender is thus part of the goodness of God's creation. In the beginning man was innocent of sin and was endowed by his Creator with freedom of choice. By his free choice man sinned against God and brought sin into the human race. Through the temptation of Satan man transgressed the command of God, and fell from his original innocence whereby his posterity inherit a nature and an environment inclined toward sin. Therefore, as soon as they are capable of moral action, they become transgressors and are under condemnation. Only the grace of God can bring man into His holy fellowship and enable man to fulfill the creative purpose of God. The sacredness of human personality is evident in that God created man in His own image, and in that Christ died for man; therefore, every person of every race possesses full dignity and is worthy of respect and Christian love.
Genesis 1:26-30; 2:5,7,18-22; 3; 9:6; Psalms 1; 8:3-6; 32:1-5; 51:5; Isaiah 6:5; Jeremiah 17:5; Matthew 16:26; Acts 17:26-31; Romans 1:19-32; 3:10-18,23; 5:6,12,19; 6:6; 7:14-25; 8:14-18,29; 1 Corinthians 1:21-31; 15:19,21-22; Ephesians 2:1-22; Colossians 1:21-22; 3:9-11.
IV. Salvation
Salvation involves the redemption of the whole man, and is offered freely to all who accept Jesus Christ as Lord and Saviour, who by His own blood obtained eternal redemption for the believer. In its broadest sense salvation includes regeneration, justification, sanctification, and glorification. There is no salvation apart from personal faith in Jesus Christ as Lord.
A. Regeneration, or the new birth, is a work of God's grace whereby believers become new creatures in Christ Jesus. It is a change of heart wrought by the Holy Spirit through conviction of sin, to which the sinner responds in repentance toward God and faith in the Lord Jesus Christ. Repentance and faith are inseparable experiences of grace.
Repentance is a genuine turning from sin toward God. Faith is the acceptance of Jesus Christ and commitment of the entire personality to Him as Lord and Saviour.
B. Justification is God's gracious and full acquittal upon principles of His righteousness of all sinners who repent and believe in Christ. Justification brings the believer unto a relationship of peace and favor with God.
C. Sanctification is the experience, beginning in regeneration, by which the believer is set apart to God's purposes, and is enabled to progress toward moral and spiritual maturity through the presence and power of the Holy Spirit dwelling in him. Growth in grace should continue throughout the regenerate person's life.
D. Glorification is the culmination of salvation and is the final blessed and abiding state of the redeemed.
Genesis 3:15; Exodus 3:14-17; 6:2-8; Matthew 1:21; 4:17; 16:21-26; 27:22-28:6; Luke 1:68-69; 2:28-32; John 1:11-14,29; 3:3-21,36; 5:24; 10:9,28-29; 15:1-16; 17:17; Acts 2:21; 4:12; 15:11; 16:30-31; 17:30-31; 20:32; Romans 1:16-18; 2:4; 3:23-25; 4:3ff.; 5:8-10; 6:1-23; 8:1-18,29-39; 10:9-10,13; 13:11-14; 1 Corinthians 1:18,30;

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God is the source of all blessings, temporal and spiritual; all that we have and are we owe to Him. Christians have a spiritual debtorship to the whole world, a holy trusteeship in the gospel, and a binding stewardship in their possessions. They are therefore under obligation to serve Him with their time, talents, and material possessions; and should recognize all these as entrusted to them to use for the glory of God and for helping others. According to the Scriptures, Christians should contribute of their means cheerfully, regularly, systematically, proportionately, and liberally for the advancement of the Redeemer's cause on earth.
Genesis 14:20; Leviticus 27:30-32; Deuteronomy 8:18; Malachi 3:8-12; Matthew 6:1-4,19-21; 19:21; 23:23; 25:14-29; Luke 12:16-21,42; 16:1-13; Acts 2:44-47; 5:1-11; 17:24-25; 20:35; Romans 6:6-22; 12:1-2; 1 Corinthians 4:1-2; 6:19-20; 12; 16:1-4; 2 Corinthians 8-9; 12:15; Philippians 4:10-19; 1 Peter 1:18-19.
XIV. Cooperation
Christ's people should, as occasion requires, organize such associations and conventions as may best secure cooperation for the great objects of the Kingdom of God. Such organizations have no authority over one another or over the churches. They are voluntary and advisory bodies designed to elicit, combine, and direct the energies of our people in the most effective manner. Members of New Testament churches should cooperate with one another in carrying forward the missionary, educational, and benevolent ministries for the extension of Christ's Kingdom. Christian unity in the New Testament sense is spiritual harmony and voluntary cooperation for common ends by various groups of Christ's people. Cooperation is desirable between the various Christian denominations, when the end to be attained is itself justified, and when such cooperation involves no violation of conscience or compromise of loyalty to Christ and His Word as revealed in the New Testament.
Exodus 17:12; 18:17ff.; Judges 7:21; Ezra 1:3-4; 2:68-69; 5:14-15; Nehemiah 4; 8:1-5; Matthew 10:5-15; 20:1-16; 22:1-10; 28:19-20; Mark 2:3; Luke 10:1ff.; Acts 1:13-14; 2:1ff.; 4:31-37; 13:2-3; 15:1-35; 1 Corinthians 1:10-17; 3:5-15; 12; 2 Corinthians 8-9; Galatians 1:6-10; Ephesians 4:1-16; Philippians 1:15-18.
XV. The Christian and the Social Order
All Christians are under obligation to seek to make the will of Christ supreme in our own lives and in human society. Means and methods used for the improvement of society and the establishment of righteousness among men can be truly and permanently helpful only when they are rooted in the regeneration of the individual by the saving grace of God in Jesus Christ. In the spirit of Christ, Christians should oppose racism, every form of greed, selfishness, and vice, and all forms of sexual immorality, including adultery, homosexuality, and pornography. We should work to provide for the orphaned, the needy, the abused, the aged, the helpless, and the sick. We should speak on behalf of the unborn and contend for the sanctity of all human life from conception to natural death. Every Christian should seek to bring industry, government, and society as a whole under the sway of the principles of righteousness, truth, and brotherly love. In order to promote these ends Christians should be ready to work with all men of good will in any good cause, always being careful to act in the spirit of love without compromising their loyalty to Christ and His truth.
Exodus 20:3-17; Leviticus 6:2-5; Deuteronomy 10:12; 27:17; Psalm 101:5; Micah 6:8; Zechariah 8:16; Matthew 5:13-16,43-48; 22:36-40; 25:35; Mark 1:29-34; 2:3ff.; 10:21; Luke 4:18-21; 10:27-37; 20:25; John 15:12; 17:15; Romans 12–14; 1Corinthians 5:9-10; 6:1-7; 7:20-24; 10:23-11:1; Galatians 3:26-28; Ephesians 6:5-9; Colossians 3:12-17; 1 Thessalonians 3:12; Philemon; James 1:27; 2:8.
XVI. Peace and War
It is the duty of Christians to seek peace with all men on principles of righteousness. In accordance with the spirit and teachings of Christ they should do all in their power to put an end to war.
The true remedy for the war spirit is the gospel of our Lord. The supreme need of the world is the acceptance of His teachings in all the affairs of men and nations, and the practical application of His law of love. Christian people throughout the world should pray for the reign of the Prince of Peace.
Isaiah 2:4; Matthew 5:9,38-48; 6:33; 26:52; Luke 22:36,38; Romans 12:18-19; 13:1-7; 14:19; Hebrews 12:14; James 4:1-2.
XVII. Religious Liberty
God alone is Lord of the conscience, and He has left it free from the doctrines and commandments of men which are

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contrary to His Word or not contained in it. Church and state should be separate. The state owes to every church protection and full freedom in the pursuit of its spiritual ends. In providing for such freedom no ecclesiastical group or denomination should be favored by the state more than others. Civil government being ordained of God, it is the duty of Christians to render loyal obedience thereto in all things not contrary to the revealed will of God. The church should not resort to the civil power to carry on its work. The gospel of Christ contemplates spiritual means alone for the pursuit of its ends. The state has no right to impose penalties for religious opinions of any kind. The state has no right to impose taxes for the support of any form of religion. A free church in a free state is the Christian ideal, and this implies the right of free and unhindered access to God on the part of all men, and the right to form and propagate opinions in the sphere of religion without interference by the civil power.
Genesis 1:27; 2:7; Matthew 6:6-7,24; 16:26; 22:21; John 8:36; Acts 4:19-20; Romans 6:1-2; 13:1-7; Galatians 5:1,13; Philippians 3:20; 1 Timothy 2:1-2; James 4:12; 1 Peter 2:12-17; 3:11-17; 4:12-19.
XVIII. The Family
God has ordained the family as the foundational institution of human society. It is composed of persons related to one another by marriage, blood, or adoption.
Marriage is the uniting of one man and one woman in covenant commitment for a lifetime. It is God's unique gift to reveal the union between Christ and His church and to provide for the man and the woman in marriage the framework for intimate companionship, the channel of sexual expression according to biblical standards, and the means for procreation of the human race.
The husband and wife are of equal worth before God, since both are created in God's image. The marriage relationship models the way God relates to His people. A husband is to love his wife as Christ loved the church. He has the God-given responsibility to provide for, to protect, and to lead his family. A wife is to submit herself graciously to the servant leadership of her husband even as the church willingly submits to the headship of Christ. She, being in the image of God as is her husband and thus equal to him, has the God-given responsibility to respect her husband and to serve as his helper in managing the household and nurturing the next generation.
Children, from the moment of conception, are a blessing and heritage from the Lord. Parents are to demonstrate to their children God's pattern for marriage. Parents are to teach their children spiritual and moral values and to lead them, through consistent lifestyle example and loving discipline, to make choices based on biblical truth. Children are to honor and obey their parents.
Genesis 1:26-28; 2:15-25; 3:1-20; Exodus 20:12; Deuteronomy 6:4-9; Joshua 24:15; 1 Samuel 1:26-28; Psalms 51:5; 78:1-8; 127; 128; 139:13-16; Proverbs 1:8; 5:15-20; 6:20-22; 12:4; 13:24; 14:1; 17:6; 18:22; 22:6,15; 23:13-14; 24:3; 29:15,17; 31:10-31; Ecclesiastes 4:9-12; 9:9; Malachi 2:14-16; Matthew 5:31-32; 18:2-5; 19:3-9; Mark 10:6-12; Romans 1:18-32; 1 Corinthians 7:1-16; Ephesians 5:21-33; 6:1-4; Colossians 3:18-21; 1 Timothy 5:8,14; 2 Timothy 1:3-5; Titus 2:3-5; Hebrews 13:4; 1 Peter 3:1-7.

http://www.sbc.net/bfm/bfm2000.asp Copyright © 1999-2013, Southern Baptist Convention. All Rights Reserved.

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Exhibit A-5

Case 4:12-cv-03009 Document 70-1 Filed in TXSD on 08/30/13 Page 38 of 58

Case 4:12-cv-03009 Document 70-1 Filed in TXSD on 08/30/13 Page 39 of 58

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Exhibit A-6

Case 4:12-cv-03009 Document 70-1 Filed in TXSD on 08/30/13 Page 41 of 58
THE THREAT TO RELIGIOUS FREEDOM: THE OBAMA ADMINISTRATION’S CONTRACEPTIVES MANDATE
THE ISSUE: HEALTH AND HUMAN SERVICES MANDATE VIOLATES RELIGIOUS FREEDOM
Under a regulation issued in January 2012 by the U.S. Department of Health and Human Services (HHS), nearly all insurance plans will be forced to provide their employees with free access to all FDA-approved contraceptives. This mandate includes coverage of abortion-inducing drugs like ella and Plan B (the “morning after” pill), abortion-causing IUDs, and sterilization. This mandate will force millions of Southern Baptists and other people of faith to violate their God-given and constitutionally-protected freedom of religion and conscience.
HOW THE HHS MANDATE TRAMPLES RELIGIOUS FREEDOM
Not only does the Patient Protection and Affordable Care Act mark the first time the U.S. government has forced citizens to purchase a product (health insurance), the HHS contraceptives mandate marks the first time people of faith have been forced by the government to purchase products that violate their consciences.
A MATTER OF CONSCIENCE AND RELIGIOUS FREEDOM
Some people say this is about contraception. It is not. Many Southern Baptists accept the use of non-abortive contraceptives within marriage. The HHS mandate goes far beyond that. It requires that all insurance plans provide coverage for abortioncausing products. This means employers, including faith-based organizations, must make insurance plans available to their employees in violation of their religious beliefs. It also means that either the employers or the employees will be required to pay for these products through their premium payments.
In effect, the Obama administration has declared that religious conviction about abortion is not an acceptable reason for exemption from this requirement. While the presenting offense is about abortion, the dominant issue is the government’s determination to violate the constitutionally-protected freedom of conscience. No one should be forced by the government to buy or subsidize products that result in the killing of innocent human beings in violation of their consciences. What is at stake is whether our nation will protect our God-given and constitutionally-protected freedom of religion and conscience fought for by our Baptist forebears.
LIMITED EXEMPTIONS
The Obama administration’s very narrow religious exemption means that most religious groups will be required to provide access to contraceptives, including ones that cause abortions. Even under a rule proposed in January 2013, the religious exemption may not include organizations such as local Christian schools and soup kitchens or larger entities such as Christian universities that are not expressly tied to a house of worship. Institutions not covered by the narrow exemption will be forced to choose one of three untenable options:
 Obey the law at the expense of their conscience.  Cease providing coverage—which would force the employees of these religious institutions to obtain coverage with
offensive provisions and could subject the religious institution employer to fines if it is considered a large employer under applicable rules.  Provide coverage but without complying with the HHS mandate that assaults the religious institution’s conscience— which could result in fines to participants if their coverage through the religious institution employer is noncompliant.
LIMITED ACCOMMODATIONS
According to the original mandate, the only accommodation afforded religious institutions was a one-year extension to comply. Practically, this meant religious employers morally opposed to the mandate were granted an additional year before they must begin violating their consciences. That one-year extension ends Aug. 1, 2013.
Main Office • 901 Commerce Street, Suite 550, Nashville, TN 37203 • phone 615.244.2495 • fax 615.242.0065 Leland House on Capitol Hill • 505 Second Street, N.E., Washington, D.C., 20002 • phone 202.547.8105 • fax 202.547.8165
erlc.com

