Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 1 of 51
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. __________________ Dr. JAMES C. DOBSON, and FAMILY TALK,
Plaintiff, v. KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; THOMAS E. PEREZ, in his official capacity as Secretary of the United States Department of Labor; JACOB J. LEW, in his official capacity as Secretary of the United States Department of the Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; and UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants.
VERIFIED COMPLAINT
Plaintiffs Dr. James C. Dobson and Family Talk, by their attorneys, state as follows: NATURE OF THE ACTION
1. This lawsuit challenges the 2010 Patient Protection and Affordable Care Act and implementing regulations issued by Defendants, that together compel religious employers like Family Talk either to include in its employee healthcare plan free coverage for drugs and devices
1

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 2 of 51
that may induce abortion, cause its third party administrator to provide the same, or pay ruinous fines. This requirement, including its basis under statutes, regulations, agency decisions, and penalties, is referred to hereinafter as “the Mandate.”
2. Dr. James C. Dobson is a believing and practicing Evangelical Christian. Dr. Dobson is the Founder, President and Chairman of the Board of Directors of Family Talk. Dr. Dobson and Family Talk morally reject, as an abortion, the prevention of implantation of an early human embryo, and therefore they oppose the facilitation of “contraceptives” that can cause such an effect.
3. Family Talk is a religious corporation “formed for the express purposes of spreading and propagating the Gospel of Jesus Christ and to provide Christ-oriented advice, counsel, guidance and education to parents and children and to speak to cultural issues that affect the family.” Family Talk believes that God has condemned the intentional destruction of innocent human life. Family Talk holds, as a matter of religious conviction, that it would be sinful and immoral for the organization intentionally to participate in, pay for, facilitate, enable, or otherwise support access to abortion or early destruction of human life. Family Talk holds that one of the prohibitions of the Ten Commandments (“thou shalt not murder”) precludes them from facilitating, assisting in, or enabling the coverage of arrangements for payments for drugs that can and do destroy very young human beings in the womb.
4. Family Talk does not qualify for the extraordinarily narrow religious exemption from the regulations. That exemption protects only “churches, their integrated auxiliaries, and conventions or associations or churches” and “the exclusively religious activities of any religious order.”
2

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 3 of 51
5. For purely secular reasons, the government has elected not to impose the challenged regulations upon thousands of other organizations. Employers with “grandfathered” plans and favored others are exempt from these rules.
6. Defendants have offered entities like Plaintiffs a so-called “accommodation” of their religious beliefs and practices. However, the alleged accommodation does not eliminate Plaintiffs’ moral and religious objections to the regulations. The accommodation conscripts Plaintiffs into the government’s scheme, forcing them to obtain a third-party claims administrator and to submit a form that specifically triggers the third-party administrator’s duty to arrange payment for the objectionable drugs. Such coverage will thus apply to Plaintiffs’ own employees (including Dr. Dobson) as a direct consequence of their employment with Plaintiffs and of their participation in the health insurance benefits Plaintiffs provide them.
7. Under the supposed accommodation, Defendants continue to treat entities like Family Talk as second-class religious organizations, not entitled to the same religious freedom rights as substantially similar entities that qualify for the exemption. Defendants’ rationale for entirely exempting churches and integrated auxiliaries from the regulations is that their employees are likely to share their religious convictions. That rationale applies equally to Family Talk. Yet, Defendants refuse to exempt Family Talk, offering only a superficial “accommodation” that falls woefully short of addressing and resolving Plaintiffs’ moral and religious objections.
8. If Plaintiffs follow their religious convictions and decline to participate in the government’s scheme, they will face, among other injuries, enormous fines that will cripple their operations.
3

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 4 of 51
9. By placing Plaintiffs in this untenable position, Defendants have violated the Religious Freedom Restoration Act; the Establishment, Free Exercise, and Free Speech Clauses of the First Amendment to the United States Constitution; the Due Process Clause of the Fifth Amendment; and the Administrative Procedure Act.
10. Plaintiffs therefore respectfully request that this Court vindicate their rights through declaratory and preliminary and permanent injunctive relief, among other remedies.
IDENTIFICATION OF PARTIES AND JURISDICTION 11. Plaintiff James C. Dobson is the Founder, President, and Chairman of the Board of Family Talk. He is a resident of Colorado Springs, Colorado. He makes, implements, and oversees decisions relating to Family Talk’s health insurance plan. 12. Plaintiff Family Talk is a California nonprofit religious corporation whose offices are located in Colorado Springs, Colorado. 13. Defendants are appointed officials of the United States government and United States executive branch agencies responsible for issuing and enforcing the Mandate. 14. Defendant Kathleen Sebelius is the Secretary of the United States Department of Health and Human Services (HHS). In this capacity, she has responsibility for the operation and management of HHS. Sebelius is sued in her official capacity only. 15. Defendant HHS is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate. 16. Defendant Thomas E. Perez is the Secretary of the United States Department of Labor. In this capacity, he has responsibility for the operation and management of the Department of Labor. Perez is sued in his official capacity only.
4

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 5 of 51
17. Defendant Department of Labor is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
18. Defendant Jacob J. Lew is the Secretary of the Department of the Treasury. In this capacity, he has responsibility for the operation and management of the Department. Lew is sued in his official capacity only.
19. Defendant Department of Treasury is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
20. This action arises under the Constitution and laws of the United States. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 & 1361, jurisdiction to render declaratory and injunctive relief under 28 U.S.C. §§ 2201 & 2202, 42 U.S.C. § 2000bb-1, 5 U.S.C. § 702, and Fed. R. Civ. P. 65, and to award reasonable attorney’s fees and costs under the Equal Access to Justice Act, 28 U.S.C. § 2412, and under 42 U.S.C. § 1988.
21. 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 at least one of the Plaintiffs is located in this district.
FACTUAL ALLEGATIONS I. Plaintiffs’ Religious Beliefs and Provision of Religious Services 22. Family Talk was established by Dr. Dobson in 2009 for the “express purpose of spreading and propagating the Gospel of Jesus Christ and specifically to provide Christ-oriented advice, counsel, guidance and education to parents and children and to speak to cultural issues that
5

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 6 of 51
affect the family.” (Certificate of Amended and Restated Articles of Incorporation of Family Talk, ¶ 2; Family Talk Bylaws, Article I).
23. The centerpiece of Plaintiffs’ religious work is a 30-minute daily radio broadcast entitled “Dr. James Dobson’s Family Talk” that is “strategically designed to reach the younger generation with the Judeo-Christian worldview of the family.” DR. DOBSON’S MINISTRY & HISTORY, http://drjamesdobson.org/about/history (last visited Dec. 4, 2013).
24. Plaintiffs also operate a website and publish a monthly newsletter to communicate a Christian message to families.
25. Family Talk’s Mission Statement is “[t]o help preserve and promote the institution of the family and the biblical principles on which it is based, and to seek to introduce as many people as possible to the gospel of Jesus Christ. Specifically, the focus of the ministry is on marriage, parenthood, evangelism, the sanctity of human life and encouraging righteousness in the culture.” WHAT WE BELIEVE, http://drjamesdobson.org/ about/Statement-of-Faith (last visited Dec. 4, 2013).
26. Reaffirming its biblically based, Christ-centered mission, Family Talk has adopted a Statement of Faith that reads:
Family Talk believes: • The Bible to be the inspired, only, infallible, authoritative Word of God. • That there is one God, eternally existent in three persons: Father, Son and Holy
Spirit; • In the deity of our Lord Jesus Christ, in His virgin birth, in His sinless life, in His
miracles, in His vicarious and atoning death through His shed blood, in His bodily
6

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 7 of 51
resurrection, in His ascension to the right hand of the Father and in his personal return in power and glory; • That for salvation of lost and sinful men and women, regeneration by the Holy Spirit is absolutely essential; • In the present ministry of the Holy Spirit by whose indwelling the Christian is enabled to live a godly life; • In the resurrection of both the saved and the lost, they who are saved unto the resurrection of life and they who are lost unto the resurrection of damnation; • And in the spiritual unity of believers in our Lord Jesus Christ. WHAT WE BELIEVE, http://drjamesdobson.org/about/Statement-of-Faith (last visited Dec. 4, 2013). 27. Under the direction of Dr. Dobson, Family Talk draws its employees from among those who profess and demonstrate a strong commitment to the Christian faith. 28. As part of Family Talk’s employment application, a prospective employee must provide a statement describing the applicant’s “spiritual journey and where you are today in your walk with the LORD Jesus Christ.” (Family Talk Application for Employment at 3). The applicant must also acknowledge that he or she has “read, understand[s], and agree[s] with all parts of the Family Talk Statement of Faith and Mission Statement” and affirm that “[i]f hired, I agree to uphold these beliefs in my personal, daily life and to help Family Talk pursue its mission.” (Id. at 5).
7

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 8 of 51
29. Family Talk’s Employee Manual explains that “Family Talk expressly reserves the right, as a religious corporation, to base its hiring practices on the religious affiliation, Christian lifestyle, and conviction of its employees.” (Family Talk Employee Manual at 8).
30. Family Talk has 28 full-time employees. II. The Religious Beliefs of Family Talk Regarding Abortion 31. One of the religious and moral teachings that Plaintiffs embrace, based on the belief that the Bible is the authoritative Word of God, is that a preborn child is, from the moment of conception, a human being created in the image of God. See, e.g., Ps. 51:5; 139:13; Luke 1:41-44; 18:15; 2 Tim. 3:15. By “conception” Plaintiffs mean when the sperm and egg unite, also referred to as fertilization. 32. Based on the Bible’s religious and moral teachings, Plaintiffs sincerely believe that the termination of the life of a preborn child by, among other means, abortion-inducing drugs and devices, and related education and counseling, including by means of acting after fertilization to prevent the newly formed embryo from implanting into his or her mother’s uterus, is an intrinsic evil and a sin against God for which Plaintiffs will be held accountable. Therefore, abortion and any abortifacient drug, device, or procedure that may terminate the life of a newly formed embryo by preventing or disrupting its implantation is morally wrong to Plaintiffs. 33. Dr. Dobson, who is the Founder, President, and Chairman of the Board of Directors of Family Talk, seeks to conduct the operations of Family Talk with integrity and in compliance with these religious and pro-life beliefs. Family Talk, by its principles, decisions, and policies, also seeks to conduct its operations in compliance with these beliefs.
8

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 9 of 51
34. Consequently, Plaintiffs believe that it would be immoral for them to knowingly and intentionally participate in, pay for, facilitate, enable, or otherwise support abortion-inducing or implantation-preventing drugs, abortifacient items, and related education and counseling, through the provision of coverage or causing arrangements for payments as required by the HHS Mandate.
35. Plaintiffs have repeatedly affirmed their unwavering commitment to the sanctity of human life.
36. Family Talk’s Mission Statement emphasizes that one of the organization’s focuses is on “the sanctity of human life.” WHAT WE BELIEVE, http://drjamesdobson.org/about/ Statement-of-Faith (last visited Dec. 4, 2013).
37. On the Family Talk website, in response to a question on whether it is ethical to harvest tissue from fetuses for research, Dr. Dobson emphasized that “I will oppose it for as long as I have breath within my body” because it violates the fundamental respect for the sanctity of life. OKAY TO HARVEST FETAL TISSUE FOR RESEARCH?, http://drjamesdobson.org/Solid-Answers/ Answers?a=cd25b823-3ba1-4855-8265-61a2c5506b6f (last visited Dec. 4, 2013).
38. Similarly, when asked about whether civil disobedience is a permissible response to prevent abortion, Dr. Dobson responded that “[w]e are law-abiding people and do not advocate violence or obscene and disrespectful behavior, but to be sure, we will follow that higher moral code nonviolently to rescue innocent, defenseless babies.” DR. DOBSON’S POSITION ON CIVIL DISOBEDIENCE TO PREVENT ABORTION, http://drjamesdobson.org/Solid-Answers/ Answers?a=f7a17816-4cfc-45f9-b8f3-401ab4092573 (last visited Dec. 4, 2013).
9

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 10 of 51
39. For the past three years during the month of January, Plaintiffs have dedicated an entire week of their daily radio show to pro-life issues.
40. For example, during the week of January 23–27, 2012, the Family Talk radio show focused each day’s broadcast on the Sanctity of Life with titles such as “The Value of One Life, Part 1 and Part 2” and “All Life is Sacred.” See http://drjamesdobson.org/Broadcasts/ archive?YEAR=2012&MONTH=1 (last visited Dec. 4, 2013).
41. In fact, during the introduction to the January 25, 2012 broadcast, Dr. Dobson explained that “[t]he sanctity of human life is one of the pillars, one of the core principles, of what we believe in, what we are trying to do here as a ministry. It is an integral part of my deepest beliefs.” See http://drjamesdobson.org/Broadcasts/Broadcast?i=2f4d05c5-b69c-4f62b5f3-998ca02e6bcc (last visited Dec. 4, 2013).
42. Plaintiffs again dedicated a week of their radio shows to the Sanctity of Life between January 21–25, 2013. Topics included Dr. Dobson’s interview with an individual who was nearly aborted by his parents. Later in the week, Dr. Dobson’s son, Ryan Dobson, interviewed pro-life advocate Lila Rose who encouraged listeners to become more involved in seeking to end the practice of abortion. See http://drjamesdobson.org/Broadcasts/archive?YEAR=2013 &MONTH=1 (last visited Dec. 4, 2013).
43. In sum, Plaintiffs not only hold sincere religious beliefs about the intrinsic evil of abortion, but they also regularly and consistently promote this belief through their radio show, newsletter, website, and other activities and communications to the public.
10

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 11 of 51
IV. Plaintiffs’ Group Health Insurance Plans 44. To fulfill its Christian beliefs and commitments and organizational mission, Family Talk promotes the spiritual and physical well-being and health of its employees. This includes the provision of generous health insurance to its employees. 45. Approximately 23 Family Talk employees are enrolled in its health insurance plans. Approximately 37 dependents of employees are covered. The plans thus cover approximately 60 individuals. Dr. Dobson and his family are among those covered by the plan. 46. Family Talk maintains a partially self-insured group plan for its employees, in which the organization acts as its own insurer. Family Talk has contracted with a stop-loss provider and a third-party administrator. 47. The plan year for Family Talk’s employee health insurance coverage begins on May 1 of each year. 48. Family Talk’s employee health plan does not possess “grandfathered” status because it and its precursors did not exist until April 1, 2010, shortly after Family Talk was founded. 49. Consistent with its religious commitments, Family Talk’s employee health coverage specifically excludes surgical abortion, as well as abortion-inducing drugs or devices that may destroy the life of an embryo after fertilization either pre- or post- implantation, specifically referencing IUDs and “emergency contraception” such as Plan B and Ella. The plan also excludes coverage for any counseling or referrals to promote or refer for surgical abortions, such abortion-inducing drugs, and IUDs.
11

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 12 of 51
V. The ACA and Defendants’ Mandate Thereunder 50. In March 2010, Congress passed, and President Obama signed, the Patient Protection and Affordable Care Act, Pub. L. No. 111-148 (March 23, 2010), and the Health Care and Education Reconciliation Act, Pub. L. No. 11-152 (March 30, 2010), together known as the “Affordable Care Act” (ACA). 51. The ACA regulates the national health insurance market by directly regulating “group health plans” and “health insurance issuers.” 52. One ACA provision requires that any “group health plan” or “health insurance issuer offering group or individual health insurance coverage” provide coverage for certain preventive care services. 42 U.S.C. § 300gg-13(a). 53. These services include screenings, medications, and counseling given an “A” or “B” rating by the United States Preventive Services Task Force; immunizations recommended by the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention; and “preventive care and screenings” specific to infants, children, adolescents, and women that are subsequently “provided for in comprehensive guidelines supported by the Health Resources and Services Administration,” an HHS sub-agency. 42 U.S.C. § 300gg-13(a)(1)–(4). 54. These services must be covered without “any cost sharing.” 42 U.S.C. § 300gg-13(a). The Interim Final Rule 55. On July 19, 2010, HHS published an interim final rule regarding the ACA’s requirement that certain preventive services be covered without cost sharing. 75 Fed. Reg. 41726, 41728 (2010).
12

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 13 of 51
56. HHS issued the interim final rule without a prior notice of rulemaking or opportunity for public comment. Defendants determined for themselves that “it would be impracticable and contrary to the public interest to delay putting the provisions . . . in place until a full public notice and comment process was completed.” 75 Fed. Reg. at 41730.
57. Although Defendants suggested in the Interim Final Rule that they would solicit public comments after implementation, they stressed that “provisions of the Affordable Care Act protect significant rights” and therefore it was expedient that “participants, beneficiaries, insureds, plan sponsors, and issuers have certainty about their rights and responsibilities.” Id.
58. Defendants stated they would later “provide the public with an opportunity for comment, but without delaying the effective date of the regulations,” demonstrating their intent to impose the regulations regardless of the legal flaws or general opposition that might be manifest in public comments. Id.
59. In addition to reiterating the ACA’s preventive services coverage requirements, the Interim Final Rule provided further guidance concerning the Act’s restriction on cost sharing.
60. The Interim Final Rule makes clear that “cost sharing” refers to “out-of-pocket” expenses for plan participants and beneficiaries. 75 Fed. Reg. at 41730.
61. The Interim Final Rule acknowledges that, without cost sharing, expenses “previously paid out-of-pocket” would “now be covered by group health plans and issuers” and that those expenses would, in turn, result in “higher average premiums for all enrollees.” Id.; see also id. at 41737 (“Such a transfer of costs could be expected to lead to an increase in premiums.”)
62. After the Interim Final Rule was issued, numerous commenters warned against the potential conscience implications of requiring religious individuals and organizations to include
13