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NO COMPROMISE IN FORCE
On multiple occasions, President Obama announced so-called “compromises.” One proposal was to supposedly exempt religiously-affiliated employers opposed to the mandate by allowing them to shift the burden of covering contraceptives and abortifacients to their insurance companies. This was merely an accounting gimmick. Employers would still have to make abortion-causing products available in the plans they offer their employees, and the insurance companies would be recovering the cost of these products indirectly through the premiums they charge. These so-called compromises were never formally adopted. Yet even if any of the president’s “compromises” are adopted by HHS, the violation of constitutionallyprotected religious conscience remains.
In January 2013, HHS issued a “Notice of Proposed Rule Making” or NPRM. That proposed rule would provide relief for a slightly larger category of houses of worship and their integrated auxiliaries. This does nothing to provide relief for institutions which fall outside the administration’s narrow definition of “religious institution.” This includes many hospitals, universities, businesses, and schools. As of June 2013, more than 60 lawsuits have been filed challenging the mandate.
DIRECTLY IMPACTS SELF-INSURED RELIGIOUS INSTITUTIONS
Neither the current HHS rule nor the so-called “compromise” provides an exemption for religious employers that self-insure, which means they serve as the source of benefit payments instead of contracting with a third party. That includes GuideStone Financial Resources, the Southern Baptist Convention’s medical plan provider covering tens of thousands of pastors, church workers, professors, secretaries, social workers, missionaries, other agency workers, and their families. The HHS mandate reflects a sobering disregard for the unique and historic structure and role of self-insured medical programs like GuideStone and other large and established church health plans, as well as a shocking encroachment on religious freedom.
DIRECTLY IMPACTS PEOPLE OF FAITH
If the HHS mandate is not overturned or changed, many employers whose consciences are violated will have to stop providing insurance for their employees. As a result, when these employees seek to purchase their own insurance plans, they will find that the Obama administration’s mandate requires every insurance plan to pay for these abortion-causing products and services. This will mean that all of us whose consciences are violated by this morally reprehensible mandate will be forced to choose between paying for these products and services, whether we use them or not, or not having insurance for ourselves and our families and paying a government fine for not having insurance.
UPSETS CHURCH AND STATE BALANCE
In recent decades, most conflicts over the church-state relationship have had to do with the Establishment Clause of the First Amendment, with debates about the appropriate role of faith in public life. The HHS mandate is the culmination of a shift in church-state relations that has been emerging over the last decade or so, in which the conflict has gone from potential violations of the Establishment Clause to actual violations of the Free Exercise Clause. The HHS mandate is a direct assault on how people of faith can conduct their own lives according to the dictates of their consciences. The mandate puts the federal government in the position of imposing its will on the conscience by executive edict, casting aside individual conscience and religious freedom.
SETS DANGEROUS PRECEDENT
If the federal government can force religious employers and people of faith to purchase products that offend their faith and conscience, what can’t it force them to do?
THE SOLUTION: RESTORE RELIGIOUS FREEDOM WITH RESPECT FOR RIGHTS OF CONSCIENCE ACT
Jesus instructed us to “render to Caesar what is Caesar’s.” How now shall we respond when Caesar demands what is God’s?
An effort to protect the freedoms of religion and conscience is taking form on Capitol Hill as the Health Care Conscience Rights Act (H.R. 940 / S. 1204). This would safeguard employers and individuals from being forced to violate their religious convictions on contraceptives and abortion-inducing drugs under health care.
With our God-given and constitutionally-protected freedoms of religion and conscience at stake, the church cannot afford to be silent.
Main Office • 901 Commerce Street, Suite 550, Nashville, TN 37203 • phone 615.244.2495 • fax 615.242.0065 Leland House on Capitol Hill • 505 Second Street, N.E., Washington, D.C., 20002 • phone 202.547.8105 • fax 202.547.8165
erlc.com

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Exhibit A-7

Case 4:12-cv-03009 Document 70-1 Filed in TXSD on 08/30/13 Page 44 of 58
East Texas Baptist University HEALTHCARE BENEFITS PLAN
PLAN DOCUMENT AND SUMMARY PLAN DESCRIPTION
Effective: January 1, 2000 Restated: January 1, 2010 Restated: January 1, 2011
Restated March1, 2012
Third Party Administrator: Mutual Assurance Administrators, Inc.
4004 Belt Line Rd, Suite 160 Addison, TX 75001

Case 4:12-cv-03009 Document 70-1 Filed in TXSD on 08/30/13 Page 45 of 58

GENERAL PLAN INFORMATION

What is the purpose of the Plan? The Plan Sponsor has established the Plan for your benefit, on the terms and conditions described herein. The Plan Sponsor’s purpose in establishing the Plan is to help to offset, for you, t he economic effects arising from an injury or illness. To accomplish this purpose, the Plan Sponsor must be cognizant of the necessity of containing health care costs through effective plan design, and the Plan Administrator must abide by the terms of the summary plan description, to allow the Plan Sponsor to allocate the resources available to help those individuals participating in the Plan to the maximum feasible extent.

The Plan is not a contract of em ployment between you and your participating employer and does not give you the right to be retained in the service of your participating employer.

The purpose of this summary plan description is to set forth the terms and provisions of the Plan that provide for the payment or reim bursement of all or a portion of certain medical expenses. T he summary plan description is maintained by the Plan Administrator and m ay be inspected at any tim e during normal working hours by any covered person.

General Plan Information You Should Know

Name of Plan:

East Texas Baptist University Healthcare Benefits Plan

Plan Sponsor:

East Texas Baptist University 1209 N. Grove Marshall, TX 75670 903 923-2120

Plan Administrator: (Named Fiduciary)

East Texas Baptist University 1209 N. Grove Marshall, TX 75670 903 923-2120

Plan Sponsor ID No. (EIN):

75-0859801

Plan Year:

January 1 through December 31

Plan Number:

501

Plan Type:

Medical Prescription Drug

Source of Contributions:

Employee Contributory

Third Party Administrator:

Mutual Assurance Administrators, Inc. 4004 Belt Line Rd., Suite 160 Addison, TX 75001 972 774-1100

Participating Employer(s):

East Texas Baptist University 1209 N. Grove Marshall, TX 75670 903 923-2120

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East Texas Baptist University Healthcare Benefits Plan

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MEDICAL COVERED EXPENSES (Continued)

Hospice Care Covered expenses include hospice care services for a terminally ill covered person when provided by a hospice care agency. The services must be provi ded through a fo rmal, written hospice care treatment program and certified by the attending physician as medically necessary. Benefits are provided for:

x Room and board for confinement in a licensed, accredited hospice facility.

x Services and supplies furnished by the hospice while the patient is confined.

x Part-time nursing care by or under the supervision of a registered nurse.

x Nutrition services and/or special meals.

x Respite services.

x Counseling services by a licensed social worker or a licensed counselor.

x Bereavement counseling by a licensed s ocial worker or a licensed c ounselor for the employee and/or covered dependent(s).

The attending physician must certify that t he covered person is expected to continue to live f or six months or less in order to qualify for this benefit.

If the covered person lives beyond six months, the Plan will approve additional hospice care benefits on receipt of satisfactory evidence of the continued medical necessity of the services.

Infertility Testing Covered expenses will be limited to infertility testing only.

Other Covered Expenses Also Include:

x Blood transfusions and blood products, to the e xtent not replaced. The Plan will not cove r expenses in connection with autologous blood acquisition and storage.

x Oxygen.

x R.N. and L.P.N. private duty nursing services for outpatient care when medically necessary.

x Prosthetic devices and supplies, including initial purchase price, fitting, adjustment and repairs. Replacements of prosthetic devices are not cove red unless due t o a signi ficant change in the covered person’s physical structure and the current device cannot be made serviceable.

x Surgical dressings, splints, casts, and other devices used in the reduction of fractures and dislocations, as well as other similar items that serve only a medical purpose, excluding items usually stocked in the home, or that have a value in the absence of an illness or injury.

x One set of lenses (contact or frame-type) following surgery for cataracts.

x Reconstruction of a breast following a mastectomy, reconstruction of the other breast to produce a symmetrical appearance, and prosthesis and physical complications from all stages of a mastectomy, including

____________________________________________________________________________________________

East Texas Baptist University Healthcare Benefits Plan

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 The Rizza Group Professional Corporation 2003

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MEDICAL COVERED EXPENSES (Continued)
lymphademas, in a manner determined in consultation with the attending physician and the covered person. Reimbursement will be made according to the “Schedule of Benefits” section by type of service.
x Birth control drugs or devices. Covered expenses include oral contraceptives, implants and devices except for “emergency” contraceptives such as Levonelle, EllaOne,or Mifeprex or “emergency IUD’s. Also see provisions of your Prescription Drug Card Program.
x Cochlear implant.
x Educational. Expenses that are related to educational services rendered for diabetic counseling, peritoneal dialysis, or any other educational service deemed to be medically necessary by the Plan.
x Genetic testing and/or counseling. For genetic testing or counseling.
x Midwives.
x Orthotics
x Growth hormone therapy as part of a treatment program approved by the Plan Administrator.
x Surgical extraction of bone-impacted teeth.
x Prenatal vitamins.
x Sterilization procedures, elective.
x Oral surgical procedures, including:  Excision of tumors and cysts of the jaws, cheeks, lips, tongues, roof and floor of the mouth.  Emergency repair due to injury to sound natural teeth.  Surgery needed to c orrect accidental injuries to the jaws, cheeks, lips, tongue, floor and roof of the mouth.  Excision of benign bony growths of the jaw and hard palate.  External incision and drainage of cellulitis.  Incision of sensory sinuses, salivary glands or ducts.
x Treatment of temperomandibular joint dysfunction. Treatment will be limited according to the “Schedule of Benefits” section.
x Chelation therapy for a diagnosis of lead poisoning, or a diagnosis of anemia for a child.
x Wig for hair loss after receiving chemotherapy– 1 wi g per calendar year, m aximum payment $500 per calendar year.

____________________________________________________________________________________________

East Texas Baptist University Healthcare Benefits Plan

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 The Rizza Group Professional Corporation 2003

Case 4:12-cv-03009 Document 70-1 Filed in TXSD on 08/30/13 Page 48 of 58

MEDICAL EXCLUSIONS AND LIMITATIONS

This Plan will not reimburse any expense that is not a covered expense. This Plan does not cover any charge for services or supplies:

x Abortion. Expenses that are incurred directly or indirectly as the result of an abortion except when the life of the mother would be threatened if the fetus were carried to term, or when complications arise.

x Acupuncture.

x Chemical Dependency.

x Corrective shoes. For corrective shoes.

x Counseling. For counseling, except as specifically the result of a mental or nervous condition, for:  Marital difficulties  Social maladjustment  Pastoral issues  Financial issues  Behavioral issues  Lack of discipline or other antisocial action.

x Custodial care. For custodial care, except as specified.

x Dental hospital admissions. Related to dental hospital admissions, unless determined to be medically necessary because of a concomitant condition.

x Dental prescriptions. For dental prescriptions (e.g., Peridex, fluoride).]

x Dental. Expenses that are related to dental treatment, except as specifically provided in this Plan.

x Developmental delay. For developm ental disorders, including learning disabilities, mental retardation or autism.

x Eating disorders. That are related to eating disorders (e .g., anorexia and bulimia). This does not apply to any care for an underlying mental or nervous condition.

x Educational. Expenses that are related to education or vocational training.
 This exclusion does not apply to educational services rendered for diabetic counseling, peritoneal dialysis, or any other educational service deemed to be medically necessary by the Plan.

x Excess over semi-private rate. That are in excess of the semi-private room rate, except as otherwise noted.

x Experimental. That are experimental.

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East Texas Baptist University Healthcare Benefits Plan

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PRESCRIPTION DRUG BENEFIT LIBRARY OPTIONS (Continued)

Benefits are provided for the purchase of drugs through the Plan’s Prescription Drug Card Program . The covered person must purchase the prescription drugs through the Prescription Drug Card Program , and use either a participating pharmacy or the “mail order option.” If a covered person, who is traveling a nd is at least 100 m iles from home, must purchase a prescription drug at a non-participating pharmacy due to an emergency, the Plan will reimburse the cost of t he drug at the PPO Network Pr ovider percentage payable after satisfaction of the PPO Network Provider deductible, shown above.”
Prescription drugs that are not purchased through the Plan’s Prescription Drug Card Program will be covered as Drugs integrated with medical plan above.
The Plan’s Prescription Drug Card Program is administ ered by Caremark. Caremark has a networ k of pharmacies which can identify covered persons and the Plan’s coverage provisions. To fi nd out which pharmacies participate, contact Caremark at (866) 475-0056.

Covered Prescriptions Under the Prescription Drug Card Program, covered expenses include:
x Federal legend drugs.
x State-restricted drugs.
x Insulin.
x Syringes and needles used only to inject insulin.
x Contraceptives including devices, implants, injectables, and oral contraceptives except for all “emergency” contraceptives such as Levonelle, EllOne & Mifeprex and “emergency” IUD’s.
x Acne/ Skin Disease Medications
x Prenatal and Pediatric Vitamins
Certain drugs are not covered, even when prescribed by your physician. Please refer to the list of “Excluded Drugs” below.
How the Program Works There are two ways to purchase drugs through the Plan’s Prescription Drug Card Program. You m ay save money by using the “mail order option” if you have prescription drug(s) that you must take on an on-going basis.
x To fill a prescription at a pa rticipating pharmacy (the “pharm acy option”), sim ply present your Plan ID card and pay your portion of the cost (shown in the “Schedule of Benefits”). The pharmacist will file the claim for you.
x To fill a prescription through the Drug Card Program’s “mail order option”:  Obtain a copy of the mail order form from CVS Caremark.  Complete the patient profile questionnaire (for your first order only).

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East Texas Baptist University Healthcare Benefits Plan

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PRESCRIPTION DRUG BENEFIT LIBRARY OPTIONS (Continued)

 Ask your physician to prescribe the needed medication for a 90-day supply, plus refills.  If you are presently taking medication, you will need a new prescription.  If you need the medication immediately, but will be taking it on an on-going basis, ask your physician
for two prescriptions: one for a 14-day supply that you can have filled at a local pharmacy, and one for the balance of the prescription, up to a 90-day supply, that you can submit through the “mail order option.”  Send the completed patient profile questionnaire to the address on the form with your original prescription(s), along with your check for payment of your portion of the cost (shown in the “Schedule of Benefits”).
Once your o rder is processed, it will be sent to you via First Class Mail and it w ill include instructions for the re-order of future prescriptions and/or refills.
Copayments for the Prescription Drug Card Program do not accumulate toward the out-of-pocket expense limit.
Excluded Drugs The Plan will not cover the following drugs, even when prescribed by the covered person’s physician:
x Anorexiants (weight control drugs).
x “Emergency Contraceptives” all emergency contraceptives such as Levonelle, EllaOne, & Mifeprex and all emergency IUD’s and devices.
x Experimental or investigational drugs, including compounded medications for non-FDA-approved use.
x Drugs which are not medically necessary for the treatment of an illness, injury or pregnancy.
x Fertility medications.
x Fluoride.
x Growth hormones.
x Non-legend drugs, other than insulin.
x Provided in or through a Physician’s office (drugs intended for use in a setting other than the physician’s office).
x Cosmetic for Hair loss including but not limited to Rogaine.
x Smoking cessation products.
x Therapeutic devices or appliances, support garments, and other non-medical substances.]
x Vitamins, except prenatal and pediatric.
x Workers’ Compensation: prescriptions which an eligible person is entitled to receive, without charge, under any workers’ compensation law, or under any m unicipal, state or fe deral program.

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East Texas Baptist University Healthcare Benefits Plan

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Summary Plan Description

 The Rizza Group Professional Corporation 2003

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Exhibit A-8

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“Lines Crossed: Separation of Church and State. Has the Obama Administration Trampled on Freedom of Religion and Freedom of Conscience?”
Testimony of Dr. Samuel W. “Dub” Oliver President, East Texas Baptist University, Marshall, Texas
Before the Committee on Oversight & Government Reform
U.S. House of Representatives
February 16, 2012
Good afternoon Chairman Issa and Ranking Member Cummings.
I appreciate your invitation to share my concerns about this serious threat to religious liberty. My name is Dub Oliver and I serve as the President of East Texas Baptist University in Marshall, Texas, a Christ-centered university founded in 1912.
I would like to raise four main points during my testimony this morning.
1. East Texas Baptist University has a religious objection to this mandate, and this mandate violates our constitutional rights.
Baptists in America, by virtue of our history, are particularly sensitive to coercive government actions that infringe upon religious liberty. America’s first Baptist leader, Roger Williams, had to flee Massachusetts and found a colony in Providence, Rhode Island, because his religious beliefs were not tolerated.
But it’s not just about us. Baptists are alarmed whenever any religious group’s rights are threatened. As the famous Baptist preacher, George W. Truett once said, “A Baptist would rise at midnight to plead for absolute religious liberty for his Catholic neighbor, and for his Jewish neighbor, and for everybody else.”
I would be testifying here even if this mandate only affected my Catholic neighbors. But I must point out that this is not just a Catholic issue. While many Christians do not share the Catholic beliefs against contraception, there is wide agreement that abortion is wrong. And we believe, based on the Bible, that life begins at conception. The Administration’s mandate covers emergency contraceptives such as Plan B and ella, which even this Administration admits interfere with a human embryo.
Our faith and the most recent science tells us that these drugs cause abortions. But under the Administration’s mandate, my university will be required to buy insurance so that our employees
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can obtain these drugs for free, as if these drugs are no different than penicillin. We believe that is wrong.
2. We are offended that this Administration says that we aren’t “religious” enough to have our religious beliefs respected.
Last Friday, the Administration gave final approval to a rule that includes the narrowest definition of a religious organization ever to appear in federal law. ETBU does not qualify because we teach and serve non-Christians (we accept students of all faiths and students of no faith).
The President has now promised that he will someday propose another regulation that will protect groups that the government says aren’t religious enough for an exemption, but still religious enough for some accommodation.
Why is the government creating different classes of religious groups and assigning each group different rights? That is not the government’s job. The First Amendment is designed precisely to stop the government from this sort of picking and choosing.
3. This issue is not about women’s health.
This is about whether the government can get away with trampling on the rights of religious organizations.
It’s ridiculous to claim that organizations like mine don’t care about women’s health. As far as I am aware, no religious group objects to most of the preventative services in the mandate. In fact, we already cover preventative services, including contraceptives, under our employee health plan. We simply object to a few drugs, which the government calls contraceptives, because we believe they cause abortions.
Additionally, I’ve heard it suggested that this mandate is necessary to increase access to contraception. The President said last Friday that close to 99% of women use contraception. I don’t know if that number is true, but surely if the President is quoting this number he knows there is no problem accessing these drugs.
This issue is not about women’s health, it is about religious liberty. It is about whether the government will force religious people and organizations to do something they believe is wrong. Everyone here wants women to have access to quality health care. What we are asking is that our religious views be respected.
4. If the government is allowed to go down this road, where will it end?
To close, perhaps the most frightening aspect of this entire episode for ETBU is that we have no idea where this road will end. Today, the Administration is trying to force us to provide our employees with abortion causing drugs. What’s next?
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Case 4:12-cv-03009 Document 70-1 Filed in TXSD on 08/30/13 Page 54 of 58 If the government can force Catholic monks to dispense birth control, what can’t the government do? If the government can decide that ETBU is not religious enough to have the right to religious liberty, what can’t the government do? If this administration can just decide that religious beliefs are less important than its chosen policy goals, what can’t it do? These questions are alarming. And that is why people from all across the spectrum are joining together out of concern that this mandate threatens to erode one of our most precious rights, our religious liberty, guaranteed to us by the First Amendment. I urge this Committee and Congress to act to ensure religious liberty for those of us at East Texas Baptist University, and for all Americans.
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Exhibit A-9

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Case 4:12-cv-03009 Document 70-1 Filed in TXSD on 08/30/13 Page 57 of 58

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Case 4:12-cv-03009 Document 70-2 Filed in TXSD on 08/30/13 Page 1 of 53
Exhibit B

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

EAST TEXAS BAPTIST UNIVERSITY, and HOUSTON BAPTIST UNIVERSITY,

Plaintiffs,

v. KATHLEEN SEBELIUS, et al.
Defendants.