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 14 of 51
certain kinds of services—specifically contraception, sterilization, and abortion services—in their health care plans.
63. HHS directed a private health policy organization, the Institute of Medicine (IOM), to make recommendations regarding which drugs, procedures, and services all health plans should cover as preventive care for women.
64. In developing its guidelines, IOM invited a select number of groups to make presentations on the preventive care that should be included in health plans by force of law. These were the Guttmacher Institute, the American Congress of Obstetricians and Gynecologists (ACOG), John Santelli, the National Women’s Law Center, National Women’s Health Network, Planned Parenthood Federation of America, and Sara Rosenbaum.
65. No religious groups or other groups that opposed government-mandated coverage of contraception, sterilization, abortion, and related education and counseling were among the invited presenters.
66. On July 19, 2011, the IOM published its preventive care guidelines for women, including a recommendation that preventive services include “[a]ll Food and Drug Administration approved contraceptive methods [and] sterilization procedures” and related “patient education and counseling for women with reproductive capacity.” Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps, at 102-10 and Recommendation 5.5 (July 19, 2011).
67. FDA-approved contraceptive methods include birth-control pills; prescription contraception; abortifacient birth control methods (which may destroy an embryo after fertilization either pre- or post- implantation), including devices such as IUDs, emergency contraception such as Plan B (also known as the “morning-after pill”) and its chemical cognates,
14

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 15 of 51
and ulipristal (also known as “ella” or the “week-after pill”); and other drugs, devices, and procedures.
68. Some of these drugs and devices—including “emergency contraceptives” such as Plan B and ella and IUDs—are known abortifacients, in that they can cause the death of an embryo by preventing it from implanting in the wall of the uterus.
69. Indeed, the FDA’s own Birth Control Guide states that Plan B and its cognates, ella, and IUDs can work by “preventing attachment (implantation) to the womb (uterus).” FDA, Office of Women’s Health, Birth Control Guide at 16-18, available as Addendum to Brief of Appellants at 50, Hobby Lobby Stores Inc. v. Sebelius, No. 12-6294, ECF Doc. No. 010189999834 (10th Cir. filed Feb. 11, 2013).
70. The manufacturers of some of the drugs, methods, and devices in the category of “FDA-approved contraceptive methods” indicate that they can function to cause the demise of an early embryo.
71. The requirement for related “education and counseling” accompanying abortifacients, sterilization, and contraception necessarily covers education and counseling given in favor of such items, even though it might also include other education and counseling. Moreover, it is inherent in a medical provider’s decision to prescribe one of these items that she is taking the position that use of the item is in the patient’s best interests, and therefore her education and counseling related to the item will be in favor of its proper usage.
72. On August 1, 2011, a mere 13 days after IOM published its recommendations, HRSA issued guidelines adopting them in full. See http://www.hrsa.gov/womensguidelines (last visited Dec. 4, 2013).
15

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 16 of 51
73. Non-exempt, non-grandfathered insurance plans were required to provide coverage consistent with these guidelines in the first plan year beginning on or after August 1, 2012.
74. Any non-exempt employer providing a health insurance plan that omits any abortifacients, contraception, sterilization, or education and counseling for the same, is subject (because of the Mandate) to heavy fines up to $100 per employee per day, i.e., up to $36,500 per employee per year. The ACA also makes such employers vulnerable to lawsuits by the Secretary of Labor and by plan participants.
The Religious Employer Exemption 75. On the very same day HRSA rubber-stamped the IOM’s recommendations, HHS promulgated an additional interim final rule regarding the preventive services mandate. 76 Fed. Reg. 46621 (published Aug. 3, 2011). 76. This Second Interim Final Rule declared that HRSA possesses “discretion to exempt certain religious employers from the Guidelines where contraceptive services are concerned.” 76 Fed. Reg. 46621, 46623 (emphasis added). The term “religious employer” was restrictively defined as one that (1) has as its purpose the “inculcation of religious values”; (2) “primarily employs persons who share the religious tenets of the organization”; (3) “serves primarily persons who share the religious tenets of the organization”; and (4) “is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 76 Fed. Reg. at 46626 (emphasis added). 77. The statutory citations in the fourth prong of this test refer to “churches, their integrated auxiliaries, and conventions or associations of churches” and the “exclusively religious activities of any religious order.” 26 U.S.C. § 6033(a)(3).
16

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 17 of 51
78. The “religious employer” exemption was thus extremely narrow, limited to churches, their integrated auxiliaries, and religious orders, but only if (1) their purpose is to inculcate faith and (2) they hire and serve primarily people of their own faith tradition.
79. HRSA exercised its discretion to grant an exemption for religious employers via a footnote on its website listing the Women’s Preventive Services Guidelines. The footnote states that “guidelines concerning contraceptive methods and counseling described above do not apply to women who are participants or beneficiaries in group health plans sponsored by religious employers.” See http://www.hrsa.gov/womens guidelines.
80. Although religious organizations like Plaintiffs share the same religious beliefs and concerns as objecting churches, their integrated auxiliaries, and objecting religious orders, HHS deliberately ignored the regulation’s impact on Plaintiffs’ religious liberty, stating that the exemption sought only “to provide for a religious accommodation that respects the unique relationship between a house of worship and its employees in ministerial positions.” 76 Fed. Reg. 46621, 46623.
81. Therefore, the vast majority of religious non-profit organizations with conscientious objections to providing contraceptive or abortifacient services were excluded from the “religious employer” exemption.
82. Like the original Interim Final Rule, the Second Interim Final Rule was made effective immediately, without prior notice or an opportunity for public comment.
83. Defendants acknowledged that “while a general notice of proposed rulemaking and an opportunity for public comment is generally required before promulgation of regulations,” they
17

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 18 of 51
had “good cause” to conclude that public comment was “impracticable, unnecessary, or contrary to the public interest” in this instance. 76 Fed. Reg. at 46624.
84. Upon information and belief, after the Second Interim Final Rule was put into effect, over 100,000 comments were submitted opposing the narrow scope of the “religious employer” exemption and protesting the mandate’s gross infringement on the rights of religious individuals and organizations.
85. HHS did not take into account the concerns of religious organizations in the comments submitted before or after the Second Interim Rule was issued. HHS was unresponsive to numerous and well-grounded assertions that the Mandate violated statutory and constitutional protections of rights of conscience.
The Temporary Enforcement Safe Harbor 86. The public outcry for a broader religious employer exemption continued for many months. On January 20, 2012, HHS issued a press release acknowledging “the important concerns some have raised about religious liberty” and stating that religious objectors would be “provided an additional year . . . to comply with the new law.” See Jan. 20, 2012, Statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius, available at http://www.hhs.gov/news/press/2012pres/01/20120120a. html (last visited Dec. 4, 2013). 87. On February 10, 2012, HHS formally announced a “temporary enforcement safe harbor” for non-exempt nonprofit religious organizations that objected to covering contraceptive and abortifacient services.
18

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 19 of 51
88. HHS declared that it would not take any enforcement action against an eligible organization during the safe harbor period, which would extend until the first plan year beginning on or after August 1, 2013.
89. HHS also indicated it would develop and propose changes to the regulations in an effort to accommodate the religious liberty objections of non-exempt, nonprofit religious organizations following the expiration of the safe harbor.
90. Despite the safe harbor and HHS’s accompanying promises, on February 10, 2012, HHS announced a final rule “finalizing, without change,” the contraception, sterilization and abortifacient mandate and narrow religious employer exemption. 77 Fed. Reg. 8725-01 (published Feb. 15, 2012).
The Advance Notice of Proposed Rulemaking 91. On March 21, 2012, HHS issued an Advance Notice of Proposed Rulemaking (ANPRM), presenting “questions and ideas” to “help shape” a discussion of how to “maintain the provision of contraceptive coverage without cost sharing,” while accommodating the religious beliefs of non-exempt religious organizations. 77 Fed. Reg. 16501, 16503 (2012). 92. The ANPRM conceded that forcing religious organizations to “contract, arrange, or pay for” the objectionable contraceptive and abortifacient servicers would infringe their “religious liberty interests.” Id. (emphasis added). 93. The ANPRM proposed, in vague terms, that the “health insurance issuers” for objecting religious employers could be required to “assume the responsibility for the provision of contraceptive coverage without cost sharing.” Id.
19

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 20 of 51
94. For the first time, and contrary to the earlier definition of “cost sharing,” Defendants suggested in the ANPRM that insurers and third-party administrators could be prohibited from passing along their costs to the objecting religious organizations via increased premiums. See id.
95. “[A]pproximately 200,000 comments” were submitted in response to the ANPRM, 78 Fed. Reg. 8456, 8459, largely restating previous comments that the government’s proposals would not resolve conscientious objections, because the objecting religious organizations, by providing a health care plan in the first instance, would still be coerced to arrange for and facilitate access to morally objectionable services.
The Notice of Proposed Rulemaking 96. On February 1, 2013, HHS issued a Notice of Proposed Rulemaking (NPRM) purportedly addressing the comments submitted in response to the ANPRM. 78 Fed. Reg. 8456 (published Feb. 6, 2013). 97. The NPRM proposed two changes to the then-existing regulations. 78 Fed. Reg. 8456, 8458-59. 98. First, it proposed revising the religious employer exemption by eliminating the requirements that religious employers have the purpose of inculcating religious values and primarily employ and serve only persons of their same faith. 78 Fed. Reg. at 8461. 99. Under the NPRM’s proposal, a “religious employer” would be one “that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue] Code.” 78 Fed. Reg. at 8461.
20

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 21 of 51
100. HHS emphasized, however, that this proposal “would not expand the universe of employer plans that would qualify for the exemption beyond that which was intended in the 2012 final rules.” 78 Fed. Reg. 8456, 8461.
101. In other words, religious organizations like Family Talk that are not churches, integrated auxiliaries, or religious orders would continue to be denied the protection of the exemption.
102. Second, the NPRM followed up on HHS’s earlier-stated intention to “accommodate” non-exempt, nonprofit religious organizations by making them “designate” their insurers or third-party administrators to provide plan participants and beneficiaries with free access to contraceptive and abortifacient drugs and services.
103. The proposed “accommodation” did not resolve the concerns of religious organizations like Family Talk because it continued to force them to deliberately provide health insurance that would facilitate employees’ access to abortion-inducing drugs and devices and related education and counseling.
104. “[O]ver 400,000 comments” were submitted in response to the NPRM, 78 Fed. Reg. 39870, 39871, with religious organizations again overwhelmingly decrying the proposed “accommodation” as a gross violation of their religious liberty because it would conscript their health care plans as the main cog in the government’s scheme for expanding access to contraceptive and abortifacient services.
105. On April 8, 2013, the very day that the notice-and-comment period ended, Defendant Secretary Sebelius answered questions about the contraceptive and abortifacient services requirement in a presentation at Harvard University.
21

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 22 of 51
106. In her remarks, Secretary Sebelius stated: We have just completed the open comment period for the so-called accommodation, and by August 1st of this year, every employer will be covered by the law with one exception. Churches and church dioceses as employers are exempted from this benefit. But Catholic hospitals, Catholic universities, other religious entities will be providing coverage to their employees starting August 1st. . . . [A]s of August 1st, 2013, every employee who doesn’t work directly for a church or a diocese will be included in the benefit package. See The Forum at Harvard School of Public Health, A Conversation with Kathleen Sebelius, U.S. Secretary of Health and Human Services, Apr. 8, 2013, available at http://theforum.sph.harvard.edu/events/conversation-kathleen-sebelius/ (at 49:00) (emphasis added) (last visited Dec. 4, 2013). 107. Given the timing of these remarks, it is clear that Defendants gave no consideration to the comments submitted in response to the NPRM’s proposed “accommodation.” 108. Moreover, Secretary Sebelius’ remarks prove that objecting employers are in fact “providing coverage for” morally objectionable items in the health insurance plans they provide employees, even under the proposed accommodation. The Final Mandate 109. On June 28, 2013, Defendants issued a final rule (the “Final Mandate”), which ignores the objections repeatedly raised by religious organizations and others and continues to co-opt objecting employers into the government’s scheme of expanding free access to contraceptive and abortifacient services. 78 Fed. Reg. 39870 (2013). Defendants declared that the Final Mandate would be effective August 1, 2013, only one month after it was issued. 110. Under the Final Mandate, the discretionary “religious employer” exemption, which is still implemented via a footnote on the HRSA website, see http://www.hrsa.gov/womens
22

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 23 of 51
guidelines, remains limited to churches, integrated auxiliaries, and religious orders “organized and operate[d]” as nonprofit entities and “referred to in section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue] Code.” 78 Fed. Reg. at 39874.
111. All other organizations, including Plaintiffs, are denied the exemption’s protection. 112. Defendants attempt to justify the narrow religious exemption as follows: “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. 113. Although religious organizations like Plaintiffs share the same religious objection to the Mandate as churches, their integrated axillaries, and religious orders, Defendants have deliberately ignored the Mandate’s impact on their religious liberty by refusing to grant Plaintiffs and similar organizations an exemption from it. 114. Family Talk is a religious institution that adheres to biblical teachings regarding faith and morals, including its belief that all human life is sacred. Its employees choose to work at Family Talk because they share its religious beliefs and wish to help Family Talk further its religious mission. 115. Family Talk is thus just as likely as organizations that qualify for the “religious employer” exemption to employ individuals who are either of the same faith as Family Talk or adhere to the same religious objection to abortion-causing drugs and devices as Family Talk. Yet Defendants deny Family Talk the “religious employer” exemption while extending it to houses of worship, and they deny the ability of Family Talk employees to obtain health insurance without
23

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 24 of 51
paying into a plan that causes “free” access to payments for such drugs and devices, for themselves, their family members, and their fellow employees.
116. Defendants’ “religious employer” exemption divides the thousands of religious organizations that share a religious objection to the Mandate into those “religious enough” to qualify for an exemption (houses of worship) and those that are not (non-profits such as Family Talk).
117. The Final Mandate creates a separate “accommodation” for certain non-exempt religious organizations. 78 Fed. Reg. at 39874.
118. An organization is eligible for the accommodation if it (1) “[o]pposes providing coverage for some or all of the contraceptive services required”; (2) “is organized and operates as a nonprofit entity”; (3) “holds itself out as a religious organization”; and (4) “self-certifies that it satisfies the first three criteria,” and within that certification makes the assertions required by the Final Mandate. 78 Fed. Reg. at 39874.
119. Family Talk is eligible for the so-called accommodation. 120. The self-certification must be executed “prior to the beginning of the first plan year to which an accommodation is to apply.” 78 Fed. Reg. at 39875. 121. The Final Rule also extends the current Temporary Enforcement Safe Harbor through the end of 2013, only six months after the issuance of the Final Rule. 78 Fed. Reg. at 39889. 122. Thus, an eligible organization would need to execute the self-certification prior to its first plan year that begins on or after January 1, 2014, and deliver it to the organization’s insurer or third-party administrator.
24

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 25 of 51
123. If the organization has a self-insured plan, like Family Talk, it would deliver the executed self-certification to the plan’s third party administrator. 78 Fed. Reg. at 39875. But the certification that self-insured entities deliver to third party administrators is different than the certification delivered to insurers. The certification delivered to third party administrators requires that Family Talk certify, not only its religious objections, but also a designation that the “[o]bligations of the third party administrator” under ERISA include, by virtue of that designation, a fiduciary duty to provide promises of payments for the exact abortifacient items to which Family Talk objects. 78 Fed. Reg. at 39894–95.
124. Moreover, to comply with the Final Mandate, Family Talk is forbidden from speaking its pro-life religious beliefs to its third party administrator to urge it not to provide payments for drugs or devices that can prevent the implantation of early human embryos. “The eligible organization must not, directly or indirectly, seek to interfere with a third party administrator’s arrangements to provide or arrange separate payments for contraceptive services for participants or beneficiaries, and must not, directly or indirectly, seek to influence the third party administrator’s decision to make any such arrangements.” 78 Fed. Reg. at 39895.
125. If it elects to invoke the accommodation with respect to its employee plan, Plaintiffs would be required to execute the self-certification and deliver it to their plan’s third party administrator before May 1, 2014.
126. By delivering the self-certification to Family Talk’s third party administrator, Plaintiffs would explicitly trigger the third-party administrator’s provision of or arrangement for payments for the morally objectionable abortifacients. 78 Fed. Reg. 39892–93. These payments constitute coverage of the items to which Plaintiffs object, see, e.g., id. at 39872 (“the regulations
25

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 26 of 51
provide women with access to contraceptive coverage”), and are treated as coverage under consumer protection requirements of the Public Health Service Act and ERISA, id. at 39876. This coverage will not be contained in any insurance policy separate from Plaintiffs’ plan. See id.
127. By issuing the self-certification, Plaintiffs would be arranging and contracting for their third party administrator to provide the exact coverage or payments that Plaintiffs object to arranging, contracting for, and enabling, and that Defendants falsely declare their Final Mandate stops Plaintiffs from needing to contract or arrange for. Plaintiffs would also be identifying their participating employees to the third party administrator for the distinct purpose of enabling the government’s scheme to facilitate free access to abortifacient services. And the Final Mandate takes away the existing morally acceptable insurance possessed by employees of Family Talk including Dr. Dobson, instead forcing them, with no opt-out, to accept and pay into a plan that comes with promised payments (coverage) of objectionable abortifacient items not only for themselves but for their wives and daughters.
128. Thus, even under the accommodation, Plaintiffs and every other non-exempt objecting religious organization would continue to play a central role in facilitating free access to abortifacient services. In sum, the accommodation is nothing more than a shell game that attempts to disguise the religious organization’s role as the central cog in the government’s scheme for expanding access to contraceptive and abortifacient services.
129. Despite the accommodation’s convoluted machinations, a religious organization’s decision to offer health insurance and its self-certification continue to serve as the sole triggers for creating access to free abortifacient services to its employees.
26