Civil No. 12-3009
DECLARATION OF DR. ROBERT B. SLOAN

Declaration of Dr. Robert B. Sloan President, Houston Baptist University 1. My name is Robert B. Sloan. I am over the age of 18 and have personal knowledge of the contents of this declaration. I a m the current President of Houston Baptist University (“Houston Baptist”). I have served as Houston Baptist’s President since September 1, 2006. 2. Like other em ployees of Houston Baptis t, my fa mily and I depend upon Houston Baptist’s health insurance. I make this d eclaration not only as a college president, but as an employee, a husband and father. The loss of Houst on Baptist’s insurance plan would not only be a professional crisis, but a deep personal concern for my family. 3. I understand that Hous ton Baptist will face nearly $13 million in ann ual fines—along with potential penalties and lawsuits—if it continues to follow its religious beliefs by refusing to offer health insurance th at covers abortion-causing drugs and devices. As a college president, I know the kind of strain that this would place on a small liberal arts college. As the president of a Christian college, I know that our responsibility is to the faith that anim ates us, the reason Houston Baptist exists.
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I. Houston Baptist’s history and beliefs 4. Houston Baptist is a Christian liberal arts college in Houston, Texas that was founded in
1960 by the Baptist General Convention of Texas. Houston Baptist Website – About – History. A true and complete copy of the sections of Houston Baptist’s website cited in this Declaration is attached as Exhibit B-1.
5. Houston Baptist’s theological heritage is with Texas Baptis ts, and through its affiliation with the Baptist General Conventio n of Texas, it is al so connected with the national Southern Baptist Convention.
6. Houston Baptist’s mission is “to provide a learning experience that instills in students a passion for academic, spiritual, and professional excellence as a result o f our central confession, ‘Jesus Christ is Lord.’” Houston Baptist 2012-13 Student Handbook at 12 (“Student Handbook,” 84 p.). A true and complete copy of the se ctions of the Student Handbook cited in this Declaration is attached as Exhibit B-2.
7. Today, Houston Baptist is a thriving academic community, serving over 2,800 students in 33 undergraduate degree programs and 15 graduate degree programs.
8. Houston Baptist is guided by its commit ment to “stand as a witness for Jesus Christ.” T o that end, since 1974, Houston Bap tist’s bylaws have required that “all those who become associated with Houston Baptist University as a trustee, officer, member of the faculty or of the staff, and who perform work connected with the educational activities of the University, m ust believe in the divine inspiration of the Bible, both the Old T estament and New Testam ent, that man was directly created by God, th e virgin birth of Jesus Christ , our Lord and Savior, as the Son of God, that He died for the sins of all me n and thereafter aro se from the grave, that b y
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repentance and the acceptance of and belief in Him, by the grace of God, the ind ividual is saved from eternal damnation and receives eternal life in the presence of God . . . .” Ex. B-2 (Student Handbook at 12).
9. Houston Baptist welcom es students of all religious backgrounds. But because Houston Baptist is a distinctively Christian community, a ll students who enroll at Houston Baptist a re expected to abide by the Student Code of Conduct, which reflects Houston Baptist’s commitment to the sanctity of life from conception to death. Ex. B-2 (Student Handbook at 54).
10. Houston Baptist’s mission as an academ ic community is not merely the transmission of information; its goal is to “express Christ’s Lo rdship as a function of its academ ic mission.” The Ten Pillars: A 12 Year Vision for the Future of Houston Baptist at 4 (“Ten Pillars, ” approx. 30 p.). A true and com plete copy of the sections of Te n Pillars cited in this Declaration is attached as Exhibit B-3. II. Houston Baptist’s Beliefs and Teachings on Abortion
11. Houston Baptist affirms that Scripture calls Christians to uphold the God-given worth of human beings, as the unique image-bearers of God, from conception to death. As Genesis 1 says, “God created mankind in his own im age.” Genesis 1:27a (NIV). And as Psalm 139 says, “For you [God] created my inmost being; you knit me together in my mother’s womb. . . . all the days ordained for me were written in your book before one of them ca me to be.” Psalm 139:13, 16 (NIV).
12. The 2000 Baptist Faith & Message, a statement of “doctrines . . . essential to the Baptist tradition of faith and practice” puts it this way: “[t]he sacredness of human personality is evident in that God created man in His ow n image, and in that Christ died for m an; therefore, ev ery person of every race p ossesses full dignity and is worthy of respect an d Christian love.” 2000
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Baptist Faith & Message (8 p.). A true and complete copy of th e sections of the 2000 Baptist Faith & Message cited in this Declaration is attached as Exhibit B-4.
13. Houston Baptist affirms that Scripture condemns the taking of innocent hum an life (Exodus 20:13 (NIV)) and commands Christians to protect the weak and vulnerable. As the Scriptures say, we are to “[d]efend the weak and the fatherless, ” “[r]escue the weak and the needy,” and “speak up for those who cannot speak for them selves.” Psalm 82:3-4b (NIV); Proverbs 31:8a (NIV). And as the 2000 Baptist Faith & Message says, “W e should speak on behalf of the unborn and contend for the sanctity of all hum an life from conception to natural death.” Ex. B-4.
14. Houston Baptist’s beliefs about the sanctity of life are reflected in its requirem ents for faculty, all of whom are expected to affirm and teach that human life exists from conception to natural death, that the dignity of life is a gift from God, and that as a result abortion, except in cases where it is necessary to save the physical life of the mother, is sin.
15. Houston Baptist’s beliefs about the sanctity of life are also reflected in its S tudent Code of Conduct, which affirm s that Houston Baptis t “embraces a biblical po sition which honors the sanctity of life,” and “cannot support actions w hich encourage or result in the term ination of human life through suicide, euthanasia, or aborti on-on-demand.” As a result, when students face a crisis pregnancy, “the cam pus community is prepared to stand with both the father and mother of the unborn child” and is “comm itted to assisting the student(s) with” a lternatives to abortion in a way that is “supportive and redemptive.” Ex. B-2 (Student Handbook at 57).
16. It is a violation of Houston Baptist’s teachings and religi ous beliefs to deliberately provide insurance coverage for, fund, sponsor, underwrite, or otherwise facilitate access to abortion-inducing drugs, abortion procedures, and related services.
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17. Houston Baptist has a sincere religious objection to providing coverage for the emergency contraceptive drugs P lan B and Ella, since it believes those drugs could prevent a human embryo—which it understands to include a fertilized eg g before it im plants in the uterus—from implanting in the wall of the ut erus, causing the death of the em bryo. The sam e objection applies to abortion-causing IUDs.
18. Houston Baptist con siders the pr evention by a rtificial means of the implantation of a human embryo to be an abortion.
19. Therefore it is a v iolation of Houston Baptis t’s teachings and religious beliefs for it to deliberately fund, sponsor, underw rite, or otherwis e facilitate access to Plan B and Ella, or abortion-causing IUDs.
20. It is similarly a violation of Houston Baptist’s religious be liefs to deliberately take any action (including providing access to health insurance) that would facilitate access to abortioncausing drugs, abortion procedures, and related services, even if those items were paid for by an insurer or a third party administrator and not by Houston Baptist.
21. As the Ethics & Religious Liberty Comm ission—the public policy ar m of the Southern Baptist Convention—has said, requiring employers to pro vide “free access to . . . abortioninducing drugs like E lla and Plan B (the “morning after” pill), [and] abortion-causing IUDs . . . will force millions of Southern Baptists and other people of faith to violate their God-given and constitutionally-protected freedom of religion and conscience.” Ethics & Religious Liberty Commission HHS Fact Sheet (“ER LC Fact Sheet,” 2 p.). A true and com plete copy of the sections of the ERLC Fact Sheet cited in this Declaration is attached as Exhibit B-5.
22. Consistent with these r eligious beliefs, Houston Baptist’s em ployee health benefit plan does not cover abortions or e mergency contraception such as Plan B, Ella, or abo rtion-causing
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IUDs. GuideStone Health Choice 2000 Plan Summa ry at 2, 4 (“GuideStone Plan S ummary,” 6 p.); GuideStone Preventive Care Schedule at 4 (4 p.). A true and complete copy of the sections of the GuideStone Plan Su mmary cited in this Declaration is attached as Exhibit B-6. A true and complete copy of the sections of the GuideS tone Preventive Care Schedule cited in this Declaration is attached as Exhibit B-7. III. Houston Baptist’s health benefits and practices
23. As part of its religious convictions, Houst on Baptist promotes the well-being and health of its employees. This includes provision of gener ous health services and health benefits for its employees.
24. Houston Baptist has about 355 full-tim e and 118 part-tim e employees. All of these employees believe and teach the historic Christian message that salvation is found through Jesus Christ. The overwhelming m ajority of these f ull-time employees and their f amilies rely upo n Houston Baptist’s health benefits.
25. Houston Baptist’s health benefits plan (“Plan”) is provided through GuideStone Financial Resources of the Southern Baptist Convention (“GuideStone”).
26. Started in 1918 to p rovide financial relief to aging m inisters and their fam ilies, GuideStone’s mission is “to assist churches, denominational entities, and other evangelical ministry organizations by m aking available” a variety of retirem ent, investment, and insurance programs. Meet Southern Baptists, Your GuideS tone Financial Resources at 1 (“GuideStone Brochure,” 2 p.). A true and com plete copy of the secti ons of the GuideStone Brochure cited in this Declaration is attached as Exhibit B-8.
27. GuideStone is a church health plan. “Am ong the oldest health plans in the nation, church health plans are self-funded, m ultiple employer health plans operated by not-for-profit church benefits boards” and given a special status by th e IRS. GuideStone PPCA Overview at 3 (16 p.).
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A true and com plete copy of the sections of the GuideStone PPCA Over view cited in this Declaration is attached as Exhibit B-9.
28. Although GuideStone provides wom en’s preventive services—including m ost FDAapproved contraceptives—without cost-sharing, GuideStone “does not provide coverage for abortions and abortion-causing drugs, as this violates [its] Biblical convictions on the sanctity of life.” Ex. B-9 (GuideStone, PPCA Overview at 5).
29. Thus, Houston Baptist’s Plan ex cludes abortions and emergency contraceptives, including Plan B, Ella, and abortifacient IUDs.
30. Houston Baptist’s Plan covers other types of contraceptives. Houston Baptist does not have religious objections to non-abortion-causing forms of contraception.
31. I have b een informed that Houston Baptist’s Plan does not meet the def inition of a “grandfathered” plan under 42 U.S.C. § 18011 and 75 Fed. Reg. 41,726, 41,731 (2010).
32. Houston Baptist wishes to continue to provide high-quality, affordable health benefits for its employees. Doing so is consistent with our religious commitment to support our faculty, staff, and their families.
33. If Houston Baptist had to terminate the Plan and stop offering health benefits, it would be a serious hardship on most faculty and staff, including myself.
34. If Houston Baptist had to term inate the Plan and stop offering heal th benefits, it would suffer serious competitive disadvantages in recruiting and retaining faculty and staff.
35. If Houston Baptist had to term inate the P lan and stop of fering health benefits, it is inevitable that, due to the loss of competitive advantage, the quality of its program s and instruction would suffer.
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IV. The final form of the Mandate and Houston Baptist’s choice 36. The regulations im posing these requirem ents (“Mandate”) force Houston Baptist to
provide access to abortion-causing drugs, including Plan B, Ella, and abortion-causing IUDs, in violation of Houston Baptist’s religious beliefs. The Mandate al so forces Houston Baptist to provide access to education and counseling con cerning abortion that dire ctly conflicts with Houston Baptist’s religious beliefs and teachings.
37. Providing these drugs, counseling, and education is incompatible and irreconcilable with Houston Baptist’s religious beliefs, express messages, and speech.
38. Providing these drugs, counseling, and education is also incompatible and irreconcilable with the religious beliefs, express m essages, and speech of Houston Baptist’s h ealth benefit provider, GuideStone.
39. I am aware of the Mandate’s exemption pr ovision for religious em ployers. Houston Baptist cannot qualify for this exemption. Hous ton Baptist is not 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 am ended. Specifically, it is not a chur ch, an integrated auxi liary of a church, a convention or association of churches, or a religious order.
40. Because Houston Baptist does not qualify for an exemption to the Mandate, we sincerely hoped the U.S. Department of Health and Human Services (“HHS”) would decide to broaden the exemption to cover religious institutions like Houston Baptist. However, HHS did not do so.
41. On July 2, 2013, HHS published its final am endments to the Mandate. 78 Fed. Reg. 39,870 (“Final Rule”). Despite over 400,000 comments filed by m embers of the public, HHS did not abolish the distinction betw een churches and religious institutions like Houston Baptist . Instead, HHS adopted an “accommodation” that requires Houston Baptist to play a central role in facilitating access to abortion-causing drugs and devices by—among other things—finding and
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designating a third party adm inistrator to prov ide abortion-causing drugs and devices on our behalf.
42. The Final Rule also extends the curren t safe harbor—which is a temporary halt on government (but not private) enforcem ent of the Mandate—through the end of 2013. 78 Fed. Reg. at 39889. V. The effects of the “accommodation” on Houston Baptist
43. An organization is eligible for the accomm odation if it (1) “opposes providing coverage for some or all of the contraceptiv e services required”; (2) “is o rganized and op erates as a nonprofit entity”; (3) “holds itself out as a relig ious organization”; and (4) “self-certifies that it satisfies the first thr ee criteria.” 78 F ed. Reg. at 39874. I unders tand that Houston Baptist is an “eligible organization.”
44. The self-certification must be ex ecuted “prior to the begin ning of the first plan year to which the accommodation is to apply.” 78 Fed. Reg. at 39875.
45. Thus, Houston Baptist would need to execute th e self-certification prior to its f irst plan year that begins on or after January 1, 2014. 78 Fed. Reg. at 39875.
46. The Mandate does not provide any guidance for “eligible organizations” that are insured through church health plans like GuideStone. Fo r example, it is not clear whether Houston Baptist is required to deliver its self-certification to GuideStone, which provides Houston Baptist with its health plan, or Highm ark Blue Cros s Blue Shield (“Highm ark”), the third party administrator that GuideStone has contracted with to adm inister its church health plan. Either course of action would violate Houston Baptist’s religious beliefs.
47. If Houston Baptist delivered its self-certification to GuideStone, Houston Baptist would be asking another Baptist org anization to violate Baptist teaching and deliv er morally
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problematic drugs to its em ployees. This is an independent burden on Houston Baptist’s conscience.
48. Delivering the self -certification to GuideSt one’s third party adm inistrator Highmark is also morally unacceptable, becau se it forces H ouston Baptist to enter into a new relationsh ip with GuideStone’s third party adm inistrator for the specific purpose of providing objectionable drugs.
49. In either event, delivery of the self -certification would trigger an obligation to begin providing Houston Baptist em ployees with paym ent coverage for abortion-causing drugs and devices. Houston Baptist would be arranging for this coverage to be “outsourced” to another entity.
50. Houston Baptist’s religious beliefs preclude it from soliciting, c ontracting with, or designating a third party to provide the objectionable drugs and services. From Houston Baptist’s perspective, forcing GuideStone or Highm ark to provide free access to abortifacient services is no different than directly providing that access. Houston Baptist cannot outsource its conscience.
51. The Mandate assumes that once it has receiv ed the self-certifica tion, Highmark will be willing to make “sepa rate payments for contraceptive services for participants and beneficiaries in the plan.” 78 Fed. Reg. at 39880.
52. However, I understand that HHS has acknowledged that “there is no legal obligation for a third party administrator to enter into or r emain in a contract with the eligible organization if it objects to any of these responsibilities.” 78 Fed. Reg. at 39880.
53. At this time, I do not know whether Highmark will be willing to carry out the obligations of the Mandate.
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54. Moreover, the Mandate requires that, even if the third party adm inistrator consents, the religious organization—via its self-certification—must expressly designate the third party administrator as “an ERISA section 3(16) plan ad ministrator and claims administrator solely for the purpose of providing paym ents for contraceptive services for participants and beneficiaries.” 78 Fed. Reg. at 39879.
55. The self-certification must specif ically notify the third party administra tor of its “obligations set forth in the[] final regulations, and will be trea ted as a designa tion of the third party administrator(s) as plan administrator and claims administrator for contraceptive benefits pursuant to section 3(16) of ERISA.” 78 Fed. Reg. at 39879.
56. Because the designation makes the third p arty administrator a plan ad ministrator with fiduciary duties, the pay ments for contraceptive and abortifacient services would be paym ents made under Houston Baptist’s health benefits plan.
57. Because Houston Baptist would b e required to identify and designate a th ird party administrator willing to adm inister the cont raceptive and abortifacient services , Houston Baptist’s religious beliefs preclude it from complying with the accommodation.
58. Houston Baptist would have to identify its employees to the third party administrator for the distinct purpose of assisting the government’s scheme to provide free access to co ntraceptive and abortifacient services.
59. The third party adm inistrator’s obligation to make direct paym ents for contraceptive services and abortion services would presumably continue only “for so long as the participant or beneficiary remains enrolled in the plan.” 78 Fed. Reg. 39876 (discussing insured plans).
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60. Thus, Houston Baptist would ha ve to coordinate with its third party adm inistrator regarding when it was adding or removing employees and beneficiaries from its healthcare plan and, as a result, from the contraceptive and abortifacient services payment scheme.
61. Third party administrators would be required to notify plan pa rticipants and beneficiaries of the contraceptive an d abortifacient paym ent benefit “contemporaneous with (to the exten t possible) but separate from, any application materials distributed in connection with enrollm ent” in a group health plan. 78 Fed. Reg. at 39880.
62. This would also requ ire Houston Baptis t to co ordinate the notices with its th ird party administrators.
63. Thus, even under the accomm odation, Houston Baptist and every other non-exempt objecting religious organization would continue to play a central role in facilitating free access to contraceptive and abortifacient services.
64. I understand that the Mandate sets forth complex means through which a third party administrator may seek to recover its costs in curred in making payments for contraceptive and abortifacient services.
65. But I also understand that there is no way to ensure that the cost of administering the abortifacient services would not be passed down to Houston Baptist through increased fees. VI. The Mandate’s impact on Houston Baptist
66. Houston Baptist will be subject to enforcem ent under the Mandate—enforcement that includes fines, other regulatory penalties, and potential lawsuits—starting on January 1, 2014. The only way Houston Baptist could avoid thos e harsh consequences would be to publicly abandon its faith comm itments and violate its relig ious convictions. This is no choice at all, because Houston Baptist’s faith is central to its identity, its mission, and its very existence.
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67. If Houston Baptist cho oses to vio late the law—by ceasing to offer employee health insurance altogether, or by offering insurance without the objectionable coverage—then it will be penalized with fines of $2000 per full-time employee per year, or roughly $710,000 per year, every year.
68. Although the government has recently announced that it will postpone implem enting the annual fine of $2000 per em ployee for organizations that drop their insurance altogether, the postponement is only for one year, until 2015.
69. In addition to the $2000 per-em ployee penalty, Houston Baptist could also face tax penalties of $100 per day “for ea ch individual to whom such failure relates” 26 U.S.C. § 4980D(b)(1), for offering insurance that fails to comply with the ACA, which would com e to $12,957,500 per year for our 355 full-time employees alone.
70. A nearly $13 million fine would be dev astating for nearly any co llege, but it is particularly devastating for a small liberal arts college like Houston Baptist.
71. I also understand that Houston Baptist cou ld also face regulato ry action and lawsuits under ERISA.
72. The Mandate imposes a burden on Houston Baptist’s employee recruitment and retention efforts by creating uncertainty as to whether Houston Baptist will be able to offer health benefits beyond 2013.
73. The Mandate places Houston Baptist at a competitive disadvantage in its efforts to recruit and retain employees.
74. The Mandate forces Houston Baptist to c hoose between, on the on e hand, violating its religious beliefs, and, on the other hand, incurrin g substantial fines and terminating its employee health benefits.
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75. Houston Baptist wants to continue to provi de high-quality health benefits for its employees. It has no objections to providing alm ost all of the mandated services, including gestational diabetes screenings, well-woman visits, and most prescription contraceptives. It asks only that it be permitted to follow its beliefs by continuing to refuse to pay for, or provide access to, abortifacients.
76. Houston Baptist does not have a real choice in this matter. Its religious beliefs are deep, longstanding, and sincere. VII. The need for immediate action
77. Houston Baptist’s plan year begins on January 1, 2014. Houston Baptist m ust begin planning now for the 2014 insurance plan year.
78. Every fall, Houston Baptist works with Guide Stone to set the terms of the Plan f or the upcoming year. The process is tim e consuming: Houston Baptist’s HR departm ent must negotiate and work with GuideStone on plan changes and on the production and distribution of plan materials and employee health benefit cards . This process typically takes Houston Baptist two months.
79. Houston Baptist plans to begin the planning pro cess in August, to give itself adequate of time to m ake any neces sary changes before the January 2014 plan year begins. Therefore any major changes must be known to Houston Baptist by September at the latest.
80. Houston Baptist needs to im plement any major changes prior to November 4, 2013, the first date of the two-week open enrollment period for employees and their families.
81. Houston Baptist needs immediat e relief from the Mandate in order to arrange for and continue providing employee health benefits. Delay could lead to a lapse in coverage. Denial of
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immediate relief will force Houston Baptist to choose between its religious beliefs and the prospect of crippling fines, regulatory penalties, and lawsuits.
82. The consequences for Houston Baptist’s em ployees would be severe. If m y family’s insurance plan is cancelled, we will be forced to seek expensive individual policies on the private market.
83. I am not alone. As Houston Baptist confro nts the looming deadline, I have been approached by employees who have expressed fears for themselves and their families about what would happen if Houston Baptist is forced to stop offering health insurance.
84. Not being covered by Houston Baptist’s insu rance would create serious hardship for many. Our em ployees include people battling ca ncer, people undergoing dialysis, and people with dependents who require repe ated medical interventions. For these employees in particular, seeking insurance on the health insurance exchanges would present a significant burden.
85. I hope they will not hav e to make that choice. I hope that we will hav e relief from the Mandate prior to January 1.
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I declare under penalty of perjury that the foregoing is true and correct. Executed on Thursday, August 30,2013 in Houston, Texas.

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Exhibit B-1

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Case 4:12-cv-03009 Document 70-2 Filed in TXSD on 08/30/13 Page 19 of 53
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Houston Baptist College was created by action of the Baptist General Convention of Texas on November 15, 1960, culminating many years of work and study. The aim of our founders was to establish a Christian college of the highest order in the city of Houston that stressed quality of life as well as quality of learning.
In 1952, the Union Baptist Association authorized a committee to study the possibility of locating a Baptist college in Houston. With the assistance and encouragement of the Education Commission of the Baptist General Convention of Texas, the committee conducted a survey in 1955. Acting upon information obtained with the endorsement of the Education Commission, the Association approved the concept of establishing a new college. In 1956, the Executive Board of the Baptist General Convention of Texas agreed to support such a college when the College Committee of Union Baptist Association had succeeded in acquiring both (1) a satisfactory site for a campus of at least one hundred acres, and (2) a minimum corpus of at least three million dollars. Of this sum, one and a half million dollars would constitute a nucleus endowment fund; one and a half million dollars would be designated for a physical plant. The Union Baptist Association accepted these conditions and endorsed the requirements set up by the state Baptist convention.
In 1957, a Houston land developer, Frank Sharp, offered to sell Union Baptist Association 390 acres in southwest Houston for the construction of a college. The Board of Governors of Rice University agreed to lend most of the money needed with the land as collateral. To complete the funding, twenty-five businessmen, since called "founders," pledged to be responsible for $10,000 each. Therefore, by 1958, a campus site of 196 acres was acquired in southwest Houston, and in 1960, the initial financial goal of repaying the loan was reached as a result of a campaign among the churches.
In 1960, the Baptist General Convention of Texas elected the first Board of Trustees. On November 15, 1960, the board approved and signed the college charter. The next day, this charter was ratified and recorded with the Secretary of State in Austin. The way was then cleared to select administrative officers, develop a suitable physical plant and design an appropriate academic program. Dr. W. H. Hinton began service as the first President of the college on July 1, 1962.
The college opened in September 1963 with a freshman class of 193 students, a cluster of new buildings and thirty faculty. When classes began, only the Brown Academic Quadrangle and the campus dormitories were completed. A new class was added each year until the college attained a four-year program in 1966-67. By then, the full-time faculty had grown to fifty-four members, serving an enrollment of approximately 900 undergraduate students.
In 1973, Houston Baptist College officially became Houston Baptist University. And in 1977, the first master’s degree program, the Master of Business Administration, was offered.
HBU has grown into a thriving community of faith and scholarship since its founding more than 50 years ago. And today, HBU has more than 2,500 students and offers in excess of 40 majors through its six colleges, including the Honors College added in 2008. The campus now holds 27 buildings, including three residence colleges, the Husky Village apartments and three museums.
Further Reading Retired University professor Dr. Marilyn McAdams Sibley authored a history of the early years of the founding of the University, To Benefit a University: The Union Baptist Association College Property Committee, 1958-1975. A more complete history of the University covering the period from its chartering in 1960 to its fiftieth anniversary, An Act of Providence, was written by Dr. Don Looser, Vice President Emeritus, and published in 2011.

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PrefaceȱtoȱaȱVisionȱ
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ThisȱdocumentȱcontainsȱHoustonȱBaptistȱUniversity’sȱvisionȱforȱtheȱnextȱ 10Ȭ12ȱyears.ȱ Weȱhaveȱnotȱlimitedȱourȱplansȱtoȱincrementalȱimprovements,ȱbutȱ haveȱinsteadȱdecidedȱtoȱreachȱforȱaȱspaceȱinȱAmericanȱhigherȱeducationȱthatȱisȱ almostȱunoccupied.ȱ Weȱintendȱtoȱbuildȱonȱourȱreputationȱasȱanȱoutstanding,ȱ regionalȱmaster’sȱdegreeȬgrantingȱinstitutionȱtoȱbecomeȱaȱcomprehensiveȱ nationalȱuniversityȱfirmlyȱrootedȱinȱtheȱChristianȱfaith.ȱȱBeforeȱweȱrevealȱourȱ ideasȱforȱtheȱfuture,ȱIȱwouldȱlikeȱtoȱfirstȱrecallȱourȱbeginnings.ȱ
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Inȱ1961,ȱStewartȱMorrisȱandȱRexȱBakerȱsubmittedȱtheȱfinalȱdraftȱofȱtheȱ preambleȱtoȱtheȱbylawsȱofȱwhatȱwasȱthenȱHoustonȱBaptistȱCollege.ȱ Oneȱtrusteeȱ describedȱtheȱpreambleȱasȱtheȱsteelȱthatȱmakesȱtheȱfoundationȱofȱtheȱuniversity.ȱ TheȱexpressȱdesireȱofȱHBU’sȱfoundersȱwasȱtoȱbirthȱandȱnurtureȱaȱuniversityȱthatȱ wouldȱremainȱunequivocallyȱweddedȱtoȱtheȱChristianȱfaith.ȱȱTheȱcurrentȱ preamble,ȱmodifiedȱinȱonlyȱminorȱwaysȱtoȱreflectȱtheȱtransitionȱfromȱcollegeȱtoȱ universityȱandȱtoȱbeȱevenȱclearerȱaboutȱtheȱnecessaryȱChristianȱconvictionsȱofȱ thoseȱwhoȱworkȱforȱHBU,ȱreadsȱasȱfollows:ȱ
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NatureȱofȱtheȱInstitutionȱ TheȱPreambleȱtoȱtheȱUniversityȱByȬLawsȱasȱstatedȱbelowȱdescribesȱtheȱdistinctiveȱ natureȱofȱtheȱinstitution.ȱ
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TheȱHoustonȱBaptistȱUniversityȱisȱaȱChristianȱliberalȱartsȱuniversityȱ dedicatedȱtoȱtheȱdevelopmentȱofȱmoralȱcharacter,ȱtheȱenrichmentȱofȱ spiritualȱlives,ȱandȱtheȱperpetuationȱofȱgrowthȱinȱChristianȱideals.ȱ FoundedȱunderȱtheȱprovidenceȱofȱGodȱandȱwithȱtheȱconvictionȱthatȱthereȱ isȱaȱneedȱforȱaȱuniversityȱinȱthisȱcommunityȱthatȱwillȱtrainȱtheȱminds,ȱ developȱtheȱmoralȱcharacterȱandȱenrichȱtheȱspiritualȱlivesȱofȱallȱpeopleȱ whoȱmayȱcomeȱwithinȱtheȱambitȱofȱitsȱinfluence,ȱHOUSTONȱBAPTISTȱ UNIVERSITYȱshallȱstandȱasȱaȱwitnessȱforȱJesusȱChristȱexpressedȱdirectlyȱ throughȱitsȱadministration,ȱfacultyȱandȱstudents.ȱToȱassureȱtheȱ perpetuationȱofȱtheseȱbasicȱconceptsȱofȱitsȱfounders,ȱitȱisȱresolvedȱthatȱallȱ thoseȱwhoȱbecomeȱassociatedȱwithȱHoustonȱBaptistȱUniversityȱasȱaȱ trustee,ȱofficer,ȱmemberȱofȱtheȱfacultyȱorȱofȱtheȱstaff,ȱandȱwhoȱperformȱ workȱconnectedȱwithȱtheȱeducationalȱactivitiesȱofȱtheȱUniversity,ȱmustȱ believeȱinȱtheȱdivineȱinspirationȱofȱtheȱBible,ȱbothȱtheȱOldȱTestamentȱandȱ NewȱTestament,ȱthatȱmanȱwasȱdirectlyȱcreatedȱbyȱGod,ȱtheȱvirginȱbirthȱofȱ JesusȱChrist,ȱourȱLordȱandȱSavior,ȱasȱtheȱSonȱofȱGod,ȱthatȱHeȱdiedȱforȱtheȱ

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sinsȱofȱallȱmenȱandȱthereafterȱaroseȱfromȱtheȱgrave,ȱthatȱbyȱrepentanceȱandȱ theȱacceptanceȱofȱandȱbeliefȱinȱHim,ȱbyȱtheȱgraceȱofȱGod,ȱtheȱindividualȱisȱ savedȱfromȱeternalȱdamnationȱandȱreceivesȱeternalȱlifeȱinȱtheȱpresenceȱofȱ God;ȱandȱitȱisȱfurtherȱresolvedȱthatȱtheȱultimateȱteachingsȱinȱthisȱ Universityȱshallȱneverȱbeȱinconsistentȱwithȱtheȱaboveȱprinciples.ȱ
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AmendedȱbyȱtheȱBoardȱofȱTrusteesȱ Februaryȱ22,ȱ1974ȱ
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Ourȱhistoricȱpreambleȱcontinuesȱtoȱbeȱtheȱsourceȱofȱourȱvitalityȱandȱ inspiration.ȱȱTheȱcentralȱconfessionȱofȱtheȱNewȱTestament,ȱasȱreflectedȱbyȱtheȱ preamble,ȱisȱthatȱ“JesusȱChristȱisȱLord.”ȱ Suchȱaȱclaimȱhasȱdeepȱimplicationsȱnotȱ onlyȱforȱtheȱchurch,ȱbutȱalsoȱforȱtheȱinstitutionsȱofȱhigherȱlearningȱtoȱwhichȱtheȱ churchȱhasȱgivenȱbirth.ȱȱTheȱGospels,ȱActs,ȱtheȱLetters,ȱandȱtheȱApocalypseȱallȱ bearȱtestimonyȱtoȱtheȱfoundationalȱassertionȱthatȱtheȱsameȱJesusȱwhoȱwasȱ crucifiedȱhasȱnowȱbeenȱvindicatedȱbyȱtheȱcovenantȱGodȱofȱAbraham,ȱIsaac,ȱandȱ Jacob.ȱ FurthermoreȱthisȱresurrectedȱOneȱisȱnowȱinstalledȱonȱaȱheavenlyȱthroneȱ expressiveȱofȱHisȱuniversalȱsovereignty.ȱȱAllȱpeoples,ȱtongues,ȱandȱnationsȱfallȱ underȱtheȱswayȱofȱHisȱLordship,ȱwhetherȱacknowledgedȱorȱnot.ȱȱHeȱisȱtheȱOneȱ throughȱwhomȱGodȱmadeȱtheȱworld,ȱbyȱwhomȱallȱthingsȱareȱreconciled,ȱandȱ untoȱwhomȱandȱforȱwhomȱallȱofȱhistoryȱwillȱfindȱitsȱconsummationȱ(Ephesiansȱ 1:10).ȱ
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Toȱsayȱ“JesusȱChristȱisȱLord”ȱisȱnotȱmerelyȱtoȱaffirmȱaȱreligiousȱconfession,ȱ norȱtoȱsayȱsomethingȱonlyȱaboutȱanȱinteriorȱfaithȱorȱpersonal,ȱindividualisticȱ values.ȱ Rather,ȱtoȱsayȱ“JesusȱChristȱisȱLord”ȱisȱtoȱmakeȱaȱstatementȱthatȱtouchesȱ notȱonlyȱtheȱprivateȱspiritualȱlivesȱofȱbelievers,ȱbutȱencompassesȱallȱofȱtheȱrangesȱ ofȱtheȱcreatedȱorder,ȱincludingȱtheȱscopeȱandȱbreadth,ȱasȱwellȱasȱtheȱcomplexities,ȱ ofȱsocial,ȱpolitical,ȱemotional,ȱandȱphysicalȱexperience.ȱȱHeȱisȱLord,ȱnotȱonlyȱofȱ theȱchurch,ȱbutȱoverȱallȱthingsȱvisibleȱandȱinvisibleȱ(Colossiansȱ1:16),ȱandȱ thereforeȱthereȱisȱnoȱareaȱofȱrealityȱwhichȱis,ȱorȱevenȱcanȱbe,ȱoutsideȱtheȱsphereȱofȱ HisȱLordship.ȱ ForȱaȱuniversityȱtoȱexpressȱChrist’sȱLordshipȱasȱaȱfunctionȱofȱitsȱ academicȱmissionȱisȱtoȱembraceȱinȱprinciple,ȱthroughȱresearch,ȱteaching,ȱandȱtheȱ learningȱcommunity,ȱallȱtheȱquestions,ȱissues,ȱandȱintricaciesȱwhichȱcuriosityȱandȱ imaginationȱcanȱengender,ȱfromȱundergraduateȱthroughȱgraduateȱexperience.ȱ
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OurȱvisionȱforȱHBUȱbrimsȱwithȱideas,ȱplans,ȱandȱobjectives,ȱbutȱweȱviewȱitȱ allȱasȱnothingȱifȱweȱfollowȱtheȱallȬtooȬfamiliarȱpathȱofȱgainingȱdistinctionȱatȱtheȱ priceȱofȱtheȱlossȱofȱourȱfaith.ȱȱForȱthatȱreason,ȱweȱhaveȱproposedȱaȱvisionȱforȱaȱ