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 27 of 51
130. Plaintiffs cannot participate in or facilitate the government’s scheme in this manner without violating their religious convictions.
The Final Mandate and Plaintiffs’ Health Insurance Plan 131. The plan year for Plaintiffs’ next employee health plan begins on May 1, 2014. As a result, Plaintiffs now face a choice. They can transgress their religious commitments, and the commitments of their employees, by including abortifacients in their plan or by designating their third-party administrator to provide abortifacients, while submitting to the government’s censorship prohibiting Plaintiffs from telling their third party administrator not to do so. Or they can violate their religious convictions to promote and provide for the spiritual and physical well-being and health of their employees, injure the well-being of their employees and their families, and make it far more difficult if not impossible to hire and keep good employees, by dropping their employee health insurance plan altogether in order to avoid being complicit in the provision of abortifacients. 132. Plaintiffs’ religious convictions forbid them from participating in any way in the government’s scheme to provide free access to abortifacient services through their health care plans. 133. Dropping their insurance plans would violate Plaintiffs’ religious convictions because it would harm the spiritual and physical well-being and health of their employees, and would also place Plaintiffs at a severe competitive disadvantage in their efforts to recruit and retain employees. 134. The Final Mandate forces Plaintiffs to deliberately provide health insurance that facilitates free access to abortifacient drugs and devices, including IUDs, Plan B and ella,
27

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 28 of 51
regardless of the ability of insured persons to obtain these drugs from other sources. And it forces Plaintiffs to explicitly designate, contract with, and arrange for their third party administrator to provide the exact promise of payments that Plaintiffs object to contracting or arranging for.
135. The Final Mandate forces Plaintiffs to facilitate government-dictated education and counseling concerning abortion that directly conflicts with their religious beliefs and teachings.
136. Facilitating this government-dictated speech directly undermines the express speech and messages concerning the sanctity of life that Plaintiffs seek to convey. And the Final Mandate explicitly gags Plaintiffs from even speaking Family Talk’s religious beliefs to its third party administrator in an attempt to withdraw the designation or convince it not to provide the promised payments.
137. The Mandate therefore imposes a variety of substantial burdens on the religious beliefs and exercise of each of Plaintiffs.
The Governmental Interests Allegedly Underlying the Mandate and the Availability of Other Means of Pursuing Those Interests 138. Coercing Plaintiffs to facilitate access to morally objectionable contraceptives and abortifacients advances no compelling governmental interest. 139. The required drugs, devices, and related services to which Plaintiffs object are already widely available at non-prohibitive costs. Plaintiffs’ plan fully provides other required women’s preventive services beyond birth control methods as discussed herein. 140. Upon information and belief, Plan B is widely available for between $30 and $65. Upon information and belief, ella is widely available for approximately $55.
28

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 29 of 51
141. There are numerous alternative mechanisms through which the government could provide access to the objectionable drugs and services without conscripting objecting organizations in violation of their religious beliefs.
142. For example, it could pay for the objectionable services through its existing network of family planning services funded under Title X, through direct government payments, or through tax deductions, refunds, or credits.
143. The government could simply exempt all conscientiously objecting organizations, just as it has already exempted the small subset of nonprofit religious employers that are referred to in Section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code.
144. The ACA and its accompanying regulations expressly exempt grandfathered plans from providing abortion-inducing drugs and devices. See 42 U.S.C. § 18011; 75 Fed. Reg. 41,726, 41,731 (2010). The Abortifacient Mandate also does not reach members of Anabaptist congregations (i.e., Amish, Mennonites, Hutterites, and those in Bruderhof Communities) or members of so-called “health care sharing ministries” formed before December 31, 1999, because the law excludes those people from the requirement to purchase health insurance. See 26 U.S.C. § 5000A(d)(2)(A), (B).
145. These broad exemptions further demonstrate Plaintiffs could be exempted from the Mandate without measurably undermining any sufficiently important governmental interest allegedly served by the Mandate.
146. Employers who do not make modifications to their insurance plans that deprive the plans of “grandfathered” status may continue to use those grandfathered plans indefinitely.
29

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 30 of 51
147. Indeed, HHS itself has predicted that a majority of large employers, employing more than 50 million Americans, will continue to use grandfathered plans until at least 2014, and that a third of medium-sized employers with between 50 and 100 employees may do likewise. 75 Fed. Reg. 34538 (June 17, 2010); see also http://web.archive.org/web/20130620171510/ http://www.healthcare.gov/news/factsheets/2010/06/keeping-the-health-plan-you-have-grandfath ered.html (archived version) (last visited Dec. 4, 2013); https://www.cms.gov/CCIIO/Resources/ Files/Factsheet_ grandfather_amendment.html (noting that amendment to regulations “will result in a small increase in the number of plans retaining their grandfathered status relative to the estimates made in the grandfathering regulation”) (last visited Dec. 4, 2013).
148. In the ACA, Congress chose to impose a variety of requirements on grandfathered health plans, but not this Mandate. Congress did not even think birth control was important enough to codify as part of this Mandate—as far as Congress is concerned, the Mandate need not include birth control at all.
149. The Administration’s recent postponement of the employer mandate (and its attendant penalties) also belies any claim that a compelling interest justifies coercing Plaintiffs to comply with the Final Mandate, as large employers may now decide not to provide their employee health plans without incurring fines under 26 U.S.C. § 4980H, at least for one additional year.
150. These broad exemptions, and the ease with which Defendants frequently declare sections of the ACA non-applicable for various reasons, also demonstrate that the Final Mandate is not a law of general applicability entitled to some measure of judicial deference.
151. These broad exemptions further demonstrate Plaintiffs could be exempted from the Mandate without measurably undermining any sufficiently important governmental interest
30

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 31 of 51
allegedly served by the Mandate. The available evidence does not support Defendants’ contention that making contraceptives, abortifacients, and related counseling available without cost sharing decreases the rate of unintended pregnancy or the adverse impacts on health and equality that allegedly flow from the unintended nature of a pregnancy.
152. Defendants were willing to exempt various secular organizations and postpone the employer mandate, while adamantly refusing to provide anything but the narrowest of exemptions for religious organizations.
The Mandate’s Religious Classifications and Targeting of Religious Entities 153. The ACA, its regulations, and its enforcement have created a complex series of religious classifications whereby the government exempts altogether some religious persons or employers from the Mandate; it “accommodates” other religious employers by requiring them to contract with surrogate third party administrators that will provide the Mandated benefits; it provides a de-facto exemption by withholding the Mandate’s central penalties from many “accommodated” religious organizations if they participate in self-insured church plans; and it maintains that some, but not all, corporations asserting religious objections may “exercise religion” under the Religious Freedom Restoration Act. 154. Religious organizations qualifying as churches, their integrated auxiliaries, and conventions or associations of churches, the “exclusively religious activities of any religious order,” and their non-separately incorporated ministries can be fully exempt from the Mandate. 155. Other nonprofit religious organizations with equally sincere moral objections to the Mandate are denied that exemption, but are subject to the “accommodation.”
31

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 32 of 51
156. As a result of this classification, some organizations operating as divisions of churches or other exempt organizations engaged in ministry activities such as education and health care are exempt from the Mandate, while many other organizations engaged in the same kind of ministry activities are denied an exemption and are subject to the “accommodation.” Those ministries qualifying for the “accommodation” but not the exemption are not churches, conventions of churches, auxiliaries, or religious orders are not given an exemption.
157. At the same time, some non-profit religious organizations that are denied the categorical exemption have now been given an de facto exemption because the government chose to impose its “accommodation” on self-insured entities only through ERISA. As a result, non-profit religious organizations that participate in self-insured “church plans” (which are exempt from ERISA) will not suffer the government’s coercion of their third party administrator to provide their employees abortifacient payments. This frees many non-exempt religious entities from the effect of penalties attached to the morally offensive “accommodation,” but it arbitrarily subjects entities like Family Talk to that same “accommodation” even though these two groups of religious non-profit organizations may be indistinguishable.
158. Most business corporations with religious objections to the Abortifacient Mandate are fully subject to the Mandate, and the government contends that they even lack the ability to “exercise religion” under the Religious Freedom Restoration Act or the First Amendment. Defendants have conceded, in other litigation, however, that some for-profit businesses— specifically, sole proprietorships and general partnerships—do have standing to invoke RFRA while limited partnerships, and corporations have no such standing. See Transcript of Oral Argument at 61-63, Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013).
32

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 33 of 51
159. The Mandate’s regulatory parameters were promulgated by government officials, and supported by non-governmental organizations, who strongly oppose religious teachings and beliefs regarding the dignity of unborn human life.
160. Defendant Sebelius, for example, has long been a staunch supporter of abortion rights and a vocal critic of religious teachings and beliefs regarding abortion and contraception.
161. On October 5, 2011, six days after the comment period for the original interim final rule ended, Defendant Sebelius gave a speech at a fundraiser for NARAL Pro-Choice America. She told the assembled crowd that “we are in a war.”
162. She further criticized individuals and entities whose beliefs differed from those held by her and the others at the fundraiser, stating: “Wouldn’t you think that people who want to reduce the number of abortions would champion the cause of widely available, widely affordable contraceptive services? Not so much.”
163. On July 16, 2013, Secretary Sebelius further compared opponents of the Affordable Care Act generally to “people who opposed civil rights legislation in the 1960s,” stating that upholding the Act requires the same action as was shown “in the fight against lynching and the fight for desegregation.” See http://www.hhs.gov/secretary/ about/speeches/sp20130716.html (last visited Dec. 4, 2013).
164. Consequently, on information and belief, Plaintiffs allege that the purpose of the Final Mandate, including the restrictively narrow scope of the religious employers exemption, is to discriminate against religious organizations that oppose contraception and abortion.
33

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 34 of 51
FIRST CLAIM FOR RELIEF Violation of the Religious Freedom Restoration Act
42 U.S.C. § 2000bb 165. Plaintiffs reallege all matters set forth in paragraphs 1–164 and incorporate them herein. 166. Plaintiffs’ sincerely held religious beliefs prohibit Family Talk as an organization, and Dr. Dobson as its President, from providing, paying for, contracting for, arranging for, making accessible, or facilitating coverage or payments for abortion, abortifacients, embryo-harming pharmaceuticals or devices, and related education and counseling, or providing or facilitating a plan that causes access to the same through an insurance company, third party administrator, or any other third party. 167. When Plaintiffs comply with the Ten Commandments’ prohibition on murder and with other sincerely held religious beliefs, they exercise religion within the meaning of the Religious Freedom Restoration Act. 168. The Mandate imposes a substantial burden on Plaintiffs’ religious exercise and coerces them to change or violate their religious beliefs. 169. The Mandate chills Plaintiffs’ religious exercise within the meaning of RFRA and pressures them to abandon their religious convictions and religious practices. 170. The Mandate exposes Family Talk to substantial fines, government lawsuit remedies and/or financial burdens for their religious exercise. 171. The Mandate exposes Family Talk to substantial competitive disadvantages because of uncertainties about their health insurance benefits caused by the Mandate.
34

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 35 of 51
172. The Mandate violates the free exercise of religion of employees of Family Talk, including Dr. Dobson, who share Family Talk’s beliefs about human life and abortifacients and who do not wish to pay for or participate in a plan that causes promised payments for abortifacients for their fellow employees, families, wives and daughters, but for whom the Mandate gives no opt-out.
173. The Mandate furthers no compelling governmental interest and is not narrowly tailored to any compelling governmental interest.
174. The Mandate is not the least restrictive means of furthering Defendants’ stated interests.
175. The Mandate and Defendants’ threatened enforcement thereof violates Plaintiffs’ rights protected by the Religious Freedom Restoration Act.
176. Absent injunctive and declaratory relief against application and enforcement of the Mandate, Plaintiffs’ will suffer irreparable harm.
SECOND CLAIM FOR RELIEF Violation of the Establishment Clause of the First Amendment to the United States Constitution 177. Plaintiffs reallege all matters set forth in paragraphs 1–164 and incorporate them herein. 178. The First Amendment’s Establishment Clause requires governmental neutrality toward religion and prohibits the government from discriminating among religions and preferring some religious denominations or views over others. 179. Through its elaborate religious classifications, the government discriminates among types of religious persons and institutions, favoring some with exemption, some only with
35

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 36 of 51
morally unacceptable “accommodation,” some with no penalties under the “accommodation,” others with the mere ability to make arguments under RFRA or the First Amendment that the government will oppose, and many religious persons and institutions with nothing but the Mandate which, if complied with, will violate their religious conscience and sully their integrity, and, if not complied with, will result in ruinous fines.
180. The Mandate’s narrow exemption for “religious employers” discriminates among religions on the basis of religious views, religious status, or incidental institutional structure or affiliation by determining that some religious employers are “religious enough” to qualify for a full exemption while others are not. The Mandate’s exemption of integrated auxiliaries of churches but its refusal to exempt organizations such as plaintiffs is irrational and discriminatory.
181. The Mandate adopts a particular theological view of what is acceptable moral complicity in provision of abortifacient drugs and imposes it through its “accommodation” upon most religionists like Plaintiffs (except those it favors via the “religious employer” exemption) who must either conform their consciences or suffer penalty.
182. The Mandate’s narrow “religious employer” exemption exempts some religious employers but not others, thereby discriminating among religious organizations and favoring some religions and religious views over others.
183. The Mandate furthers no governmental interest. 184. The Mandate violates Plaintiffs’ rights secured to it by the Establishment Clause of the First Amendment of the United States Constitution. 185. Absent injunctive and declaratory relief against application and enforcement of the Mandate, Plaintiffs will suffer irreparable harm.
36

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 37 of 51
THIRD CLAIM FOR RELIEF Violation of Free Exercise Clause of the First Amendment
to the United States Constitution 186. Plaintiffs reallege all matters set forth in paragraphs 1–164 and incorporate them herein. 187. Plaintiffs’ sincerely held religious beliefs prohibit Family Talk as an organization, and Dr. Dobson as its President, from providing, paying for, contracting for, arranging for, making accessible, or facilitating coverage or payments for abortion, abortifacients, embryo-harming pharmaceuticals or devices, and related education and counseling, or providing or facilitating a plan that causes access to the same through an insurance company, third-party administrator, or any other third party. 188. When Plaintiffs comply with the Ten Commandments’ prohibition on murder and with other sincerely held religious beliefs, they exercise religion within the meaning of the Free Exercise Clause. 189. The Mandate imposes a substantial burden on Plaintiffs’ religious exercise and coerces it to change or violate its religious beliefs. 190. The Mandate chills Plaintiffs’ religious exercise. 191. The Mandate exposes Plaintiffs to substantial fines, government lawsuit remedies and/or financial burdens for their religious exercise. 192. The Mandate forces Plaintiffs to choose between either following their religious commitments and suffering debilitating punishments or violating their consciences in order to avoid those punishments.
37

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 38 of 51
193. The Mandate exposes Plaintiffs to substantial competitive disadvantages because of uncertainties about their health insurance benefits caused by the Mandate.
194. The Mandate violates the free exercise of religion of employees of Family Talk, including Dr. Dobson, who share Family Talk’s beliefs about human life and abortifacients and who do not wish to pay for or participate in a plan that causes promised payments for abortifacients for their fellow employees, families, wives and daughters, but for whom the Mandate gives no opt-out.
195. The Mandate is not neutral and is not generally applicable. 196. Defendants have created categorical exemptions and individualized exemptions to the Mandate. 197. Despite being informed in detail of the religious objections of Plaintiffs and thousands others like it, Defendants designed the Mandate and the “religious employer” exemption therefrom in a way that makes it impossible for Plaintiffs and other similar religious organizations to simultaneously comply with their religious beliefs and the Mandate. 198. The Mandate’s narrow “religious employer” exemption is not neutral or generally applicable, in that it exempts from the Mandate some non-profit employers who are religious but not others, thereby discriminating among religious organizations on the basis of their religious views or status. Both the Mandate’s non-applicability to tens of millions of women in grandfathered insurance plans, and Defendants’ decision not to impose penalties on many religious non-profit organizations with health insurance from self-insured church plans, exacerbate its lack of general applicability.
38

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 39 of 51
199. The Free Exercise Clause, along with the Establishment Clause, protects the right of religious organizations to decide for themselves, free from government interference, matters of internal governance as well as those of faith and doctrine.
200. The Free Exercise Clause thus prohibits the government from interfering with a religious organization’s internal decisions concerning its religious structure, leadership, doctrine, and policies, or the degree to which it is an integrated auxiliary of a church.
201. The government may not interfere with a religious organization’s internal decisions if that interference would affect the faith and mission of the organization itself.
202. Based on Biblical teaching and doctrine, Plaintiffs have made an internal decision that their employee health plans may not subsidize, provide, or facilitate access to abortifacient drugs and related counseling.
203. The Mandate directly interferes with Plaintiffs’ internal decision concerning their structure and mission by requiring them to subsidize, provide, or facilitate access to abortion inducing drugs or devices and related counseling.
204. The Mandate’s interference with Plaintiffs’ internal decisions affects their faith and religious mission by requiring them to subsidize, provide, or facilitate access to abortifacient drugs and related counseling in direct violation of its religious beliefs.
205. The Mandate’s interference with Plaintiffs’ internal decision making in a manner that affects their faith and mission violates the Free Exercise Clause.
206. Defendants promulgated both the Mandate and the “religious employer” exemption in order to suppress the religious exercise of Plaintiffs and similar religious organizations.
39

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 40 of 51
207. The Mandate furthers no compelling governmental interest and is not narrowly tailored to any compelling governmental interest.
208. The Mandate and its penalties’ lack of applicability to many entities conclusively demonstrate the less-than-compelling nature of the interest that allegedly underlies the Mandate.
209. Access to abortifacient drugs and related counseling is not a significant social problem, and compelling Plaintiffs to play an essential role in facilitating access to such drugs and services is not the least restrictive means of advancing any interest the Defendants might have.
210. The Mandate violates Plaintiffs’ rights secured to it by the Free Exercise Clause of the First Amendment of the United States Constitution.
211. Absent injunctive and declaratory relief against application and enforcement of the Mandate, Plaintiffs will suffer irreparable harm.
FOURTH CLAIM FOR RELIEF Violation of the Free Speech Clause of the First Amendment
to the United States Constitution 212. Plaintiffs reallege all matters set forth in paragraphs 1–164 and incorporate them herein. 213. Through their radio shows, newsletter, and website, Plaintiffs teach that abortion violates God’s law and that any participation in the unjustified taking of an innocent human life contradicts their religious beliefs and convictions. 214. The Mandate requires Plaintiffs, as a condition of omitting abortifacient items from Family Talk’s health plan, to engage in specific speech to their third party administrator that explicitly and operatively designates the third party administrator to provide the exact promises of payments for abortifacient items that Plaintiffs object to facilitating.
40

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 41 of 51
215. The Mandate also bans Plaintiffs from speaking on behalf of threatened unborn human embryos to their third party administrator by urging the third party administrator not to provide the coverage of items that can destroy early human lives.
216. The Mandate compels Plaintiffs to facilitate access to education and counseling in favor of abortifacient items by causing payments for that speech.
217. The Mandate compels Plaintiffs to speak and refrain from speaking in a manner contrary to Plaintiffs’ religious beliefs, expression, and practices.
218. Defendants thus violate Plaintiffs’ rights to be free from compelled speech and compelled facilitation of speech, a right secured to them by the Free Speech Clause of the First Amendment.
219. Defendants also violate Plaintiffs’ freedom of speech by imposing censorship on Plaintiffs’ religiously motivated speech.
220. The Mandate’s compelled speech and censorship requirements do not advance a compelling governmental interest.
221. Defendants have no narrowly tailored compelling interest to justify this compelled speech or censorship.
222. Absent declaratory and injunctive relief, Plaintiffs will suffer irreparable harm. 223. The Mandate violates Plaintiffs’ rights secured to them by the Free Speech Clause of the First Amendment to the United States Constitution.
41

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 42 of 51
FIFTH CLAIM FOR RELIEF Violation of the Due Process Clause of the Fifth Amendment to the United States Constitution 224. Plaintiffs reallege all matters set forth in paragraphs 1–164 and incorporate them herein. 225. The Due Process Clause of the Fifth Amendment requires that government actors treat equally all persons similarly situated. 226. This requirement of equal treatment applies to organizations as well as to individuals. 227. Through the government’s religious classifications, including the Mandate’s narrow “religious employer” exemption, its decision not to impose the Mandate’s penalties on self-insured church plans covering religious non-profit entities, and the government’s refusal to recognize the “religious exercise” of many Mandate objectors, Defendants have exempted, “accommodated,” refrained from penalizing, and selectively recognized the free exercise rights of certain religious persons and organizations that object to complying with the Mandate based on their deeply held religious beliefs, but has refused to similarly treat others. 228. Family Talk, like the exempted and non-penalized religious organizations, is a religious organization that objects to the Mandate based on its deeply held religious beliefs, yet Defendants have denied the “religious employer” and “self insured church plan” exemptions to Family Talk. 229. Also like the exempted religious organizations, Family Talk employs many people who are either (1) of the same faith as Family Talk or (2) adhere to the same religious objection as
42

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 43 of 51
Family Talk, yet Defendants have denied their exemptions to Family Talk despite using that criteria to grant exemptions to other religious employers.
230. By extending their exemptions to certain religious groups, but failing to extend it to Family Talk, Defendants have treated Family Talk differently than similarly situated groups.
231. The Mandate furthers no compelling governmental interest and is not narrowly tailored to any compelling governmental interest.
232. The Mandate employs unconstitutionally vague language that results in sweeping infringements upon constitutionally protected religious exercise and speech rights in violation of the due process rights of Plaintiffs and other parties not before the Court.
233. Persons of common intelligence must necessarily guess at the meaning, scope, and application of the Mandate and its exemptions promulgated in the regulations.
234. The Mandate and regulations lend themselves to discriminatory enforcement by government officials in an arbitrary and capricious manner, and lawsuits by private persons, based on the government’s vague standards, including the accommodation’s failure to define “holds itself out as a religious organization,” 78 Fed. Reg. at 39874, the ill-defined prohibition on “directly or indirectly” attempting to “influence” a third party administrator’s attempt to arrange for payments for objectionable services, 78 Fed. Reg. at 39895, and the ACA’s failure to define “preventative health services,” 42 U.S.C. § 300gg-13.
235. These vague terms vest Defendants with unbridled discretion in deciding whether to require abortifacient coverage and for whom, and whether to allow exemptions to some, all, or no organizations that possess religious beliefs, or that meet the government’s definition of
43

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 44 of 51
“religious employers,” or that satisfy other arbitrary criteria such as whether they purchase their insurance coverage from self-insured church plans.
236. This Mandate violates Plaintiffs’ due process rights under the Fifth Amendment to the United States Constitution.
SIXTH CLAIM FOR RELIEF Violation of the First Amendment to the United States Constitution
Freedom of Expressive Association 237. Plaintiffs reallege all matters set forth in paragraphs 1–164 and incorporate them herein. 238. Through their radio show, newsletter, and website, Plaintiffs teach that abortion violates God’s law and that any participation in the unjustified taking of an innocent human life contradicts their religious beliefs and convictions. 239. The Mandate compels Plaintiffs to facilitate expression and activities that Plaintiffs believe and teach are inconsistent with their religious beliefs, expression, and practices. 240. The Mandate compels Family Talk and its executives, including Dr. Dobson, to engage third parties to act in a manner directly contrary to Dr. Dobson’s and Family Talk’s religious values. 241. Defendants’ actions thus violate Plaintiffs’ right of expressive association protected by the Free Speech Clause of the First Amendment to the United States Constitution.
SEVENTH CLAIM FOR RELIEF Violation of the Administrative Procedure Act 242. Plaintiffs reallege all matters set forth in paragraphs 1–164 and incorporate them herein.
44

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 45 of 51
243. Because they did not give proper notice and an opportunity for public comment, Defendants did not take into account the full implications of the regulations by completing a meaningful consideration of the relevant matter presented.
244. Defendants did not consider or respond to the voluminous comments they received in opposition to the interim final rule.
245. Defendants issued its regulations on an interim final basis and only asked for comments thereafter. Yet Defendants signaled from regulatory text of its interim rules that it had no intention of considering the requests by religious organizations to provide them with exemptions, or to hold the effective date of its rules after it received and considered all the comments submitted.
246. Thus, Defendants imposed its rules without the required “open-mindedness” that agencies must have when notice-and-comment occurs. Defendants also did not have good cause to impose the rules without prior notice and comment.
247. Moreover, Defendants issued the Final Mandate with respect to Plaintiffs on June 28, 2013, and declared it effective August 1, 2013, with a “safe harbor” that imposed the Final Mandate on Plaintiffs’ employee plan years beginning May 1, 2014.
248. The ACA provides, and Defendants admit, that any rule issued requiring coverage of preventive services under 42 U.S.C. § 300gg-13 cannot go into effect until at least a year after the rule is finalized. Under these provisions, the Final Mandate cannot be effective on Plaintiffs until its employee health insurance plan year starting after the summer of 2014, namely, Plaintiffs’ plan year starting May 1, 2015.
45

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 46 of 51
249. Thus the Final Rule, by its effective date of August 1, 2013 and its impact on Plaintiffs on May 1, 2014, violates the ACA and Defendants’ regulations against imposing within a year after they are finalized, and/or violates the APA’s requirement that agencies be open-minded to comments before finalizing their rules.
250. Therefore, Defendants have violated the notice and comment requirements of 5 U.S.C. §§ 553 (b) and (c), have taken agency action not in accordance with procedures required by law, and Plaintiffs are entitled to relief pursuant to 5 U.S.C. § 706(2)(D).
251. In promulgating the Mandate, Defendants failed to consider the constitutional and statutory implications of the mandate on Plaintiffs and similar organizations.
252. Defendants’ explanation (and lack thereof) for its decision not to exempt Plaintiffs and similar religious organizations from the Mandate runs counter to the evidence submitted by religious organizations during the comment period.
253. Thus, Defendants’ issuance of the Mandate was arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because the Mandate fails to consider the full extent of its implications and it does not take into consideration the evidence against it.
254. As set forth above, the Mandate violates RFRA and the First and Fifth Amendments.
255. The Mandate is also contrary to the provision of the ACA that states that “nothing in this title”—i.e., title I of the Act, which includes the provision dealing with “preventive services”—“shall be construed to require a qualified health plan to provide coverage of [abortion] services . . . as part of its essential health benefits for any plan year.” Section 1303(b)(1)(A).
46

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 47 of 51
256. The Mandate is also contrary to the provisions of the Weldon Amendment of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act of 2009, Public Law 110 329, Div. A, Sec. 101, 122 Stat. 3574, 3575 (Sept. 30, 2008), which provides that “[n]one of the funds made available in this Act [making appropriations for Defendants Department of Labor and Health and Human Services] may be made available to a Federal agency or program . . . if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.”
257. The Mandate also violates the provisions of the Church Amendment, 42 U.S.C. § 300a-7(d), which provides that “No individual shall be required to perform or assist in the performance of any part of a health service program or research activity funded in whole or in part under a program administered by the Secretary of Health and Human Services if his performance or assistance in the performance of such part of such program or activity would be contrary to his religious beliefs or moral convictions.”
258. The Mandate’s regulations also violate the ACA itself, 42 U.S.C. § 300gg-13, which give Defendants no authority whatsoever to impose mandates that cause access to contraception coverage or payments in a vehicle outside of or separate from Plaintiffs’ own health plan, or to impose requirements on Plaintiffs to designate their third party administrator to do so, or to impose penalties on the third party administrator for its failure to do so. No other federal statute gives Defendants such authority.
259. The Mandate is therefore illegal and contrary to existing law and is in violation of the APA under 5 U.S.C. § 706(2)(A).
47

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 48 of 51
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request the following relief: A. That this Court enter a judgment declaring the Mandate and challenged regulations, and their application to Plaintiffs and their third-party administrators to be a violation of their rights protected by RFRA, the Establishment, Free Exercise, and Free Speech Clauses of the First Amendment to the United States Constitution, the Due Process Clause of the Fifth Amendment to the United States Constitution, and the Administrative Procedure Act; B. That this Court enter preliminary and permanent injunctions prohibiting Defendants from continuing to apply the Mandate and challenged regulations to the Plaintiffs and their third-party administrators or in a way that violates the legally protected rights of any person, and prohibiting Defendants from continuing to illegally discriminate against Plaintiffs by requiring them to provide, arrange for or facilitate health insurance coverage or access to separate payments for contraceptives, abortifacients, and related counseling through a mechanism using their health plans to their employees; C. That this Court award Plaintiffs court costs and reasonable attorney’s fees, as provided by the Equal Access to Justice Act and RFRA (as provided in 42 U.S.C. § 1988); and D. That this Court grant such other and further relief as to which the Plaintiffs may be entitled.
48

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 49 of 51
Respectfully submitted this 10th day of December, 2013.
s/ Matthew S. Bowman Gregory S. Baylor (Texas Bar No. 01941500) Matthew S. Bowman (DC Bar No. 993261) ALLIANCE DEFENDING FREEDOM 801 G Street, NW, Suite 509 Washington, DC 20001 (202) 393-8690 (202) 347-3622 (facsimile) gbaylor@alliancedefendingfreedom.org mbowman@alliancedefendingfreedom.org
L. Martin Nussbaum (Colorado Bar No. 22613) LEWIS ROCA ROTHGERBER LLP 90 South Cascade Ave., Suite 1100 Colorado Springs, CO 80903-1662 (719) 386-3000 (719) 386-3070 mnussbaum@LRRLaw.com
David A. Cortman (Georgia Bar No. 188810) ALLIANCE DEFENDING FREEDOM 1000 Hurricane Shoals Road, NE, Suite D-1100 Lawrenceville, GA 30043 (770) 339-0774 (770) 339-6744 (facsimile) dcortman@alliancedefendingfreedom.org
Kevin H. Theriot (Kansas Bar No. 21565) ALLIANCE DEFENDING FREEDOM 15192 Rosewood Leawood, KS 66224 (913) 685-8000 (913) 685-8001 (facsimile) ktheriot@alliancedefendingfreedom.org
49

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 50 of 51
Michael J. Norton (Colorado Bar No. 6430) ALLIANCE DEFENDING FREEDOM 7951 E. Maplewood Avenue, Suite 100 Greenwood Village, CO 80111 (480) 388-8163 (303) 694-0703 (facsimile) mjnorton@telladf.org Jeremy D. Tedesco (Arizona Bar No. 023497) ALLIANCE DEFENDING FREEDOM 15100 N. 90th Street Scottsdale, AZ 85260 (480) 444-0020 (480) 444-0028 jtedesco@alliancedefendingfreedom.org Attorneys for Plaintiffs
50

Case 1:13-cv-03326-REB-CBS Document 1 Filed 12/10/13 USDC Colorado Page 51 of 51 December 6
51

 
 Case 1:13-cv-03326-REB-CBS Document 18 Filed 01/21/14 USDC Colorado Page 1 of 4
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 1:13-cv-03326-REB-CBS
Dr. JAMES C. DOBSON, and FAMILY TALK,
Plaintiffs,
v.
KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; THOMAS E. PEREZ, in his official capacity as Secretary of the United States Department of Labor; JACOB J. LEW, in his official capacity as Secretary of the United States Department of the Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; and UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants.
PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AND CERTIFICATE OF COMPLIANCE RE: CONSULTATION ON MOTION
Pursuant to Fed. R. Civ. P. 65, Plaint iffs, by and through undersigned c ounsel, hereby move this Court to ent er a preliminary injunc tion on or before April 15, 2014. Plaintiffs request a preliminary injunction against Defendants and their Mandate that requires Plaintiffs to facilitate, contrary to their since rely held r eligious beliefs, the provision and/or payment for abortifacient dr ugs and devices and related education and

Case 1:13-cv-03326-REB-CBS Document 18 Filed 01/21/14 USDC Colorado Page 2 of 4
counseling, through their employ ee health plan. In support of this motion, Plaintiffs submit an accompany ing brief. Plaintiffs urgently need relief from this Court—Plaintiffs will be required to inc lude abortifacient items in their health coverage plan that begins on May 1, 2014, in violation of their sincerely held religious beliefs. Plaintiffs therefore need injunctive relief by April 15, 2014, in order to arrange the details of that plan in time for its renewal date.
Pursuant to D.C. Colo. L. Civ. R. 7.1A, Matthew S. Bowman, one of the attorneys for the Plaintiffs, certi fies that he has, befor e the filing of this Motion for Preliminary Injunction, electronically consulted and c onferred about this motion with an attorney for Defendants, Michelle Bennett of the Depart ment of Justice. Ms. Bennett indicated that Defendants oppose the entry of a preliminary injunction and will not consent to this motion.
Plaintiffs request oral argument on the motion. A proposed form of order is attached.
Respectfully submitted this 21st of January, 2014,
s/ Matthew S. Bowman Gregory S. Baylor (Texas Bar No. 01941500) Matthew S. Bowman (DC Bar No. 993261) ALLIANCE DEFENDING FREEDOM 801 G Street, NW, Suite 509 Washington, DC 20001 (202) 393-8690 (202) 347-3622 (facsimile) gbaylor@alliancedefendingfreedom.org mbowman@alliancedefendingfreedom.org L. Martin Nussbaum (Colorado Bar No. 22613) LEWIS ROCA ROTHGERBER LLP

Case 1:13-cv-03326-REB-CBS Document 18 Filed 01/21/14 USDC Colorado Page 3 of 4
90 South Cascade Ave., Suite 1100 Colorado Springs, CO 80903-1662 (719) 386-3000 (719) 386-3070 mnussbaum@LRRLaw.com
David A. Cortman (Georgia Bar No. 188810) ALLIANCE DEFENDING FREEDOM 1000 Hurricane Shoals Road, NE, Suite D-
1100 Lawrenceville, GA 30043 (770) 339-0774 (770) 339-6744 (facsimile) dcortman@alliancedefendingfreedom.org
Kevin H. Theriot (Kansas Bar No. 21565) ALLIANCE DEFENDING FREEDOM 15192 Rosewood Leawood, KS 66224 (913) 685-8000 (913) 685-8001 (facsimile) ktheriot@alliancedefendingfreedom.org
Michael J. Norton (Colorado Bar No. 6430) ALLIANCE DEFENDING FREEDOM 7951 E. Maplewood Avenue, Suite 100 Greenwood Village, CO 80111 (480) 388-8163 (303) 694-0703 (facsimile) mjnorton@telladf.org
Jeremy D. Tedesco (Arizona Bar No. 023497) ALLIANCE DEFENDING FREEDOM 15100 N. 90th Street Scottsdale, AZ 85260 (480) 444-0020 (480) 444-0028 jtedesco@alliancedefendingfreedom.org
Attorneys for Plaintiffs

Case 1:13-cv-03326-REB-CBS Document 18 Filed 01/21/14 USDC Colorado Page 4 of 4

CERTIFICATE OF SERVICE The undersigned attorney for Plaintiffs, Matthew S. Bowman, hereby certifies that
the following counsel for Defendants was served with the preceding document by email,
with consent of such counsel, on January 21, 2014:
Michelle Bennett, Esq. Trial Attorney U.S. Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Avenue, NW Washington, D.C. 20001 Michelle.Bennett@usdoj.gov

Matthew

s/ Matthew S. Bowman S. Bowman, Esq.