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Christianȱuniversityȱandȱnotȱaȱuniversityȱthatȱhappensȱtoȱhaveȱdenominationalȱ trappingsȱancillaryȱtoȱtheȱcoreȱmission.ȱ Weȱaspireȱtoȱnothingȱlessȱthanȱbecomingȱ aȱuniversityȱwhoseȱlearningȱenvironmentȱchallengesȱeveryȱmemberȱofȱtheȱ communityȱtoȱacademicȱexcellenceȱandȱauthenticȱspirituality,ȱbothȱofȱwhichȱareȱ consequencesȱofȱourȱcentralȱconfession:ȱ “JesusȱChristȱisȱLord.”ȱ
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RobertȱB.ȱSloan,ȱJr.ȱ President,ȱHoustonȱBaptistȱUniversityȱ

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Exhibit B-4

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Report of the Baptist Faith and Message Study Committee to the Southern Baptist Convention
Adopted, June 14th, 2000
The 1999 session of the Southern Baptist Convention, meeting in Atlanta, Georgia, adopted the following motion addressed to the President of the Convention:
"I move that in your capacity as Southern Baptist Convention chairman, you appoint a blue ribbon committee to review the Baptist Faith and Message statement with the responsibility to report and bring any recommendations to this meeting next June in Orlando."
President Paige Patterson appointed the committee as follows: Max Barnett (OK), Steve Gaines (AL), Susie Hawkins (TX), Rudy A. Hernandez (TX), Charles S. Kelley, Jr. (LA), Heather King (IN), Richard D. Land (TN), Fred Luter (LA), R. Albert Mohler, Jr. (KY), T. C. Pinckney (VA), Nelson Price (GA), Adrian Rogers (TN), Roger Spradlin (CA), Simon Tsoi (AZ), Jerry Vines (FL). Adrian Rogers (TN) was appointed chairman.
Your committee thus constituted begs leave to present its report as follows:
Baptists are a people of deep beliefs and cherished doctrines. Throughout our history we have been a confessional people, adopting statements of faith as a witness to our beliefs and a pledge of our faithfulness to the doctrines revealed in Holy Scripture.
Our confessions of faith are rooted in historical precedent, as the church in every age has been called upon to define and defend its beliefs. Each generation of Christians bears the responsibility of guarding the treasury of truth that has been entrusted to us [2 Timothy 1:14]. Facing a new century, Southern Baptists must meet the demands and duties of the present hour.
New challenges to faith appear in every age. A pervasive anti-supernaturalism in the culture was answered by Southern Baptists in 1925, when the Baptist Faith and Message was first adopted by this Convention. In 1963, Southern Baptists responded to assaults upon the authority and truthfulness of the Bible by adopting revisions to the Baptist Faith and Message. The Convention added an article on "The Family" in 1998, thus answering cultural confusion with the clear teachings of Scripture. Now, faced with a culture hostile to the very notion of truth, this generation of Baptists must claim anew the eternal truths of the Christian faith.
Your committee respects and celebrates the heritage of the Baptist Faith and Message, and affirms the decision of the Convention in 1925 to adopt the New Hampshire Confession of Faith, "revised at certain points and with some additional articles growing out of certain needs . . . ." We also respect the important contributions of the 1925 and 1963 editions of the Baptist Faith and Message.
With the 1963 committee, we have been guided in our work by the 1925 "statement of the historic Baptist conception of the nature and function of confessions of faith in our religious and denominational life . . . ." It is, therefore, quoted in full as a part of this report to the Convention:
(1) That they constitute a consensus of opinion of some Baptist body, large or small, for the general instruction and guidance of our own people and others concerning those articles of the Christian faith which are most surely held among us. They are not intended to add anything to the simple conditions of salvation revealed in the New Testament, viz., repentance toward God and faith in Jesus Christ as Saviour and Lord.
(2) That we do not regard them as complete statements of our faith, having any quality of finality or infallibility. As in the past so in the future, Baptists should hold themselves free to revise their statements of faith as may seem to them wise and expedient at any time.

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(3) That any group of Baptists, large or small, have the inherent right to draw up for themselves and publish to the world a confession of their faith whenever they may think it advisable to do so.

(4) That the sole authority for faith and practice among Baptists is the Scriptures of the Old and New Testaments. Confessions are only guides in interpretation, having no authority over the conscience.

(5) That they are statements of religious convictions, drawn from the Scriptures, and are not to be used to hamper freedom of thought or investigation in other realms of life.

Baptists cherish and defend religious liberty, and deny the right of any secular or religious authority to impose a confession of faith upon a church or body of churches. We honor the principles of soul competency and the priesthood of believers, affirming together both our liberty in Christ and our accountability to each other under the Word of God.
Baptist churches, associations, and general bodies have adopted confessions of faith as a witness to the world, and as instruments of doctrinal accountability. We are not embarrassed to state before the world that these are doctrines we hold precious and as essential to the Baptist tradition of faith and practice.
As a committee, we have been charged to address the "certain needs" of our own generation. In an age increasingly hostile to Christian truth, our challenge is to express the truth as revealed in Scripture, and to bear witness to Jesus Christ, who is "the Way, the Truth, and the Life."
The 1963 committee rightly sought to identify and affirm "certain definite doctrines that Baptists believe, cherish, and with which they have been and are now closely identified." Our living faith is established upon eternal truths. "Thus this generation of Southern Baptists is in historic succession of intent and purpose as it endeavors to state for its time and theological climate those articles of the Christian faith which are most surely held among us."
It is the purpose of this statement of faith and message to set forth certain teachings which we believe.
Respectfully Submitted, The Baptist Faith and Message Study Committee Adrian Rogers, Chairman
Committee Members: Adrian Rogers, Chairman Max Barnett Steve Gaines Susie Hawkins Rudy A. Hernandez Charles S. Kelley, Jr. Heather King Richard D. Land Fred Luter R. Albert Mohler, Jr. T. C. Pinckney Nelson Price Roger Spradlin Simon Tsoi Jerry Vines

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The Baptist Faith and Message
The Baptist Faith and Message is also available in the following languages: <%=MultiLingualPage(2)%>
I. The Scriptures
The Holy Bible was written by men divinely inspired and is God's revelation of Himself to man. It is a perfect treasure of divine instruction. It has God for its author, salvation for its end, and truth, without any mixture of error, for its matter. Therefore, all Scripture is totally true and trustworthy. It reveals the principles by which God judges us, and therefore is, and will remain to the end of the world, the true center of Christian union, and the supreme standard by which all human conduct, creeds, and religious opinions should be tried. All Scripture is a testimony to Christ, who is Himself the focus of divine revelation.
Exodus 24:4; Deuteronomy 4:1-2; 17:19; Joshua 8:34; Psalms 19:7-10; 119:11,89,105,140; Isaiah 34:16; 40:8; Jeremiah 15:16; 36:1-32; Matthew 5:17-18; 22:29; Luke 21:33; 24:44-46; John 5:39; 16:13-15; 17:17; Acts 2:16ff.; 17:11; Romans 15:4; 16:25-26; 2 Timothy 3:15-17; Hebrews 1:1-2; 4:12; 1 Peter 1:25; 2 Peter 1:19-21.
II. God
There is one and only one living and true God. He is an intelligent, spiritual, and personal Being, the Creator, Redeemer, Preserver, and Ruler of the universe. God is infinite in holiness and all other perfections. God is all powerful and all knowing; and His perfect knowledge extends to all things, past, present, and future, including the future decisions of His free creatures. To Him we owe the highest love, reverence, and obedience. The eternal triune God reveals Himself to us as Father, Son, and Holy Spirit, with distinct personal attributes, but without division of nature, essence, or being.
A. God the Father
God as Father reigns with providential care over His universe, His creatures, and the flow of the stream of human history according to the purposes of His grace. He is all powerful, all knowing, all loving, and all wise. God is Father in truth to those who become children of God through faith in Jesus Christ. He is fatherly in His attitude toward all men.
Genesis 1:1; 2:7; Exodus 3:14; 6:2-3; 15:11ff.; 20:1ff.; Leviticus 22:2; Deuteronomy 6:4; 32:6; 1 Chronicles 29:10; Psalm 19:1-3; Isaiah 43:3,15; 64:8; Jeremiah 10:10; 17:13; Matthew 6:9ff.; 7:11; 23:9; 28:19; Mark 1:9-11; John 4:24; 5:26; 14:6-13; 17:1-8; Acts 1:7; Romans 8:14-15; 1 Corinthians 8:6; Galatians 4:6; Ephesians 4:6; Colossians 1:15; 1 Timothy 1:17; Hebrews 11:6; 12:9; 1 Peter 1:17; 1 John 5:7.
B. God the Son
Christ is the eternal Son of God. In His incarnation as Jesus Christ He was conceived of the Holy Spirit and born of the virgin Mary. Jesus perfectly revealed and did the will of God, taking upon Himself human nature with its demands and necessities and identifying Himself completely with mankind yet without sin. He honored the divine law by His personal obedience, and in His substitutionary death on the cross He made provision for the redemption of men from sin. He was raised from the dead with a glorified body and appeared to His disciples as the person who was with them before His crucifixion. He ascended into heaven and is now exalted at the right hand of God where He is the One Mediator, fully God, fully man, in whose Person is effected the reconciliation between God and man. He will return in power and glory to judge the world and to consummate His redemptive mission. He now dwells in all believers as the living and ever present Lord.
Genesis 18:1ff.; Psalms 2:7ff.; 110:1ff.; Isaiah 7:14; 53; Matthew 1:18-23; 3:17; 8:29; 11:27; 14:33; 16:16,27; 17:5; 27; 28:1-6,19; Mark 1:1; 3:11; Luke 1:35; 4:41; 22:70; 24:46; John 1:1-18,29; 10:30,38; 11:25-27; 12:44-50; 14:7-11; 16:15-16,28; 17:1-5, 21-22; 20:1-20,28; Acts 1:9; 2:22-24; 7:55-56; 9:4-5,20; Romans 1:3-4; 3:23-26; 5:6-21; 8:1-3,34; 10:4; 1 Corinthians 1:30; 2:2; 8:6; 15:1-8,24-28; 2 Corinthians 5:19-21; 8:9; Galatians 4:4-5; Ephesians 1:20; 3:11; 4:7-10; Philippians 2:5-11; Colossians 1:13-22; 2:9; 1 Thessalonians 4:14-18; 1 Timothy 2:5-6; 3:16; Titus 2:13-14; Hebrews 1:1-3; 4:14-15; 7:14-28; 9:12-15,24-28; 12:2; 13:8; 1 Peter 2:21-25; 3:22; 1 John