 
 Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 1 of 47
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 1:13-cv-03326-REB-CBS
Dr. JAMES C. DOBSON, and FAMILY TALK,
Plaintiffs,
v.
KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; THOMAS E. PEREZ, in his official capacity as Secretary of the United States Department of Labor; JACOB J. LEW, in his official capacity as Secretary of the United States Department of the Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; and UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants.
BRIEF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 2 of 47
TABLE OF CONTENTS Table of Authorities .................................................................................................iv Introduction ............................................................................................................. 1 Factual Background ................................................................................................ 1
A. Dr. Dobson extends his pro-life evangelization by creating Family Talk ................................................................................... 1
B. Congress generally requires preventive services coverage in the ACA, but not abortifacients and not violations of conscience ................................................................................... 3
C. Defendants force Family Talk to provide or contract for abortifacient coverage in their own health plan ............................ 5
D. Congress refrains from applying the Mandate to tens of millions of women ......................................................................... 7
E. The Mandate forces plaintiffs to violate their beliefs or pay massive fines................................................................................ 8
Argument................................................................................................................. 8 II. Plaintiffs Have Demonstrated a Likelihood of Success on the Merits ................................................................................................. 9 A. The Mandate violates RFRA. ....................................................... 9 1. There is no real dispute about religious exercise or strict scrutiny .............................................................. 10 2. The Mandate substantially burdens Plaintiffs’ religious exercise........................................................ 10 B. The Mandate violates the Establishment Clause........................ 18 C. The Mandate violates the Free Exercise Clause ........................ 24 1. The Mandate is selective, not generally applicable..... 24 2. The Mandate is not neutral towards religion ................ 25 D. The Mandate violates the Free Speech Clause.......................... 28
ii

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 3 of 47 1. The Mandate impermissibly compels speech ............. 28 2. The Mandate impermissibly censors speech ............... 30
III. Plaintiffs Will Suffer Irreparable Harm Absent an Injunction............. 32 IV. The Balance of Equities Strongly Favors the Plaintiffs. ................... 32 V. The Public Interest Would Be Serve by a Preliminary Injunction ..... 33 Conclusion ............................................................................................................ 34 Certificate of Service ............................................................................................. 36
iii

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 4 of 47
TABLE OF AUTHORITIES
Cases
Abdulhaseed v. Calbone, 600 F.3d 1301 (10th Cir. 2010) ................................................................ 14
Alexander v. United States, 509 U.S. 544 (1993)................................................................................. 31
Att’y Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769 (10th Cir. 2009) .................................................................... 9
Ave Maria Foundation v. Sebelius, No. 2:13-cv-15198 (E.D. Mich. Dec. 31, 2013) ........................................ 11
Blackhawk v. Pennsylvania, 381 F.3d 202 (3d Cir. 2004) ............................................................... 25, 28
Braunfeld v. Brown, 366 U.S. 599 (1961)........................................................................... 11, 26
Brown v. Borough of Mahaffey, 35 F.3d 846 (3d Cir. 1994) ....................................................................... 28
Catholic Diocese of Beaumont v. Sebelius, No. 1:13-cv-709-RC (E.D. Tex. Dec. 31, 2013) ....................................... 11
Catholic Diocese of Nashville v. Sebelius, No. 13-6640 (6th Cir. Dec. 31, 2013) ....................................................... 11
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) ........................................................................... 24–28
Colorado Christian Univ. v. Weaver, 534 F.3d 1245 (10th Cir. 2008) .............................................. 19–20, 22–23
Diocese of Fort Wayne-S. Bend, Inc. v. Sebelius, No. 1:12-cv-159 (N.D. Ind. Dec. 27, 2013)............................................... 11
E. Texas Baptist Univ. v. Sebelius, 2013 WL 6838893 (N.D. Tex. Dec. 27, 2013).......................................... 11
Employment Div. Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872 (1990)........................................................................... 24–25
iv

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 5 of 47
Fowler v. Rhode Island, 345 U.S. 67 (1953)................................................................................... 26
Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3d Cir. 1999) ............................................................... 25–26
Geneva College v. Sebelius, No. 2:12-cv-0027 (W.D. Pa. Dec. 23, 2013) ............................................ 11
Gilardi v. Sebelius, 733 F.3d 1208 (D.C. Cir. 2013).......................................................... 15, 26
Gillette v. United States, 401 U.S. 437 (1971)..................................................................... 22, 25–26
Grace Schools v. Sebelius, No. 3:12-CV-459 (N.D. Ind. Dec. 27, 2013) ............................................. 11
Hartmann v. Stone, 68 F.3d 973 (6th Cir. 1995) ...................................................................... 28
Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) ......................................................... passim
Hurley v. Irish-Am. Gay, Lesbian, & Bisexual Grp. of Boston, 515 U.S. 557 (1995)................................................................................. 28
Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013) .............................................................. 15, 26
Larson v. Valente, 456 U.S. 228 (1982)..................................................................... 18–20, 22
Legatus v. Sebelius, 2013 WL 6768607 (E.D. Mich. Dec. 20, 2013) ........................................ 11
Little Sisters of the Poor Home for the Aged v. Sebelius, No. 13A691 (S. Ct. Dec. 31, 2013) (Sotomayor, J.) ................................. 11
Michigan Catholic Conference v. Sebelius, No. 13-2723 (6th Cir. Dec. 31, 2013) ....................................................... 11
Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976)................................................................................. 31
v

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 6 of 47
Newland v. Sebelius, 881 F. Supp. 2d 1287 (D. Colo. 2012) ............................................... 33–34
New York Times v. United States, 403 U.S. 713 (1971)................................................................................. 31
Pacific Frontier v. Pleasant Grove City, 414 F.3d 1221 (10th Cir. 2005) ................................................................ 33
Persico v. Sebelius, 2013 WL 6118696 (W.D. Pa. Nov. 21, 2013)........................................... 11
Priests for Life v. U.S. Dep’t of Health and Human Servs., No. 13-5368 (D.C. Cir. Dec. 31, 2013)..................................................... 11
R.A.V. v. City of St. Paul, Minn., 505 U.S. 377 (1992)................................................................................. 30
Reaching Souls Int’l, Inc. v. Sebelius, 2013 WL 6804259 (W.D. Okla. Dec. 20, 2013).................................passim
Riley v. Nat’l Fed’n of the Blind of N.C., 487 U.S. 781 (1988)................................................................................. 31
Roman Catholic Diocese of Fort Worth v. Sebelius, No. 4:12-cv-00314 (N.D. Tex. Dec. 31, 2013).......................................... 11
Roman Catholic Archdiocese of New York v. Sebelius, 2013 WL 6579764 (E.D.N.Y. Dec. 16, 2013) ..................................... 11, 17
Roman Catholic Archbishop of Washington v. Sebelius, No. 13-5371 (D.C. Cir. Dec. 31, 2013)..................................................... 11
Roman Catholic Archbishop of Washington v. Sebelius, 2013 WL 6729515 (D.D.C. Dec. 20, 2013) ....................................... passim
Sharpe Holdings, Inc. v. United States Dep’t of Health & Human Servs., No. 2:12-cv-92 (E.D. Mo. Dec. 30, 2013) ................................................. 11
Sherbert v. Verner, 374 U.S. 398 (1963)........................................................................... 14, 16
Southern Nazarene Univ. v. Sebelius, 2013 WL 6804265 (W.D. Okla. Dec. 23, 2013).................................passim
vi

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 7 of 47
Tenafly Eruv Ass’n v. Borough of Tenafly, 309 F.3d 144 (3rd Cir. 2002).................................................................... 26
Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707 (1981)........................................................................... 11, 18
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 624 (1994)........................................................................... 29–30
Univ. of Notre Dame v. Sebelius, 2013 WL 6804773 (N.D. Ind. Dec. 20. 2013) ........................................... 11
Wisconsin v. Yoder, 406 U.S. 205 (1972)..................................................................... 11, 14–15
Wooley v. Maynard, 430 U.S. 705 (1977)........................................................................... 28–29
Zubik v. Sebelius, 2013 WL 6118696 (W.D. Pa. Nov. 21, 2013).................................... 11, 14
Statutes 26 U.S.C. § 4980D ............................................................................................ 7, 14 26 U.S.C. § 5000A ...................................................................................... 8, 21–22 42 U.S.C. § 300gg-13.............................................................................................. 3 42 U.S.C. § 18011............................................................................................... 3, 7 42 U.S.C. § 2000bb............................................................................................... 17 42 U.S.C. § 2000bb-1........................................................................................ 9–10 42 U.S.C. § 2000bb-2............................................................................................ 10 42 U.S.C. § 2000cc-5 ............................................................................................ 10 Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010) ............................ 3 37th Cong. Ch. 75, U.S. Stat. at Large, ch. 75, 12 Stat. 731, 733
(March 3, 1863) ............................................................................................ 6
vii

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 8 of 47
Regulations 29 U.S.C. § 1132............................................................................................... 7, 14 29 C.F.R. § 2590.715–2713 .......................................................... 3, 5–6, 13, 29–30 45 C.F.R. § 147.131 .......................................................................... 3–5, 13, 19–20 75 Fed. Reg. 34,538 (June 17, 2010)...................................................................... 7 76 Fed. Reg. 46,621 (Aug. 3, 2011) ........................................................ 4, 7, 19, 27 77 Fed. Reg. 8,725 (Feb. 15, 2012) ........................................................................ 3 78 Fed. Reg. 39,870 (July 2, 2013) ................................................................ passim
Other Authorities EBSA Form 700, Dep’t of Labor,
attached as Exhibit 1, available at http://www.dol.gov/ebsa/pdf/reventiveserviceseligibleorganizationcertifi cationform.pdf................................................................................... 5, 13, 29 HHS, Guidance on the Temporary Enforcement Safe Harbor (updated June 28, 2013), available at http://www.cms.gov/CCIIO/Resources/Regulations-andGuidance/Downloads/preventive-services-guidance-6-28-2013.pdf............. 8 HRSA, Women’s Preventive Services Guidelines (Aug. 1, 2011), available at http://www.hrsa.gov/womensguidelines/.................................... 3 Inst. of Med., Clinical Preventive Services for Women: Closing the Gaps 109– 10 (2011), available at http://www.nap.edu/catalog.php?record_id=13181 .................................. 3 Murdock, Eugene C., Patriotism Limited, 1862-1865: The Civil War Draft and the Bounty System (1967) ............................................................................ 6 Murdock, Eugene C., One Million Men: The Civil War Draft in the North (1971) ..... 6 Resp’t Memo. in Opp. at 3, Little Sisters of the Poor Home for the Aged v. Sebelius, S. Ct. No. 13A691 (filed Jan. 3, 2014) .................................... 4, 20
viii

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 9 of 47
INTRODUCTION Plaintiffs Dr. James C. Dobson and Family Talk seek preliminary injunctive relief against the Affordable Care Act’s (ACA ) preventive servic es mandate and the accompanying series of federal regulations (the “Mandate”) that forc e them to violate their religious beliefs. The Government has finalized the Mandat e and indicated that enforcement was to begin on January 1, 2014. See 78 Fed. Reg. 39,870 (July 2, 2013). For Plaintiffs, that enforcement will commence when their next plan year begins on May 1, 2014. The Mandate continues to requir e religious organizations, including those that are self-insured like Plaintiffs, to violate their religious beliefs by providing, arranging for, and facilitating access to abortion-inducing produc ts, and related educ ation and counseling. In nearly all cases t o consider non-profit organizational challenges to this Mandate, a temporary or preliminary injunction has been awarded. This Court should do the same.
FACTUAL BACKGROUND A. Dr. Dobson extends his pro-life evangelization by creating Family Talk.1 For decades, Dr. James C. Dobson has been a leading public advocate of the Gospel of Jesus Christ and His biblical pl an for marriage, family and the sanctity of human life from the moment of conception/fertilization. VC ¶ 2-3, 25. In 2010, Dr. Dobson established Plaintiff Family Talk, a new non-profit organization, for the “express purpose of spreading and propagati ng the Gospel of Jesus Christ and specifically to provide Christ-oriented advice, counsel, guidance and education to parents and children and to speak to cultural issues that affect the family.” VC ¶ 22.
1 The fa cts are set forth in the Ve rified Complaint (“VC”), which is a swor n affidavit and serves as evidence in support of Plaintiffs’ motion for preliminary injunction. Those facts are summarized here, with specific references to the complaint as applicable.
1

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 10 of 47
Based on t he Bible’s religious and moral t eachings, Plaintiffs sincerely b elieve that the termination of the lif e of a preborn child after its concep tion/fertilization is an intrinsic evil and a sin against God for which Plaintiffs will be he ld accountable. VC ¶ 32. This includes abortion, methods that prevent or dislodge the implantation of an embryo after its fertilization ( hereinafter “abortion” or “abortifacient”), and the pr ovision of education and counseling in support of the same. Id. Therefore, abortion and any drug, device or p rocedure that may terminate the life of an embryo after it s fertilization (an d before or after its implantati on into the uterus) is morally wrong and objectionable to Plaintiffs. Id.
Family Talk, under the direction of Dr. Dobson, draws its employees from among those who profess and demonstrat e a strong commitment to th e Christian faith. VC ¶ 27. Plaintiffs began providing health cover age to their employees on April 1, 2010, subjecting them to the requirements of the ACA. VC ¶ 48. Plaintiffs believe that it would be immoral and sinful for them to participa te in, arrange for, facilitate, or otherwis e support health coverage for dru gs, devices or procedures (or related education and counseling) that may destroy a human life after its fertilizatio n and before (or after) its implantation in its mothers’ uterus. VC ¶ 2-3, 34. As a result, Plaintiffs have made sure that Family Talk’s current health plan excl udes coverage not only of surgical abortion, but also “contraceptives” that they be lieve may have an anti-implant ation effect (hereinafter “abortifacients”), including the morning after pill (Plan B), the week after pill (ella), and IUDs. VC ¶ 49. Many of Fam ily Talk’s employees, including Dr. Dobson himself, have moral beliefs against themselves and their families being part of a healt h plan that covers or causes coverage of abortifacients. VC ¶ 172, 194.
2

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 11 of 47

B. Congress generally requires preven tive services coverage i n the ACA, but not abortifacients and not violations of conscience.

In March 2010, Congress passed the Patient Protection and Affordable Care Act.

Pub. L. No. 111-148, 124 Stat. 119 (2010). The ACA r equires health plans to abide by

multiple rules benefitting patients, such as the requirement that plans cover dependents

until age 26. 42 U.S.C. § 18011(3)–(4). But t he abortifacient Mandate challenged in this

case is not one of those universal requirements.

The ACA requires that some health plans cover preventive care and screenings,

including women’s preventive services. Id. § 300gg-13(a)(4). But Congress did not

require that contraception or abortifacients be included in the Mandate. Id. To define this

category, Defendant the Department of Health and Human Services adopted guidelines

formulated by the private Institute of Medi cine into its preventive-care requirement.

HRSA, Women’s Preventive Services Guidelines (Aug. 1, 2011), available at

http://www.hrsa.gov/womensguidelines/ (last visited Jan. 10, 2014). The guidelines from

the IOM—and therefore Def endants’ guidelines—require that all F DA-approved

contraceptives, sterilization procedures, and related counseling be inclu ded in the

women’s preventive s ervices mandate. See Inst. of Med., Clinical Preventive Services

for Women: Clos ing the Gaps

109–10 (2011),

available

at http://www.nap.edu/catalog.php?record_id=13181 (last visited Jan. 9, 2014); see also

29 C.F.R. § 2590.715–2713 (refer encing 45 CFR 147.131(a)); 77 Fed. Reg. 8,725,

8,725 (Feb. 15, 2012). Collectively, the AC A and administrativ e adoption of these

guidelines, and the attendant penalties for t heir violation, form “the Mandate” being

challenged here.

3

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 12 of 47
In addition to not requiring abortifacients to be in the Mandate in the first pl ace, Congress empowered Defendants to enact “comprehensive” religious exemptions to the Mandate, providing no guidance as to what should be included or exc luded from the exemptions. 76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011). But Defendants decided to exempt only churches and their integrated auxiliaries from the Mandate. See 45 C.F.R. § 147.131 (2013); see generally 78 Fed. Reg. 39,870 (July 2, 2013). They did so based on the rationale that “[h]ouses of worship and t heir integrated auxiliaries that object to contraceptive coverage on religious grounds ar e more likely than other employers to employ people of the same faith who share the same objection.” 78 F ed. Reg. a t 39,887. Defendants offered no evidence for this speculation, and refused to extend an exemption to religious non-profit entities such as Family Talk even though Family Talk’s employees’ beliefs are congruent with the beliefs of Family Talk. Id.
Furthermore, Defendants refrained fr om imposing penalties on the plan administrators of certain self -insured non-profit entities t hat are exempt from ERISA because they are in a “church plan.” See Resp’t Memo. in Opp. at 3, Little Sisters of the Poor Home for the Aged v. Sebelius, S. Ct. No. 13A691 (filed Jan. 3, 2014) (stating that church plans are “exempt from regulatio n” under ERISA). Defendants withheld their enforcement mechanism even though those entities themselv es are not churches and therefore Defendants concluded that those entities ’ employees need to receiv e contraceptive coverage through t he accommodation, rather than being exempt. See 78 Fed. Reg. at 39,887. Howev er, Defendants refused to wit hhold their penalties from administrators of self-insured non-profit plans such as Family Talk’s plan, even if they are identically situated to non-profit entities in non-ERISA “church plans ”—simply
4

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 13 of 47

because Family Talk’s plan does not happen to qualify under that ERISA category.

C. Defendants force Family Talk to pr ovide or contr act for ab ortifacient coverage in their own health plan.

To coerce non-profit, non-c hurch, ERISA-governed plans such as Family T alk’s

plan, Defendants created an “accommodation” (not an exemption, and not a withholding

of penalties). See generally 78 Fed. Reg. 39,870. Under the “accommodation,” Plaintiffs

have three basic options for offering healt h coverage insuranc e to their employees.

First, they would have the “option” of violati ng Plaintiffs’ religious beliefs by Dr. Dobson

taking specific action to comply fully with the Mandate, and in cluding coverage of

abortifacients in Fam ily Talk’s plan. 29 C.F.R. § 2590.715–2713 (referencing 45 CF R

147.131(a)).

Second, Plaintiffs could sign a “certification” form and give it to Family Talk’s plan

administrator. EBSA Form 700, Dep’t of Labor,

available at

http://www.dol.gov/ebsa/pdf/preventiveserviceseligibleorganizationcertificationform.pdf

(last visited Jan. 10, 2013) (A ttached as Exhibit 1). That form says two distinct things. I t

expresses a religious objection to abortifacient cover age, id. at 1, and additionally it

declares “[t]he obligations of the third part y administrator [to pr ovide abortifacient

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

C.F.R. § 2590.715-2713A. This certification is an instrum ent under which the plan is

operated.” EBSA F orm at 2; see also 78 Fed. Reg. at 39,894–95; 29 C.F.R.

§ 2590.715–2713A.

By this language Family Talk would be creating, contracting for, and arranging for

legal “obligations” in its plan administrator to obtai n payments for abortifacients—and

those payments would be part of Family Talk’s own plan. Roman Catholic Archbishop of

5

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 14 of 47
Washington v. Sebelius, 2013 WL 6729515, at *22 (D.D.C . Dec. 20, 2013) (quoting the government’s own concession that “[i]n the se lf-insured case, technically, the contraceptive coverage is part of the plan”). Family Talk’s de livery of the form to the plan administrator, and t he “obligations” language contained in that form, creates legal obligations requiring the adm inistrator to either quit his job as Family Talk’s administrator, provide the objec tionable payments as part of Family Talk ’s plan, or subject himself to the Mandate’s fines and penalties. 78 Fed. Reg. at 39,879–80, 39,894–95. And delivery of that executed form also triggers the plan administrator being qualified to receive governm ent reimbursements for providing those payments through Family Talk’s plan. Id. at 39,897. None of these things are triggered without Family Talk submitting its form. See 78 Fed. Reg. at 39,879–80.
Furthermore, in submitting this form to th e administrator, Plaintiffs “must not, directly or indirectly, s eek to interfere with a third party administr ator’s arrangements to provide or arrange s eparate payments for cont raceptive services for participants or beneficiaries, and must not, directly or indi rectly, seek to influence the third party administrator’s decision to make any su ch arrangements.” 29 C.F.R. § 2590.715– 2713A. Family Talk ’s delivery of the form to its TPA makes the TPA F amily Talk’s surrogate in providing the abortion-inducing drugs and devices that Family Talk believes are immoral.2
Plaintiffs’ third “optio n” under the “accommodation” would be to continue providing its employ ees with the generous, non-abortifacient health plan that the
2 The Civil War’s Enrollment Act permitted a man subject to the draft to avoid mil itary service by hiring a surrogate to serve in his place. 37th Cong., Ch. 75, U.S. Stat. at Large, ch. 75, 12 Stat. 731, 733 March 3, 1863). See also Eugene C. Murdo ck, Patriotism Limited, 1862-1865: The Ci vil War Draft and the Bounty System (1967); Eugene C. Mu rdock, One Million Men: Th e Civil War Draft in the North (1971). United States selective service laws abandoned this morally repugnant practice in the twentieth century.
6

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 15 of 47
employees want, but in violation of the Mandate. That would trigger the Mandate’s harsh penalties. Employers that violate the Mandate face gov ernment lawsuits und er ERISA, and fines of up to $100 per day ($36,500 per year) per plan participant. 29 U.S.C. § 1132; 26 U.S.C. § 4980D.
Plaintiffs’ fourth “option” would be to forego provid ing employee health insurance altogether. This option would violate Plaintiffs’ religious conviction to pr omote and provider for the spirit ual and physical well-being of their employ ees and their families, and would make it far more difficult, if not impossible, to hire and keep good employees. VC ¶ 131.
D. Congress refrains from apply ing the Mandate to tens of millions of women.
Despite Defendants’ r efusal to exempt Fam ily Talk from the Mandate, they and Congress decided that the preventive services requirement need not be applied to plans across the board. In addition to the religious exemptions and non-penalties listed above, the ACA withholds the Mandat e from grandfathered plans (those that have mad e minimal changes s ince 2010). 42 U.S.C. § 18011; 76 Fed. Reg. at 46,623 & n.4. The government’s data projects that these plans , even as they reduce in number, will c over tens of millions of women. 75 Fed. Reg. 34,538, 34,540–53 & tbl. 3 (June 17, 20 10). The ACA declares that these employers have a “right to ma intain existing coverage” falling short of the Mandate, 42 U.S.C. § 18011, even if they make certain changes that raise employees’ costs, see generally 75 Fed. Reg. 34,538. Because Family Talk’s plan came into existence j ust a few days afte r the ACA was enacted, Defendants do no t deem the plan to be grandfat hered. VC ¶ 48. The Mandate also does not reac h members of certain Anabaptist congregations or participants in health sharing
7

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 16 of 47
ministries. 26 U.S.C. § 5000A(d)(2)(A) & (B).
E. The Mandate forces plaintiffs to violate their beliefs or pay massive fines.
Defendants delayed t he imposition of t he mandate on non-ex empt non-profit groups until their first plan year that begins January 1, 2014, or after. HHS, Guidance on the Temporary Enforcement Safe Harbor (updated June 28, 2013), available at http://www.cms.gov/CCIIO/Resources/Regulations-and-Guidance/Downloads/ preventive-services-guidance-6-28-2013.pdf (last visited Jan. 10, 2014). For Family Talk, that makes them subject to the Mandate starting on May 1, 2014. VC ¶ 131.
This Court is Plaintiff s’ only recourse from the Mandate’s in fringement of their religious freedom. Plaintiffs’ he alth plan does not qualify fo r the variety of secular or religious exemptions Def endants and federal law h ave chosen to provide from the Mandate. Plaintiffs are instead s ubject to the “accommodation” for non-profit religious entities, forcing them to cont ract and arrange for their third party administrator to obtain the same objectionable abortifac ient payments and deliver them th rough operation of Plaintiffs’ same health plan. The “acco mmodation” therefore changes nothing for Plaintiffs. They have no adequat e remedy at law. Unless th is Court orders preliminary injunctive relief to Plaintiffs before Ma y 1, 2014, so as to prevent the Mandate’s applicability to them, Plaintiffs will suffer irreparable harm by Defendants’ coercion. The Mandate blatantly violates longstanding religious conscienc e protections found in federal statute and the Constitution.
ARGUMENT A preliminary injunction motion turns on four factors: (1) the likelihood of success on the merits; (2) the likeliho od that th e movant will suffer irreparable h arm in the absence of preliminary relief; (3) whether the balance of equities tips in the movant’s
8

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 17 of 47
favor; and (4) whether the injunction is in the public interest. Att’y Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Ci r. 2009). Each factor favors the grant of injunctive relief to Plaintiffs.
I. Plaintiffs Have Demonstrated a Likelihood of Success on the Merits. A. The Mandate violates RFRA. The Religious Freedom Restoration Act provides that the “[g]overnment shall not
substantially burden a person’s exercis e of re ligion, even if the bur den results from a rule of general applicability.” 42 U.S.C. § 2000bb-1 (2012). S uch a burden is only permissible if the government proves that it: “(1) is in furtherance of a compellin g government interest; and (2) is the least rest rictive means of furthering that compelling government interest.” Id.
The Tenth Circuit established the framework for analyzing RFRA claims in Hobby Lobby. The initial inquiry requir es the court to (1) “identify t he religious belief in th[e] case,” (2) “determine whether t h[e] belief is sincere,” and (3) “turn to the question of whether the government plac es substantial pressure on the religious believer.” Hobby Lobby Stores, Inc. v. Sebelius , 723 F.3d 1114, 1140 ( 10th Cir. 2013). If there is suc h substantial pressure, the government action will then be held to strict scrutiny. Id. at 1143; see also 42 U.S.C § 2000bb-1.
The Hobby Lobby court concluded that the Mandate violated RFRA because it substantially pressured the Hobby Lobby plaintiffs to violate their sincere religiou s beliefs against facilita ting access to aborti facient drugs and de vices and could not satisfy strict scrutiny. Id. at 1140–44.
9

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 18 of 47
1. There should be no dispute a bout religious exercise or strict scrutiny.
RFRA defines “exercise of religion” to in clude “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. §§ 2000bb2(4), 2000cc-5(7)(A). There s hould be no dispute that Family Talk as a religious nonprofit entity, and Dr. Dobson as a natural person, are capable of exercis ing religious beliefs. Their objection to providing or fa cilitating coverage of abortifacie nts through Family Talk’s health plan, either straightforwardly or through the “accommodation,” is an exercise of religion. The government has not disputed the status of the objections nonprofit entities as constituting religious exercise, nor has it disput ed the sincerity of those objections, in any of the multiple related challenges to this Mandate.
Moreover, in related cases in t his circuit, Defendants have “c oncede[d] that, under the holding of Hobby Lobby, the federal government cannot satisfy the compelling interest test.” Reaching Souls Int’ l, Inc. v. Sebelius, No. 5:13-cv-1092, 2013 WL 6804259, at *6 (W.D. Okla. Dec. 20, 2013). Hobby Lobby controls here, as does the government’s party admission. To preserve t he Court’s time, theref ore, Plaintiffs will address the only remaining el ement needed to sustain the RF RA claim, that of a “substantial burden” to their religious exer cise. If the government decides to dispute RFRA’s other elements in t he present case, Plaintiffs r equest the opportunity to rebut them in reply briefing.
2. The Mandate substantially burdens Plaintiffs’ religious exercise. Under RFRA, courts must first assess whether the challenged law imposes a “substantial[] burden” on the plaintiff’s si ncere “exercise of religion.” 42 U.S.C. § 2000bb-1(a). Here, the Mandate imposes a substantial burden on the Plaintiffs’
10

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 19 of 47
religious exercise by forcing them to do prec isely what their religion forbid s: facilitate
access to abortifacient products and related education and c ounseling. In the vast
majority of non-profit organiz ation challenges to this Mandate, the plaintiffs have
received preliminary injunctive relief under RFRA.3
A law subs tantially burdens the exercis e of religion in one of two ways. First it
can compel one “to perform acts undeniably at odds with fundamental tenets of their
religious beliefs.” Wisconsin v. Yoder, 406 U.S. 205, 218 (1972). Put another way, a law
is a substantial burden on religio us exercise if it “make[s] unl awful the religious practice
itself.” Braunfeld v. Brown , 366 U.S. 599, 606 (1961) . Second, a substantial burden
exists where a law places “substantial pr essure on an adherent t o modify his behavior
and violate his beliefs.” Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707,
718 (1981); see also Hobby Lobby , 723 F.3d at 1141 (governm ent action substantially
burdens a religious belief when it “requires participation in an activity prohibited by a
3 See Little Sisters of the Poor Home for the Age d v. Sebeliu s, No. 13A6 91 (S. Ct. Dec. 31, 2013) (Sotomayor, J.) (temp orary injunction for hundreds of non-profit religious groups); Michigan Catholic Conference v. Sebelius, No. 13-272 3 (6th Cir. Dec. 31, 201 3) (injunction pending appeal); Catholic Diocese of Na shville v. Sebelius, No. 13-6640 (6th Cir. De c. 31, 2013) (injunction pending appeal); Roman Catholic Archbishop of Washington v. Sebelius, No. 13-5371 (D.C. Cir. Dec. 31, 2013) (injunction pending appeal); Priests for Life v. U.S. Dep ’t of Health and Hum an Servs., No. 13-5368 (D.C. Cir. Dec. 31, 2013) (injunction pending appeal); Roman Catholic Diocese of Fort Worth v. Sebelius, No. 4:12-cv00314 (N.D. Tex. Dec. 31, 2013) (granting injunctive relief to the University of Dallas); Catholic Diocese of Beaumont v. Sebelius, No. 1:13-cv-709-RC (E.D. Tex. Dec. 31, 2013); Ave Maria Foundation v. Sebelius, No. 2:13-cv-15198 (E.D. Mich. Dec. 3 1, 2013) (granting temporary restraining order to religious nonprofits because the regulations “likely substantially burden” their religious exercise); Sharpe Holdings, Inc. v. United States Dep’t of Health & Human Servs., No. 2:12-cv-92 (E.D. Mo. Dec. 30, 2013) (granting injunctive relief to religio us non-profit parties CNS International Ministries and Hea rtland Christian College); E. Texas Baptist Univ. v. Sebelius, 2013 WL 6838893 (N.D. Te x. Dec. 27, 2013); Grace Schools v. Sebelius, No. 3:12-CV-459 (N.D. Ind. Dec. 27, 2013); Diocese of Fort Wayne-S. Bend, Inc. v. Sebelius, No. 1:12-cv-159 (N.D. Ind. Dec. 27, 2013); Southern Nazarene University v. Sebelius, 2013 WL 6804265 (W.D. Okla. Dec. 23, 2013); Geneva College v. Sebelius, No. 2:12-cv-0027 (W.D. Pa. Dec. 2 3, 2013); Reaching Souls Int’l, Inc. v. Sebelius, 2013 WL 6804259 (W.D. Okla. Dec. 20, 20 13); Legatus v. Sebelius, 2013 WL 67 68607 (E.D. Mich. Dec. 2 0, 2013); Roman Catholic Archdiocese of New York v. Sebelius, 2013 WL 6579764 (E.D.N.Y. Dec. 16, 2013); Persico v. Sebelius, 2013 WL 6118696 (W.D. Pa. Nov. 21, 2013); Zubik v. Sebelius, 2013 WL 6118696 (W.D. Pa. Nov. 21, 2013). But see Univ. of Notre Dame v. Sebelius, No. 3:13-cv-01276, 2013 WL 6804773 (N.D. Ind. Dec. 20. 2013).
11

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 20 of 47
sincerely held religious belief,” “prevent s participation in conduct motivated by a sincerely held religious belief,” or “places substantial pressure on an adherent . . . to engage in conduct contrary to a sincerely held religious belief”) (int ernal citation and quotation marks omitted). The Mandate burdens Plaintiffs’ re ligious exercise in both ways.
Hobby Lobby’s finding that the Mandate substant ially burdens religious e xercise strongly suggests the same outcome here. See also note 3, supra (listing preliminary injunctions issued in most non- profit cases). Plaintiffs challenge t he same Mandate that was challenged in Hobby Lobby, and object to providing the same items in their plan . The government admits that ev en under the accommodation, coverage of the items will be provided through Family Talk’s own plan. Archbishop of Washington , 2013 WL 6729515 at *22 (quoting the government’s own concession that “[i]n the self-insured case, technically, the contraceptive cov erage is part of the pla n”). Under that accommodation, because Family Talk is a self -insured entity, Plaintiffs are forced to legally obligate their plan admin istrator to provide the same coverage that Family Talk itself objects to providing. 78 Fed. R eg. at 39,879. Therefor e the Mandate coerces Family Talk to obligat e a surrogate to provi de coverage of abortifacients in it s own plan against its beliefs. This burden is similar to Hobby Lobby where the Mandate forced Hobby Lobby to provide coverage of abortifa cients in its own plan against its beliefs . Ruling against Family Talk wou ld be incon sistent with the protection afforded to forprofit groups in Hobby Lobby.
Under Hobby Lobby, the substantial burden issue is also resolved by the fact that the government is coercing Plaintiffs to take action that violates their sincere religious
12

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 21 of 47
beliefs. Hobby Lobby, 723 F.3d at 1137 (“ Our only t ask is to determine whether the claimant’s belief is sincere, and if so, w hether the government has applied substantial pressure on the claimant to violate that belief.”). In Hobby Lobby, the Tenth Circuit he ld that “this dilemma c reated by the statute” met the “t hreshold showing regarding a substantial burden.” Id. at 1138, 1141
As a result, the Mandate is an example of the quintessential kind of substantial burden: a command to violate one’s beliefs. The Mandate expressly requires Family Talk (which acts through Dr. Dobson) to either cover abortifacients in its plan, 29 C.F.R. § 2590.715–2713 (referencing 45 CFR 147.131(a)), or to designate its third party administrator as an ERISA “plan administrator and claims administrator solely for the purpose of providing payments for contrac eptive services [and abortifacients] for participants and beneficiaries,” EBSA Form at 2; 29 C.F.R. § 2590.715–2713A. Family Talk is required to create t hese obligations in its third party plan adm inistrator by including the recitation of these obligati ons in Family Talk’s certification form. Id. The coverage that the third party administrator pr ovides under those obligations will be part of Family Talk’s own plan. Id.; see also Archbishop of Washington, 2013 WL 6729515 at *22.
Thus, pursuant to the Mandate, Family Ta lk as a part of its self-funded plan wil l be required to instruct its TPA to provide ab ortifacient coverage without cost-sharing (or else Family Talk must do this itself, whic h in a self-insured sit uation amounts to the same thing).4 Either ac tion violates Family T alk’s beliefs (and they both amount to the
4 Notably, in related cases the government has argued that no substantial burden exists because the selfinsured entity must merely recite its religious objection, which it is already glad to declare publicly. This is false as a matter of fact. The gove rnment’s own form proves that Family Talk must do more than cite a religious objection, it must also re cite and create t he “obligations” of its third party plan admini strator.
13