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1:7-9; 3:2; 4:14-15; 5:9; 2 John 7-9; Revelation 1:13-16; 5:9-14; 12:10-11; 13:8; 19:16.
C. God the Holy Spirit
The Holy Spirit is the Spirit of God, fully divine. He inspired holy men of old to write the Scriptures. Through illumination He enables men to understand truth. He exalts Christ. He convicts men of sin, of righteousness, and of judgment. He calls men to the Saviour, and effects regeneration. At the moment of regeneration He baptizes every believer into the Body of Christ. He cultivates Christian character, comforts believers, and bestows the spiritual gifts by which they serve God through His church. He seals the believer unto the day of final redemption. His presence in the Christian is the guarantee that God will bring the believer into the fullness of the stature of Christ. He enlightens and empowers the believer and the church in worship, evangelism, and service.
Genesis 1:2; Judges 14:6; Job 26:13; Psalms 51:11; 139:7ff.; Isaiah 61:1-3; Joel 2:28-32; Matthew 1:18; 3:16; 4:1; 12:28-32; 28:19; Mark 1:10,12; Luke 1:35; 4:1,18-19; 11:13; 12:12; 24:49; John 4:24; 14:16-17,26; 15:26; 16:7-14; Acts 1:8; 2:1-4,38; 4:31; 5:3; 6:3; 7:55; 8:17,39; 10:44; 13:2; 15:28; 16:6; 19:1-6; Romans 8:9-11,14-16,26-27; 1 Corinthians 2:10-14; 3:16; 12:3-11,13; Galatians 4:6; Ephesians 1:13-14; 4:30; 5:18; 1 Thessalonians 5:19; 1 Timothy 3:16; 4:1; 2 Timothy 1:14; 3:16; Hebrews 9:8,14; 2 Peter 1:21; 1 John 4:13; 5:6-7; Revelation 1:10; 22:17.
III. Man
Man is the special creation of God, made in His own image. He created them male and female as the crowning work of His creation. The gift of gender is thus part of the goodness of God's creation. In the beginning man was innocent of sin and was endowed by his Creator with freedom of choice. By his free choice man sinned against God and brought sin into the human race. Through the temptation of Satan man transgressed the command of God, and fell from his original innocence whereby his posterity inherit a nature and an environment inclined toward sin. Therefore, as soon as they are capable of moral action, they become transgressors and are under condemnation. Only the grace of God can bring man into His holy fellowship and enable man to fulfill the creative purpose of God. The sacredness of human personality is evident in that God created man in His own image, and in that Christ died for man; therefore, every person of every race possesses full dignity and is worthy of respect and Christian love.
Genesis 1:26-30; 2:5,7,18-22; 3; 9:6; Psalms 1; 8:3-6; 32:1-5; 51:5; Isaiah 6:5; Jeremiah 17:5; Matthew 16:26; Acts 17:26-31; Romans 1:19-32; 3:10-18,23; 5:6,12,19; 6:6; 7:14-25; 8:14-18,29; 1 Corinthians 1:21-31; 15:19,21-22; Ephesians 2:1-22; Colossians 1:21-22; 3:9-11.
IV. Salvation
Salvation involves the redemption of the whole man, and is offered freely to all who accept Jesus Christ as Lord and Saviour, who by His own blood obtained eternal redemption for the believer. In its broadest sense salvation includes regeneration, justification, sanctification, and glorification. There is no salvation apart from personal faith in Jesus Christ as Lord.
A. Regeneration, or the new birth, is a work of God's grace whereby believers become new creatures in Christ Jesus. It is a change of heart wrought by the Holy Spirit through conviction of sin, to which the sinner responds in repentance toward God and faith in the Lord Jesus Christ. Repentance and faith are inseparable experiences of grace.
Repentance is a genuine turning from sin toward God. Faith is the acceptance of Jesus Christ and commitment of the entire personality to Him as Lord and Saviour.
B. Justification is God's gracious and full acquittal upon principles of His righteousness of all sinners who repent and believe in Christ. Justification brings the believer unto a relationship of peace and favor with God.
C. Sanctification is the experience, beginning in regeneration, by which the believer is set apart to God's purposes, and is enabled to progress toward moral and spiritual maturity through the presence and power of the Holy Spirit dwelling in him. Growth in grace should continue throughout the regenerate person's life.
D. Glorification is the culmination of salvation and is the final blessed and abiding state of the redeemed.
Genesis 3:15; Exodus 3:14-17; 6:2-8; Matthew 1:21; 4:17; 16:21-26; 27:22-28:6; Luke 1:68-69; 2:28-32; John 1:11-14,29; 3:3-21,36; 5:24; 10:9,28-29; 15:1-16; 17:17; Acts 2:21; 4:12; 15:11; 16:30-31; 17:30-31; 20:32; Romans 1:16-18; 2:4; 3:23-25; 4:3ff.; 5:8-10; 6:1-23; 8:1-18,29-39; 10:9-10,13; 13:11-14; 1 Corinthians 1:18,30;

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God is the source of all blessings, temporal and spiritual; all that we have and are we owe to Him. Christians have a spiritual debtorship to the whole world, a holy trusteeship in the gospel, and a binding stewardship in their possessions. They are therefore under obligation to serve Him with their time, talents, and material possessions; and should recognize all these as entrusted to them to use for the glory of God and for helping others. According to the Scriptures, Christians should contribute of their means cheerfully, regularly, systematically, proportionately, and liberally for the advancement of the Redeemer's cause on earth.
Genesis 14:20; Leviticus 27:30-32; Deuteronomy 8:18; Malachi 3:8-12; Matthew 6:1-4,19-21; 19:21; 23:23; 25:14-29; Luke 12:16-21,42; 16:1-13; Acts 2:44-47; 5:1-11; 17:24-25; 20:35; Romans 6:6-22; 12:1-2; 1 Corinthians 4:1-2; 6:19-20; 12; 16:1-4; 2 Corinthians 8-9; 12:15; Philippians 4:10-19; 1 Peter 1:18-19.
XIV. Cooperation
Christ's people should, as occasion requires, organize such associations and conventions as may best secure cooperation for the great objects of the Kingdom of God. Such organizations have no authority over one another or over the churches. They are voluntary and advisory bodies designed to elicit, combine, and direct the energies of our people in the most effective manner. Members of New Testament churches should cooperate with one another in carrying forward the missionary, educational, and benevolent ministries for the extension of Christ's Kingdom. Christian unity in the New Testament sense is spiritual harmony and voluntary cooperation for common ends by various groups of Christ's people. Cooperation is desirable between the various Christian denominations, when the end to be attained is itself justified, and when such cooperation involves no violation of conscience or compromise of loyalty to Christ and His Word as revealed in the New Testament.
Exodus 17:12; 18:17ff.; Judges 7:21; Ezra 1:3-4; 2:68-69; 5:14-15; Nehemiah 4; 8:1-5; Matthew 10:5-15; 20:1-16; 22:1-10; 28:19-20; Mark 2:3; Luke 10:1ff.; Acts 1:13-14; 2:1ff.; 4:31-37; 13:2-3; 15:1-35; 1 Corinthians 1:10-17; 3:5-15; 12; 2 Corinthians 8-9; Galatians 1:6-10; Ephesians 4:1-16; Philippians 1:15-18.
XV. The Christian and the Social Order
All Christians are under obligation to seek to make the will of Christ supreme in our own lives and in human society. Means and methods used for the improvement of society and the establishment of righteousness among men can be truly and permanently helpful only when they are rooted in the regeneration of the individual by the saving grace of God in Jesus Christ. In the spirit of Christ, Christians should oppose racism, every form of greed, selfishness, and vice, and all forms of sexual immorality, including adultery, homosexuality, and pornography. We should work to provide for the orphaned, the needy, the abused, the aged, the helpless, and the sick. We should speak on behalf of the unborn and contend for the sanctity of all human life from conception to natural death. Every Christian should seek to bring industry, government, and society as a whole under the sway of the principles of righteousness, truth, and brotherly love. In order to promote these ends Christians should be ready to work with all men of good will in any good cause, always being careful to act in the spirit of love without compromising their loyalty to Christ and His truth.
Exodus 20:3-17; Leviticus 6:2-5; Deuteronomy 10:12; 27:17; Psalm 101:5; Micah 6:8; Zechariah 8:16; Matthew 5:13-16,43-48; 22:36-40; 25:35; Mark 1:29-34; 2:3ff.; 10:21; Luke 4:18-21; 10:27-37; 20:25; John 15:12; 17:15; Romans 12–14; 1Corinthians 5:9-10; 6:1-7; 7:20-24; 10:23-11:1; Galatians 3:26-28; Ephesians 6:5-9; Colossians 3:12-17; 1 Thessalonians 3:12; Philemon; James 1:27; 2:8.
XVI. Peace and War
It is the duty of Christians to seek peace with all men on principles of righteousness. In accordance with the spirit and teachings of Christ they should do all in their power to put an end to war.
The true remedy for the war spirit is the gospel of our Lord. The supreme need of the world is the acceptance of His teachings in all the affairs of men and nations, and the practical application of His law of love. Christian people throughout the world should pray for the reign of the Prince of Peace.
Isaiah 2:4; Matthew 5:9,38-48; 6:33; 26:52; Luke 22:36,38; Romans 12:18-19; 13:1-7; 14:19; Hebrews 12:14; James 4:1-2.
XVII. Religious Liberty
God alone is Lord of the conscience, and He has left it free from the doctrines and commandments of men which are

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contrary to His Word or not contained in it. Church and state should be separate. The state owes to every church protection and full freedom in the pursuit of its spiritual ends. In providing for such freedom no ecclesiastical group or denomination should be favored by the state more than others. Civil government being ordained of God, it is the duty of Christians to render loyal obedience thereto in all things not contrary to the revealed will of God. The church should not resort to the civil power to carry on its work. The gospel of Christ contemplates spiritual means alone for the pursuit of its ends. The state has no right to impose penalties for religious opinions of any kind. The state has no right to impose taxes for the support of any form of religion. A free church in a free state is the Christian ideal, and this implies the right of free and unhindered access to God on the part of all men, and the right to form and propagate opinions in the sphere of religion without interference by the civil power.
Genesis 1:27; 2:7; Matthew 6:6-7,24; 16:26; 22:21; John 8:36; Acts 4:19-20; Romans 6:1-2; 13:1-7; Galatians 5:1,13; Philippians 3:20; 1 Timothy 2:1-2; James 4:12; 1 Peter 2:12-17; 3:11-17; 4:12-19.
XVIII. The Family
God has ordained the family as the foundational institution of human society. It is composed of persons related to one another by marriage, blood, or adoption.
Marriage is the uniting of one man and one woman in covenant commitment for a lifetime. It is God's unique gift to reveal the union between Christ and His church and to provide for the man and the woman in marriage the framework for intimate companionship, the channel of sexual expression according to biblical standards, and the means for procreation of the human race.
The husband and wife are of equal worth before God, since both are created in God's image. The marriage relationship models the way God relates to His people. A husband is to love his wife as Christ loved the church. He has the God-given responsibility to provide for, to protect, and to lead his family. A wife is to submit herself graciously to the servant leadership of her husband even as the church willingly submits to the headship of Christ. She, being in the image of God as is her husband and thus equal to him, has the God-given responsibility to respect her husband and to serve as his helper in managing the household and nurturing the next generation.
Children, from the moment of conception, are a blessing and heritage from the Lord. Parents are to demonstrate to their children God's pattern for marriage. Parents are to teach their children spiritual and moral values and to lead them, through consistent lifestyle example and loving discipline, to make choices based on biblical truth. Children are to honor and obey their parents.
Genesis 1:26-28; 2:15-25; 3:1-20; Exodus 20:12; Deuteronomy 6:4-9; Joshua 24:15; 1 Samuel 1:26-28; Psalms 51:5; 78:1-8; 127; 128; 139:13-16; Proverbs 1:8; 5:15-20; 6:20-22; 12:4; 13:24; 14:1; 17:6; 18:22; 22:6,15; 23:13-14; 24:3; 29:15,17; 31:10-31; Ecclesiastes 4:9-12; 9:9; Malachi 2:14-16; Matthew 5:31-32; 18:2-5; 19:3-9; Mark 10:6-12; Romans 1:18-32; 1 Corinthians 7:1-16; Ephesians 5:21-33; 6:1-4; Colossians 3:18-21; 1 Timothy 5:8,14; 2 Timothy 1:3-5; Titus 2:3-5; Hebrews 13:4; 1 Peter 3:1-7.

http://www.sbc.net/bfm/bfm2000.asp Copyright © 1999-2013, Southern Baptist Convention. All Rights Reserved.