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 22 of 47
same thing in a self-insured plan). Should Family Talk refuse to comply with the Mandate, it would be subject to potential fines of $100 per day per affected beneficiary ($36,500 per year). See 26 U.S.C. § 4980D, and government lawsuits under ERISA in which Defendant Department of Labor would sue Family Talk to force it to provide the coverage. 29 U.S.C § 1132. Being forced to “compromise their religious beliefs” and pay substantial fines “is precisely the sort of Hobson’s choice” that “establishe[s] a substantial burden as a matter of law.” Hobby Lobby, 723 F.3d at 1141. And penalizing people who refuse to violate their faith is a prototypical substantial burden. Sherbert v. Verner, 374 U.S. 398, 404 (1963) (deprivation of unemployment benefits p uts “unmistakable pressure upon [applicant] to forgo [her religious] practice” resulting in “the same kind of burden upon the free exercise of religion” as a “fine imposed against appellant for her Saturday worship.”); see also Yoder, 406 U.S. at 208, 218 (fine of five dollars for believers’ r efusal to v iolate their faith “not only sev ere, but ines capable”); Abdulhaseed v. Calbone, 600 F.3d 1301, 1315 (10th Cir. 2010) (substantial burden exists where government imposes “substant ial pressure on an adherent either not to engage in conduct motivated by a sincerely held religious belief or to engage in conduct contrary to a sincerely held religious belief, such as where the government presents the plaintiff with a Hobso n’s choice – an illusor y choice where the only realistic ally possible course of action trenches on an adherent’s sincerely held religious belief.”);
Moreover, even the portion of the fo rm that expresses F amily Talk’s religious objections is not a m ere expression of objections, because the form only exists in o rder to trigger the objectionable coverage in Family Talk’s own plan. As the distri ct court state d in Zubik, 2013 WL 61 18696 at *25, the religi ous objection portion of the form is analogous to “a neighbor who asks to borrow a knife to cut something on the barbecue grill, and the request is easily granted. The next day, the same neighbor requests a knife to kill someone, and the request is refused. It is the reason the neighbor requests the knife” that renders the second expression objectionable despite being facially similar to the first.
14

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 23 of 47
The Mandate also constitutes a burden on F amily Talk in the form of “substantial pressure.” Being fac ed with fines amounts to a substantial bur den under RFRA—far surpassing, for example, the $5 fine that was a “subs tantial burden” in Yoder. In the face of such similar substantial pr essure, the Tenth Circuit concluded in Hobby Lobby that a for-profit business organization wh ich challenged the Mandate was likely to succeed on the merits of its RFRA claim a nd that the Mandate imposed a substantial burden on religious exercise by “demand[ing],” on pain of onerous penalties, “that [the Hobby Lobby Plaintiffs] enable access to c ontraceptives that [they] deem morally problematic.” 723 F.3d at 1141; see also Korte v. Sebelius , 735 F.3d 654, 683 (7th Cir. 2013) (same); Gilardi v. S ebelius, 733 F.3d 1208, 1218 (D.C . Cir. 2013) (same); Southern Nazarene Un iv. v. Sebelius, 2013 WL 6804265, at *9 (W.D. Okla. Dec. 23, 2013). (“The government has put these institutions to a choice of either acquiescing in a government-enforced betrayal of sincerely held religious beliefs, or incurring potentially ruinous financial penalties, or electing other equally r uinous courses of action. That is the burden, and it is substantial.”). The pressure on Fam ily Talk from government penalties is at least equal. The financial penal ty for providing coverage in violation of the mandate amounts to approx imately $36,500 per year for each affected plan beneficiary. This is a ruinous amount for a small non-profit religious organization.
The Mandate also substantially burdens Fa mily Talk in its decision to provide high-quality and morally acceptabl e health coverage for its empl oyees. Family Talk has religious beliefs in favor of caring for its employees, and it does so by virtue of its health plan. VC ¶ 44. It cannot drop its employee health plan without violating its religious beliefs concerning the provision of health coverage and injuring its employees, including
15

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 24 of 47

hurting Dr. Dobson himself, by d epriving them of that plan. VC ¶ 131. To do so w ould

also send its employees into an insurance ma rket that is both expensive and morally

treacherous, since the employees would be forc ed to violate their own pro-life religiou s

beliefs because plans they c ould buy would cover abortifacients. Dropping the

employee plan wo uld also ha rm Family Ta lk’s ability to attract and keep good

employees. VC ¶ 133. All of this amounts to signif icant pressure on Family Talk ’s

religious exercise.

The Mandate therefore substantially burdens Family Talk und er Sherbert, 374

U.S. at 404. In that case, the Supreme Court deemed the mere denial of unemployment

benefits to be a substantial burden on an employee who ref

used to work on the

Sabbath, even though no law required the employ ee to work on the Sabbath or to work

in general. Merely forcing Family Talk to “forfeit[] benefits, on the one hand”—the ability

to offer employee health coverage, which is itself a religious conviction of Plaintiffs—

“and abandoning one of the precept s of [Family Talk ’s] religion in order to accept [the

ability to offer insurance], on the other hand,” constitutes a substantial burden on

religious exercise. Id. “[T]o condition the availabilit y of benefits upon th is appellant's

willingness to violate a cardinal principle of her religious faith effectively penaliz es the

free exercise of her cons titutional liberties.” Id. at 406. “[T]he liber ties of religion and

expression may [not] be infringed by the denial of or placing of conditions upon a benefit

or privilege.” Id. at 404. Conditioning Family Ta lk’s ability to offer employee he alth

coverage on a requirement that their plan also offer aborti facient coverage is a penalty

on Plaintiffs’ free exercise of religion under Supreme Court precedent.

16

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 25 of 47
In Hobby Lobby and other cases, the government has argued that the burden under the Mandate is not s ubstantial because the coverage is just a form of compensation and plaintiffs them selves are not being forced to use contraception. But that allegation misunderst ands both the facts and the l egal standard of substantial burdens. Plaintiffs’ religious objection is not only to the us e of the objectionable drugs and devices but also being required to actively participate in a sc heme to provide such services. VC ¶ 130. “Hobby Lobby and Mardel have drawn a line at providing coverage for drugs or devices t hey consider to induc e abortions, and it is not for us to question whether the line is reasonable.” Hobby Lobby, 723 F.3d at 1141; see also Roman Catholic Archdiocese of New York v. Sebelius, 2013 WL 6579764, at *14 (E.D.N.Y. Dec. 16, 2013) (“Plaintiffs' religious objection is not only to the use of contraceptives, but also to being required to actively participate in a scheme to provide such services”). The accommodation the government requires is to sign a form that is, “in effect, a permission slip.” Southern Nazarene, 2013 WL 6804265, at *8.
As another court in the Tenth Circuit ex plained, the government’s claim that Plaintiffs’ objection to signing the form is “legally flawed and mis guided because their participation would not actually facilitate a ccess to c ontraceptive coverage” is “simply another variation of a proposition rejected by the Tenth Circ uit in Hobby Lobby.” Reaching Souls Int’l, 2013 WL 6804259, at *7. In RF RA, “substantial” is a measure of the government burden, not of the claimant’s religious beliefs or theological culpability. RFRA asks for a “substantial bur den,” not a “substantial belief.” 42 U.S.C. § 2000bb(b). The analysis asks “whether the governmen t has applied substantial pressure.” Hobby
17

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 26 of 47
Lobby, 723 F.3d at 1137. It does not ask how su bstantial are the plaintiffs’ moral qualms.
The Supreme Court rejected the idea that the gover nment can second-gues s theological judgments of re ligious claimants. In Thomas, the Court rejected the idea that because Mr. Thomas was not opposed to manufacturing sheet metal, he was no t burdened in the requirement to manufacture tank turrets possibly made from that sheet metal. “Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one. Courts s hould not undertake to disse ct religious beliefs .” Thomas, 450 U.S. at 715–16. Similarly, the government has no busi ness deciding that Family Talk may object to providing abortifacient coverage, but its conscience must accept the requirement to legally obligate its plan administrator to prov ide that same abortifacient coverage in Family Talk’s own plan.
B. The Mandate violates the Establishment Clause. The Mandate also violates the Establishment Clause of the First Amendment. “A set of rules that “makes explic it and deliberate di stinctions between different religious organizations” in order to burden some and not others violat es the Establis hment Clause. Larson v. Valente, 456 U.S. 228, 246 n.23 ( 1982) “By their ‘very nature,’ the distinctions [among religious organizations] ‘engender a risk of po liticizing religion’—a risk, indeed, that has already been substantially realized.” Id. at 253 (quoting Walz v. Tax Comm'n, 397 U.S. 664, 695 (1970)). The Estab lishment Clause “guard[s] against” government distinctions “inviting undue fr agmentation” among religious gr oups who “inevitably represent certain points of view . . . in the political arena, as evidenced by the continuing debate respecting birt h control and abortion laws.” Id. (quoting Walz, 397
18

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 27 of 47
U.S. at 695). Instead the gov ernment “must treat ind ividual religions and religious institutions ‘without discrimination or preference.’” Colorado Christian Univ. v . Weaver, 534 F.3d 1245, 1257 (10th Cir. 2008) (quot ing New York Const., art. XXXVIII, reprinted in 5 THE FOUNDERS’ CONSTITUTION at 75).
The government’s exemptions, “accommodations,” and non-enforcement choices create exactly the kind of discriminatory ca ste system of religious groups that th e Establishment Clause prohibits.
(1) First, despite the “comprehensive” discretion Congress provided to exempt all religious objectors, s ee 76 Fed. Reg. at 46,623; 45 C.F.R 147.131, the government decided that only churches and their int egrated auxiliaries count as “relig ious employers” entitled to an ac tual “exemption” from the Mandate, 45 C.F.R. § 147.131. The government’s rationale for denying this exemption to other groups such as Family Talk was that only such entities have empl oyees committed to the organization’s beliefs on contraception. See 78 Fed. Reg. at 39,887. This rationale is factually unsupported, and demonstrably false in this case as well as with other thoroughly Christian organizations.
(2) Second, the exemption inc ludes not just churches but their “integrated auxiliaries.” 45 C.F.R. § 147.131. Thus if a church runs a school and does not separately incorporate it, the school is likel y exempt; but if a diocese has a separately incorporated religious school it is not exempt. Likewise Family Talk lacks the exemption in this respect becaus e Dr. Dobs on did not s eek to organize it as an operation of the particular Christian church that he happens to attend. Th e rule defining integrate d auxiliaries is similar to one rejected by Larson as an unconstitutional basis to distinguish
19

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 28 of 47
between religious organizations. IRS rules define integrated auxiliaries in part based on the percentage of income they receive from a church. 26 CFR § 1.6033-2(h) (“[n]ormally receives more than 50 percent of its support from” out side sources). The Court declared in Larson, 456 U.S. at 249, that “we find no substantial support . . . in the record” the government’s rationale for distin guishing between religious organizations on that basis.
(3) Third, the government subjected non-exempt religious organizations to a multi-tiered “accommodation” that attemp ts to decide wh at will s atisfy each organization’s conscience. Under the rule, Fa mily Talk is forced to either provid e abortifacient coverage itself, 45 C.F.R. § 147.131, or (because it is self-insured) order the administrator of its self-insured plan to do so within its own pl an, 78 F ed. Reg. at 39,894-95. The gover nment improperly donned the role of theological arbiter to dee m this arrangement satisfactory to Family T alk’s conscience. Such a rule imposes “intrusive judgments regarding contested questions of religio us belief or practice” in violation of the First Amendment. Weaver, 534 F.3d at 1261.
Another kind of non- exempt religious org anization is treated differently. The government chose not to impos e its penalties on the plan admi nistrators of non-profit religious entities even if they are non-exempt just like Family Talk, and have self-insured plans, but those plans are “church plans” exempt from ERISA. See Resp’t Memo. in Opp. at 3, Little Sisters of the Poor Ho me for the Aged v. Sebelius , S. Ct. No. 13A691. In this respect Family Talk’s c oerced designation form triggers penalties on its plan administrator for not providing abortifacient coverage, merely because Family Talk doe s not happen to be enrolled in a se lf-insured plan that is a “church plan” exempt from
20

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 29 of 47
ERISA. The government actually contradicted its rationale in making this distinction. When it ref used to “exempt” bot h Family Talk and “c hurch plan” non-exempt religious groups, the government did so on the bas is that all such groups’ employees need to receive contraceptive coverage through the accommodation, rather than being exempt . See 78 F ed. Reg. at 39,887. But under the “church plan” loophole, the government withheld the principle penalty it chose to us e to deliver that exact cover age. The government therefore undermined the premise that any such organization’s employees need to receive the coverage.
(4) Fourth, the gover nment deemed religious people in fo r-profit corporations to not have any claim to religious conscienc e at all, and therefore to be entitled to neither the exemption nor the accommodation. See Hobby Lobby, passim. (5) Fifth, however, the government chose to withhold the mandate from tens of millions of women who are in grandfathered health plans. Family Talk, because it was a new organization in 2010 and its health plan began just a few days afte r the passage of the ACA, was denied the ability to possess grandfathered status that health plans beginning a few days earlier were afforded. Instead Family Talk is comply with the Mandate or obligate abortifacient coverage in its own plan while the government has deemed tens of millions of women at thousands of employers as unworthy of receiving that same abortifacient coverage.
(6) Sixth, the government exempted “ health sharing ministries” and their members from the Mandate, if t hey have been in existence since December 31, 1999. 26 U.S.C. § 5000A(d)(2)(B). The choice of t hat date is arbitrary. Upon information and belief, the only minist ries that meet this qualification are three Evangelical Protestant groups: Samaritan Ministries, Medi-Share, and Christian Healthcare Ministries. Catholic
21

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 30 of 47
or other religious den ominations that wish to establis h health sharing ministries are prohibited by the rule from doing so. Larson found an Establishment Clause violation in the context of a scheme that similar had the effect of denominational discrimination. 456 U.S. at 252–55.
(7) Seventh, the ACA exempts from the individual mandate to obtain insurance— and therefore refrains from delivering abortifacient cove rage to—members of certain historic Anabaptist congregations which, inter alia, oppose the acceptance of insurance and have been in existence at all times since Dec ember 31, 1950. See 26 U.S.C. § 5000A(d)(2)(A) (referencing 26 U.S. C. § 1402(g)(1)). This adds to the government’s patchwork exemption scheme, which nevertheless refuses to offer an exemption from the Mandate to Dr. Dobson and Family Talk.
Such “religious gerrymandering” of re ligious believers and organizations is unconstitutional. Larson, 456 U.S. at 255 (quoting Gillette v. United States , 401 U.S. 437, 452 (1971)). In Weaver the Tenth Circuit held unconstitutional a policy of discrimination among relig ions that is very similar to the Mandate. The policy in that case attempted to treat “pervasively sectari an” educational institutio ns differently than other religious institutions. Id. at 1250–51. The Mandate here likewise improperly discriminates among religious organizations. It treats them differently based on whether they are churches that receive an exemption from the Mandate, religious nonprofits that are subject to the coercive “accommodation” in different wa ys, or religious nonprofits deserving of non-enforcement of the Mandate upon their plan administrator. The government explicitly refused to extend its c hurch exemption to entities such as Family Talk based on the incorrect judgment that churches have a greater coherence of beliefs
22

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 31 of 47
with their employees. That judgment is of t he same brand as a “pervasively sectarian” rule. The Tenth Circuit called s uch line drawin g “puzzling and wholly artificial,” even when the government contended, as it does here, that it was merely “distinguish[ing] not between types of religions, but between types of institutions.” Id. at 1259–60. The Court held that “animus” towards religion is not r equired to find a First Am endment violation in the presence of such facial demarcations of discrimination. Id. at 1260.
Under Weaver, therefore, discri mination because of different types of religious organizations and their religious exercise violates the Constitution. Id. at 1256, 1259. The Mandate picks and choos es between diffe rent kinds of religious people and practices, respecting some while coercing most others. The government has dec ided that covering or ordering coverage of abortifaci ent items does not infringe on Plaintiffs’ religious beliefs, while at the same time it: exempted tens of millions of women in grandfathered plans; exem pted churches even though relig ious ministries may have similar congruence between t he beliefs of the organiza tion and its employees; exempted churches’ integrated auxiliaries even if those ent ities engage in Christian ministry indistinct from ot her non-profits; re frained from applying penalties to plan administrators of self-insur ed non-exempt religious groups in “church plans” even though the government deemed their employees to need the M andate; refrained from applying the Mandate to health s haring ministries but prohibi ted the founding of new health sharing minist ries of the same or other denominations; and refrained from requiring the mandate on certain religious denominations.
23

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 32 of 47
This segregation among religious groups is not only discriminatory, it is largely arbitrary and irrational. It violates the neut rality and non-entanglem ent requirements of the Establishment Clause and are therefore unconstitutional.
C. The Mandate violates the Free Exercise Clause. The Mandate violates the Free Exercise Clause of the First Amendment because it is neither religiously neutral nor generally applic able, and as dis cussed above, it fails strict scrutiny. “At a minimum, the protections of the Free Ex ercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertake n for religious reasons .” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993). As discussed above, Plaintiffs exercise religion in their objection to the Mandate. Smith established that burdens on religiously-moti vated conduct are subject to strict scrutiny under the Fr ee Exercise Clause when a regulation lacks neutrality or general applicability. Employment Div. Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990). Both are missing here.
1. The Mandate is selective, not generally applicable. Unlike in Smith, which inv olved an “across-the- board criminal prohibition on a particular form of conduct,” 49 4 U.S. at 884, t he Mandate here f alls short of ge neral applicability. The ACA creates a vast system of categorical exemptions that frees thousands of employers from the Mandate’s scope, as just recited in the Es tablishment Clause analysis. See s upra I.B. Despite all of thes e exemptions and non-applications of the Mandate and its penalti es, however, the governm ent refuses to exem pt non-profit
24