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Exhibit B-5

Case 4:12-cv-03009 Document 70-2 Filed in TXSD on 08/30/13 Page 38 of 53
THE THREAT TO RELIGIOUS FREEDOM: THE OBAMA ADMINISTRATION’S CONTRACEPTIVES MANDATE
THE ISSUE: HEALTH AND HUMAN SERVICES MANDATE VIOLATES RELIGIOUS FREEDOM
Under a regulation issued in January 2012 by the U.S. Department of Health and Human Services (HHS), nearly all insurance plans will be forced to provide their employees with free access to all FDA-approved contraceptives. This mandate includes coverage of abortion-inducing drugs like ella and Plan B (the “morning after” pill), abortion-causing IUDs, and sterilization. This mandate will force millions of Southern Baptists and other people of faith to violate their God-given and constitutionally-protected freedom of religion and conscience.
HOW THE HHS MANDATE TRAMPLES RELIGIOUS FREEDOM
Not only does the Patient Protection and Affordable Care Act mark the first time the U.S. government has forced citizens to purchase a product (health insurance), the HHS contraceptives mandate marks the first time people of faith have been forced by the government to purchase products that violate their consciences.
A MATTER OF CONSCIENCE AND RELIGIOUS FREEDOM
Some people say this is about contraception. It is not. Many Southern Baptists accept the use of non-abortive contraceptives within marriage. The HHS mandate goes far beyond that. It requires that all insurance plans provide coverage for abortioncausing products. This means employers, including faith-based organizations, must make insurance plans available to their employees in violation of their religious beliefs. It also means that either the employers or the employees will be required to pay for these products through their premium payments.
In effect, the Obama administration has declared that religious conviction about abortion is not an acceptable reason for exemption from this requirement. While the presenting offense is about abortion, the dominant issue is the government’s determination to violate the constitutionally-protected freedom of conscience. No one should be forced by the government to buy or subsidize products that result in the killing of innocent human beings in violation of their consciences. What is at stake is whether our nation will protect our God-given and constitutionally-protected freedom of religion and conscience fought for by our Baptist forebears.
LIMITED EXEMPTIONS
The Obama administration’s very narrow religious exemption means that most religious groups will be required to provide access to contraceptives, including ones that cause abortions. Even under a rule proposed in January 2013, the religious exemption may not include organizations such as local Christian schools and soup kitchens or larger entities such as Christian universities that are not expressly tied to a house of worship. Institutions not covered by the narrow exemption will be forced to choose one of three untenable options:
 Obey the law at the expense of their conscience.  Cease providing coverage—which would force the employees of these religious institutions to obtain coverage with
offensive provisions and could subject the religious institution employer to fines if it is considered a large employer under applicable rules.  Provide coverage but without complying with the HHS mandate that assaults the religious institution’s conscience— which could result in fines to participants if their coverage through the religious institution employer is noncompliant.
LIMITED ACCOMMODATIONS
According to the original mandate, the only accommodation afforded religious institutions was a one-year extension to comply. Practically, this meant religious employers morally opposed to the mandate were granted an additional year before they must begin violating their consciences. That one-year extension ends Aug. 1, 2013.
Main Office • 901 Commerce Street, Suite 550, Nashville, TN 37203 • phone 615.244.2495 • fax 615.242.0065 Leland House on Capitol Hill • 505 Second Street, N.E., Washington, D.C., 20002 • phone 202.547.8105 • fax 202.547.8165
erlc.com

Case 4:12-cv-03009 Document 70-2 Filed in TXSD on 08/30/13 Page 39 of 53
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NO COMPROMISE IN FORCE
On multiple occasions, President Obama announced so-called “compromises.” One proposal was to supposedly exempt religiously-affiliated employers opposed to the mandate by allowing them to shift the burden of covering contraceptives and abortifacients to their insurance companies. This was merely an accounting gimmick. Employers would still have to make abortion-causing products available in the plans they offer their employees, and the insurance companies would be recovering the cost of these products indirectly through the premiums they charge. These so-called compromises were never formally adopted. Yet even if any of the president’s “compromises” are adopted by HHS, the violation of constitutionallyprotected religious conscience remains.
In January 2013, HHS issued a “Notice of Proposed Rule Making” or NPRM. That proposed rule would provide relief for a slightly larger category of houses of worship and their integrated auxiliaries. This does nothing to provide relief for institutions which fall outside the administration’s narrow definition of “religious institution.” This includes many hospitals, universities, businesses, and schools. As of June 2013, more than 60 lawsuits have been filed challenging the mandate.
DIRECTLY IMPACTS SELF-INSURED RELIGIOUS INSTITUTIONS
Neither the current HHS rule nor the so-called “compromise” provides an exemption for religious employers that self-insure, which means they serve as the source of benefit payments instead of contracting with a third party. That includes GuideStone Financial Resources, the Southern Baptist Convention’s medical plan provider covering tens of thousands of pastors, church workers, professors, secretaries, social workers, missionaries, other agency workers, and their families. The HHS mandate reflects a sobering disregard for the unique and historic structure and role of self-insured medical programs like GuideStone and other large and established church health plans, as well as a shocking encroachment on religious freedom.
DIRECTLY IMPACTS PEOPLE OF FAITH
If the HHS mandate is not overturned or changed, many employers whose consciences are violated will have to stop providing insurance for their employees. As a result, when these employees seek to purchase their own insurance plans, they will find that the Obama administration’s mandate requires every insurance plan to pay for these abortion-causing products and services. This will mean that all of us whose consciences are violated by this morally reprehensible mandate will be forced to choose between paying for these products and services, whether we use them or not, or not having insurance for ourselves and our families and paying a government fine for not having insurance.
UPSETS CHURCH AND STATE BALANCE
In recent decades, most conflicts over the church-state relationship have had to do with the Establishment Clause of the First Amendment, with debates about the appropriate role of faith in public life. The HHS mandate is the culmination of a shift in church-state relations that has been emerging over the last decade or so, in which the conflict has gone from potential violations of the Establishment Clause to actual violations of the Free Exercise Clause. The HHS mandate is a direct assault on how people of faith can conduct their own lives according to the dictates of their consciences. The mandate puts the federal government in the position of imposing its will on the conscience by executive edict, casting aside individual conscience and religious freedom.
SETS DANGEROUS PRECEDENT
If the federal government can force religious employers and people of faith to purchase products that offend their faith and conscience, what can’t it force them to do?
THE SOLUTION: RESTORE RELIGIOUS FREEDOM WITH RESPECT FOR RIGHTS OF CONSCIENCE ACT
Jesus instructed us to “render to Caesar what is Caesar’s.” How now shall we respond when Caesar demands what is God’s?
An effort to protect the freedoms of religion and conscience is taking form on Capitol Hill as the Health Care Conscience Rights Act (H.R. 940 / S. 1204). This would safeguard employers and individuals from being forced to violate their religious convictions on contraceptives and abortion-inducing drugs under health care.
With our God-given and constitutionally-protected freedoms of religion and conscience at stake, the church cannot afford to be silent.
Main Office • 901 Commerce Street, Suite 550, Nashville, TN 37203 • phone 615.244.2495 • fax 615.242.0065 Leland House on Capitol Hill • 505 Second Street, N.E., Washington, D.C., 20002 • phone 202.547.8105 • fax 202.547.8165
erlc.com

Case 4:12-cv-03009 Document 70-2 Filed in TXSD on 08/30/13 Page 40 of 53
Exhibit B-6

Group

Plans

HeaCltahse C4:1h2o-civc-0e3002900D0oc:uGmeuntid70e-2StFoilendein

TXSD

on

08/30/13 Page 41 of 53 Coverage Period:

01/01/2013

–

12/31/2013

Summary of Benefits and Coverage: What this Plan Covers & What it Costs Coverage for: Individual/Family | Plan Type: PPO

This is only a summary. If you want more detail about your coverage and costs, you can get the complete terms in the policy or plan
document at www.GuideStone.org/Summaries or by calling 1-888-98-GUIDE (1-888-984-8433).

Important Questions
What is the overall deductible?
Are there other deductibles for specific services?
Is there an out–of– pocket limit on my expenses?
What is not included in the out–of–pocket limit? Is there an overall annual limit on what the plan pays?
Does this plan use a network of providers?
Do I need a referral to see a specialist? Are there services this plan doesn’t cover?

Answers
In-network: $2,000 person / $4,000 family. Out-of-network: $4,000 person / $8,000 family.
Doesn’t apply to preventive care and co-pays.
No.
Yes. For in-network:
$5,000 person / family.
For out-of-network:
$10,000 person / family.
Premiums, balance-billed charges, health care this plan doesn’t cover, deductibles and co-pays.
No.
Yes. See www.highmarkbcbs.com or call 1-800-810-2583 for a list of participating providers.
No. You don’t need a referral to see a specialist.
Yes.

Why this Matters:
You must pay all the costs up to the deductible amount before this plan begins to pay for covered services you use. Check your policy or plan document to see when the deductible starts over (usually, but not always, January 1st). See the chart starting on page 2 for how much you pay for covered services after you meet the deductible.
You don’t have to meet deductibles for specific services, but see the chart starting on page 2 for other costs for services this plan covers.
The out-of-pocket limit is the most you could pay during a coverage period (usually one year) for your share of the cost of covered services. This limit helps you plan for health care expenses.
Even though you pay these expenses, they don’t count toward the out-of-pocket limit.
The chart starting on page 2 describes any limits on what the plan will pay for specific covered services, such as office visits.
If you use an in-network doctor or other health care provider, this plan will pay some or all of the costs of covered services. Be aware, your in-network doctor or hospital may use an out-of-network provider for some services. Plans use the term in-network, preferred, or participating for providers in their network. See the chart starting on page 2 for how this plan pays different kinds of providers.
You can see the specialist you choose without permission from this plan.
Some of the services this plan doesn’t cover are listed on page 4. See your policy or plan document for additional information about excluded services.

Questions: Call 1-888-98-GUIDE (1-888-984-8433) or visit us at www.GuideStoneInsurance.org. If you aren’t clear about any of the bolded terms used in this form, see the Glossary. You can view the Glossary at www.GuideStone.org/Summaries or call 1-888-98-GUIDE (1-888-984-8433) to request a copy.

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x Co-payments are fixed dollar amounts (for example, $15) you pay for covered health care, usually when you receive the service.
x Co-insurance is your share of the costs of a covered service, calculated as a percent of the allowed amount for the service. For example, if
the plan’s allowed amount for an overnight hospital stay is $1,000, your co-insurance payment of 20% would be $200. This may change if you haven’t met your deductible.
x The amount the plan pays for covered services is based on the allowed amount. If an out-of-network provider charges more than the
allowed amount, you may have to pay the difference. For example, if an out-of-network hospital charges $1,500 for an overnight stay and the allowed amount is $1,000, you may have to pay the $500 difference. (This is called balance billing.)
x This plan may encourage you to use in-network providers by charging you lower deductibles, co-payments and co-insurance amounts.

Common Medical Event

Services You May Need

Primary care visit to treat an injury or illness

If you visit a health care provider’s office or clinic

Specialist visit Other practitioner office visit

Preventive care/screening/immunization

If you have a test

Diagnostic test (x-ray, blood work) Imaging (CT/PET scans, MRIs)

If you need drugs to treat your illness or condition

Generic drugs Preferred brand drugs

More information about prescription drug coverage is available at www.express-scripts.com

Non-preferred brand drugs Specialty drugs

Your cost if you use an

In-network Provider

Out-of-network Provider

$25 co-pay/visit 50% co-insurance

$45 co-pay/visit
$45 co-pay for chiropractor

50% co-insurance
50% co-insurance for chiropractor

No charge

Not covered

20% co-insurance 50% co-insurance

20% co-insurance
$15 co-pay (retail)/ $35 co-pay (mail order)
$35 co-pay (retail)/ $90 co-pay (mail order)
$50 co-pay (retail)/ $125 co-pay (mail order)
$50 co-pay (mail order only)

50% co-insurance
100% of drug cost with reimbursement at plan costs upon manual claim form submission.

Limitations & Exceptions
Includes one comprehensive annual eye exam. ----------------------none------------------Limited to 20 visits per coverage period. See Preventive Care Schedule for covered services in-network. Abortive services and certain contraceptives are not covered. If performed in a primary care or specialist office, primary care or specialist co-pay applies. ----------------------none-------------------
Covers up to a 30-day supply (retail) and a 90-day supply (mail order). You must pay the generic co-payment and the difference in the cost between the preferred/non-preferred drug and its generic equivalent if available. Certain contraceptives are not covered.
Covers up to a 30-day supply.
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Excluded Services & Other Covered Services:

Services Your Plan Does NOT Cover (This isn’t a complete list. Check your policy or plan document for other excluded services.)

x Acupuncture x Certain contraceptives x Cosmetic surgery x Dental care (Adult) x Elective abortion

x Experimental or investigational treatment x Hearing aids x Infertility treatment x Long-term care

x Private-duty nursing x Private hospital room x Routine foot care x Weight loss program

Other Covered Services (This isn’t a complete list. Check your policy or plan document for other covered services and your costs for these services.)

x Bariatric surgery

x Chiropractic care — limited to 20 visits per coverage period

x Non-emergency care when traveling outside the U.S.

Your Rights to Continue Coverage:
If you lose coverage under the plan, then, depending upon the circumstances, Federal and State laws may provide protections that allow you to keep health coverage. Any such rights may be limited in duration and will require you to pay a premium, which may be significantly higher than the premium you pay while covered under the plan. Other limitations on your rights to continue coverage may also apply.
For more information on your rights to continue coverage, contact the plan at 1-888-98-GUIDE (1-888-984-8433). You may also contact the U.S. Department of Labor, Employee Benefits Security Administration at 1-866-444-3272 or www.dol.gov/ebsa, or the U.S. Department of Health and Human Services at 1-877-267-2323 x61565 or www.cciio.cms.gov.
Your Grievance and Appeals Rights:
If you have a complaint or are dissatisfied with a denial of coverage for claims under your plan, you may be able to appeal or file a grievance. For questions about your rights, this notice, or assistance, you can contact: 1-866-472-0924 or visit www.highmarkbcbs.com.
Spanish Assistance (Asistencia en Español):
Para obtener asistencia en Español, llame al 1-888-98-GUIDE (1-888-984-8433).

––––––––––––––––––––––To see examples of how this plan might cover costs for a sample medical situation, see the next page.–––––––––––––––––––––– 4 of 6

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Exhibit B-7

Case 4:12-cv-03009 Document 70-2 Filed in TXSD on 08/30/13 Page 45 of 53

Highmark Blue Cross Blue Shield

Preventive Care Schedule

Effective January 1, 2013
The plan pays for preventive care only when given by a network provider. For in-network preventive care, use your Highmark Blue Cross Blue Shield ID card.

Well child visits (birth – age 18)

Preventive schedule