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 33 of 47
religious groups such as Family Talk. Such “categories of s election are of paramount concern when a law has the
incidental effect of bur dening religious practice.” Lukumi, 508 U .S. at 542. Indeed, “categorical” exclusions exacerbate concerns regarding the dis criminatory potential of “‘individualized exemptions.’” Fraternal Order of Police Newark Lodge No . 12 v. City of Newark, 170 F.3d 359, 365 (3d Cir. 1999) (Alito, J.). Here, the government’s exemptions for secular and r eligious reasons, in tandem with its arbitrary decision not to extend an exemption to Plaintiffs, demonstrate that the Mandate is selective, not comprehensive, in nature. See Lukumi, 508 U.S. at 543 (not ing a lac k of gener al applicability when a regulation “fail[s] to prohibit nonreligious c onduct that endangers [the gov ernment’s] interests in a similar or greater degree”).
This lack of general applic ability justifies strict scrut iny of the Mandate under the Free Exercise Clause. See id. at 546. The government c annot refuse to extend a system of exemptions “to cases of ‘religious hardship’ without compelling reason.” Id. at 537 (quotation omitted); Smith, 494 U.S. at 884 (quotation omitted). But that is precisely what the government seeks to do here. The First Amendment “protects religious observers against [such] unequal treatment.” Lukumi, 508 U.S. at 542 (quotation and alteration omitted); see also Gillette v. United States , 401 U.S. 437, 461 (1971) (“[T]he Free Exercise Clause no doubt has a reach of its own.”).
2. The Mandate is not neutral towards religion. The Mandate is not neutral bec ause it di stinguishes among religious objectors, as well as between secular and religious objectors. A neutral law “does not target religiously motivated conduct either on it s face or as applied in practice.” Blackhawk v.
25

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 34 of 47
Pennsylvania, 381 F.3d 202, 209 (3d Cir. 2004); see also Fowler v. Rhode Island, 345 U.S. 67, 69 (1953) (holding that the city vi olated the Free Exercise Clause by enforcing an ordinance banning meetings in park again st Jehovah’s Witnesses but exempting other religious groups). T he “government cannot discrim inate between religious ly motivated conduct and comparable secularly motivated conduct in a manner that devalues religious reasons for acting.” Tenafly Eruv Ass ’n v. Borough of Tenafly , 309 F.3d 144, 169 (3rd Cir. 2002). “The Free Exercise Clause’s mandate of neutrality toward religion prohibits government from deciding that secular motivations are more important than religious motivations.” Id. at 165.
Refusing to exempt Plaintiffs from the Mandate in the face of numerous exceptions “devalues [their] religious re asons” for objecting to assisting in the destruction of embryonic life. Lukumi, 508 U.S. at 537. Provid ing secular exemptions “while refusing religious exempt ions is sufficiently suggestive of discriminatory intent so as to trigger hei ghtened scrutiny under Smith and Lukumi.” Fraternal Order of Police , 170 F.3d at 365; see also Fowler , 345 U.S. at 69 (noting the dangers inherent in “the state preferring some religious groups over th is one”). Discrimination is inherent in the Mandate’s departure from “our happy tradition of avoiding unnecessary clashes with the dictates of conscienc e.” Gillette, 401 U.S. at 453 (quot ation omitted). The government has available to it a variety of ways to “accomplish its secular goals wit hout even remotely or incidentally affecting religious freedom.” Braunfeld, 366 U.S. at 608; s ee Hobby Lobby, 723 F.3d at 1144 (concluding that the Mandate fails the leas t restrictive means requirement); Korte, 735 F.3d at 686–87 (same, expanding on least restrictive means analysis); Gilardi, 733 F.3d at 1222–24 (same). Indeed, Congress authorized
26

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 35 of 47
“comprehensive” religious exemptions, see 76 Fed. Reg. at 46 ,623, yet Defendants chose to exempt only churches, and to r efrain from penalizing many non-profit nonchurches’ plans, while denying either to Family Talk.
By engaging in suc h arbitrary line drawing between reli gious people and organizations, and by offering s ecular exemptions that encompass tens o f millions o f women, the government has failed to pursue its proffered objectives “with respect to analogous non-religious conduct,” as well as to identical conduct by other religiou s actors whom the government views with a more favorable eye. Lukumi, 508 U.S. at 546. The “risks” caused by existing exemptions from the Mandate “are the same” as those posed by the exemption requested here. See id. at 544. The millions of women covered by grandfathered plans and the hundreds of non-profit plans exempt from ERISA have no less of the government’s alleged “need” for the M andate’s benefits than women covered by Family Talk’s plan. Yet those plans receive either exemptions or nonenforcement, while Family Talk is required to cover or order abortifacient coverage in its plan.
The First Amendment prevents Plainti ffs from “being sin gled out for discriminatory treatment” by the government’s refusal to grant them an exe mption that would have no different effects than those already approved. Lukumi, 508 U.S. at 538. Defendants cannot give a nondiscr iminatory reason why Plaint iffs’ free exercise of religion must bear the weight of t he Mandate when Defendants’ own voluntary measures place thousands of ot her employers, both religious and nonreligious, outside of its scope. Cf. id. at 544. Because the Mandate h inders “much more religious conduct than is necessary in order to achieve the legitimate ends asse rted in [its] defense,” it is
27

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 36 of 47
“not neutral.” Id. at 542; see also Blackhawk, 381 F.3d at 209 (expla ining that for a la w to be “neut ral” it must “not target religiously motivated c onduct either on its face or as applied in practice”). This lack of neutrality subjects the M andate to “the most rigorou s of scrutiny.” Lukumi, 508 U.S. at 546.
Finally, it is noteworthy that under the Fr ee Exercise Clause, Plaintiffs need not show that t he Mandate imposes a “substantial” burden on their free exercis e rights at all: strict scrutiny app lies to a non-generally applicable or non-neutral law. See Lukumi, 508 U.S. at 546; Blackhawk, 381 F.3d at 209 (Alito, J.) (recognizing strict scrutiny applies once non-general ap plicability or non-neutra lity is established); accord Hartmann v. Stone , 68 F.3d 973, 979 n.3 (6th Cir. 1995), and Brown v. Borough of Mahaffey, 35 F.3d 846, 849 (3d Cir. 1994).
D. The Mandate violates the Free Speech Clause. 1. The Mandate impermissibly compels speech.
The Mandate also violates the First Amendment’s pr otection of the Freedom of Speech. First, by coercing Plaintiffs to e ngage in speech that is contrary to their religious beliefs.
The “right to speak and the right to re frain from speaking are complementary components of the broader concept of ‘individual freedom of mind.’” Wooley v. Maynard, 430 U.S. 705, 714 (1977) (quoting W. Va. State Bd. of Educ. v. Barnette , 319 U.S. 624, 637 (1943)). Accordingly, the First Amendment protects the ri ght to “decide what not to say.” Hurley v. Irish-A m. Gay, Lesbi an, & Bisexual Grp. of Boston , 515 U.S. 557, 573 (1995) (internal quotation marks omitted). Thus, “[l]aws that compel speakers to utter or distribute speech bearing a particular me ssage are subject to the same rigorous
28

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 37 of 47
scrutiny” as those “that suppress, disadv antage, or impose diffe rential burdens upon speech because of its content.” Turner Broad. Sys., Inc. v. FCC , 512 U.S. 624, 642 (1994). The “First Amendment protects the right of individuals to hold a point of view different from the majority and to refuse to foster, in the way [the government] commands, an idea they find morally objectionable.” Wooley, 430 U.S. at 715.
Here, the Mandate unconstitutionally coerces Plaintiffs to speak a message they find morally objectionable. It exp licitly requires Family Talk, as a self-insured entity, not merely to express its religious objection but also to exp licitly declare (by Dr. Dobson’s signature) that “The obligations of the third party administrat or [to provide contraceptive services] are set forth in 26 § C.F.R. 54.9815-2713A, 29 § C.F.R. 2510.3-16, and 29 § C.F.R. 2590.715-2713A. This ce rtification is an instrument under which the plan is operated.” EBSA For m at 2; 29 C.F.R. § 2590.715–2713A. The government explain ed that by means of this speec h, Family Talk creates legal obligations in its plan administrator to provide the precise coverage that Family Talk obj ects to arranging and contracting for, within its own pl an. 78 Fed. Reg. at 39,879–80; Archbishop of Washington, 2013 WL 6729515 at *22. The governmen t also explained that those legal obligations occur only if Family Talk itself speaks this message—it is necessarily Family Talk’s own speech, or else it is not operat ive. 78 Fed. Reg. at 39,879–80. By this coerced speech, Family Talk is forced to ar range and contract for its plan administrator to provide the exact coverage that the government falsely declares Family Talk does not arrange and contract for. 5 This is speech that Family Talk objects to speak ing, VC
5 In other self-insured cases the government has described the required form as merely an expression of religious objection. As noted above, that description is false. The form also requires Family Talk to recite the above-quoted designation of “obligations” language, and that speech contains specific content and legal import well beyond a religious objection. If Family Talk does not recite this “obligations” language,
29

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 38 of 47

¶ 214, 217. Thus the designation requirement constitutes compelled speech in its purest

form. It is a straightforward violation of the First Amendment.

2. The Mandate impermissibly censors speech.

Second, the Mandate also cens ors Family Talk’s speech. After forcing Family

Talk to speak words that contract and arr ange for objectionable “obligations” on its plan

administrator, the Mandate goes on to prohibit Family Talk (and Dr. Dobson acting for it)

from speaking a contrary me ssage to its plan adminis trator: “The eligible organization

must not, directly or indirectly, seek to interfere with a third party administrator’s

arrangements to provide or arrange separ ate payments for contraceptive services for

participants or benefic iaries, and must not, directly or indi rectly, seek to influence the

third party administrator’ s decision to make any such arrangements.” 29 C.F.R.

§ 2590.715–2713A (emphasis added).

This is a gag rule, prohibiting a Christ ian organization to speak its Christian

beliefs. It strikes at the heart of the

freedom of speech enshrined in the First

Amendment. It restri cts Family Talk’s speech based on its c ontent: the content of

speech that would try to “interfere” or “i nfluence” someone against providing a service

(abortifacient, contraceptive and sterilization coverage) to which Family Talk objects.

The Mandate is therefore a content

based restriction on speech th at is

presumptively unconstitutional. Turner, 512 U.S. at 641 (“As a general rule, laws that by

their terms distinguish favored speech from disfavored speech on the basis of the ideas

or views expressed are content based”); R.A.V. v. City of St. Paul, Minn., 505 U.S. 377,

the government will impose its full range of penalties. As discussed above, Family Talk also objects to the triggering context of its forced expression of objection in the form.
30

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 39 of 47
382 (1992) (“Content-based regul ations are presumptively invalid” under the First Amendment).
The Mandate is also an unconstitutional prior restraint on speech. “The term prior restraint is used to describe adm inistrative … orders forbidding c ertain communications when issued in advance of the ti me that such communications are to occur.” Alexander v. United States , 509 U.S. 544, 550 (1993) (internal citations omitted). The Supreme Court has declared that “prior restraints on speech … are the most serious and least tolerable infringement on First Amendment rights.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976) . “Any system of prior restraints on expr ession comes to [th e Supreme Court] bearing a heavy presumpti on against its constitutional validity.” New York Times v. United States, 403 U.S. 713, 714 (1971). The Defendants have issued an administrative regulation forbidding Plaintiffs from engaging in speech to their TPA. This is “forbidding [of] communications . . . in advance.” Alexander, 509 U.S. at 550.
The government cannot meet its burden to sa tisfy strict scrutiny either for its compelled speech or its censor ship of speech. As discussed above, the government has conceded in similar cases it fa ils the compelling interest test. See Reaching Souls Int’l, 2013 WL 6804259 at *6. The government has not shown any compelling interest to justify burdening Family Talk ’s speech. And violating F amily Talk’s freedom of speech is not the least restrictive means of pursuing any compelling interest. See also Riley v. Nat’l Fed’n of the B lind of N.C. , 487 U.S. 781, 799–801 (1988) (requiring government efforts in the alternative).
31

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 40 of 47

II. Plaintiffs Will Suffer Irreparable Harm Absent an Injunction.

Plaintiffs seek to continue offering their employee insurance plan witho ut

providing abortifaicents and related coun seling and education, and without being

subject to the Mandate’s harsh penalties, la wsuits, and other liability. Without the

requested injunction, Plaintiffs would be coerced in v iolation of their rights under RF RA

and the First Amendment, causing actual

and imminent loss of their religiou s

conscience rights. This is irreparable injury. Hobby Lobby ruled that irreparable injury is

satisfied in the presence of the Mandate’s violation of RFRA—and noted that the same

is true for constitutional violations. Hobby Lobby, 723 F.3d at 1146. Irreparable harm is

therefore established here as well.

III. The Balance of Equities Strongly Favors the Plaintiffs. The balance of equities strongly favors the Plaintiffs in this cas e. Family T alk’s
plan already omits abortifacients, and thr ough a “safe harbor” for non-profits the government has already delayed the impact of the Mandate on Family Talk well beyond the Mandate’s application to other entities. The government will suffer minimal, if any, harm if the injunction is instit uted for the duration of this case as well. The government is already withholding the Mandate not only from tens of millions of women in grandfathered plans, but is al so withholding enforcement fr om non-profit organizations indistinguishable from Family Talk except that their plans are not subject to ERISA. And Defendants have conceded that in organiz ations likely to have employees that share their beliefs on contr aception, an exemptio n serves the government’s own interests. Granting preliminary injunctive relief will m erely prevent Defendants from enforcing the

32

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 41 of 47
Mandate against one religious entity. Defendants ca nnot possibly show t hat applying the Mandate to one entity would “substantially injure” others’ interests. Any minimal harm in not applying t he Mandate against one addi tional entity, in light of Defendants’ willingness to not enf orce it aga inst thousands of others, “pales in comparison to the possible infringement upon Plaintiffs’ c onstitutional and statutory rights.” Newland v. Sebelius, 881 F. Supp. 2d 1287, 1295 (D. Colo. 2012), aff’d 2013 WL 5481997 (10th Cir. Oct. 3, 2013).
Balanced against this non-injury to Defend ants is the r eal and immediate threat to Plaintiffs integrity of religious belief. T hey face the imminent prospect of being forced to cover or order cov erage in violation of their religious beliefs, or suffering massiv e penalties that Defendants obstinately declare they intend to apply. See Reaching Souls Int’l, 2013 WL 6804259 at *8 (finding balanc e of equities in favor of non-profit challengers to the Mandate); Southern Nazarene, 2013 WL 6804265, at *10–*11 (same).
IV. The Public Interest Would Be Served by a Preliminary Injunction. The public interest is served by granti ng Plaintiffs’ motion for preliminary
injunction where fundamental rights protected by the Cons titution are at stake. “Vindication of First Amendment freedoms is clearly in the public interest.” Pacific Frontier v. Pleas ant Grove City, 414 F.3d 1221, 1237 (1 0th Cir. 2005). The government’s purported interests in “improvi ng the health of wo men and c hildren and equalizing the coverage of preventive servic es for women and men so that women who choose to do so can be a part of the workfo rce on an equal p laying field with men . . . are countered, and indeed outweighe d, by the public interest in the free exercise o f
33

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 42 of 47
religion.” Newland, 881 F. Supp. at 1295 (i nternal citations omitted). Furthermore, any interest of Defendants in uniform applicatio n of the Mandate is “undermined by the creation of exemptions for certain reli gious organizations and employers with grandfathered health insurance plans and a temporary enforcement safe harbor for nonprofit organizations.” Id.; see also Reaching Souls Int ’l, 2013 WL 6804259 at *8 (finding public interest factor in favor of non- profit challengers to the Mandate); Southern Nazarene, 2013 WL 6804265, at *11 (same).
Conclusion For the foregoing reasons, the Plaintiffs respectfully request that this Court grant their motion for preliminary injunction.
Respectfully submitted,
s/ Matthew S. Bowman Gregory S. Baylor (Texas Bar No. 01941500) Matthew S. Bowman (DC Bar No. 993261) ALLIANCE DEFENDING FREEDOM 801 G Street, NW, Suite 509 Washington, DC 20001 (202) 393-8690 (202) 347-3622 (facsimile) gbaylor@alliancedefendingfreedom.org mbowman@alliancedefendingfreedom.org L. Martin Nussbaum (Colorado Bar No. 22613) LEWIS ROCA ROTHGERBER LLP 90 South Cascade Ave., Suite 1100 Colorado Springs, CO 80903-1662 (719) 386-3000 (719) 386-3070 mnussbaum@LRRLaw.com
34

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 43 of 47
David A. Cortman (Georgia Bar No. 188810) ALLIANCE DEFENDING FREEDOM 1000 Hurricane Shoals Road, NE, Suite D-
1100 Lawrenceville, GA 30043 (770) 339-0774 (770) 339-6744 (facsimile) dcortman@alliancedefendingfreedom.org
Kevin H. Theriot (Kansas Bar No. 21565) ALLIANCE DEFENDING FREEDOM 15192 Rosewood Leawood, KS 66224 (913) 685-8000 (913) 685-8001 (facsimile) ktheriot@alliancedefendingfreedom.org
Michael J. Norton (Colorado Bar No. 6430) ALLIANCE DEFENDING FREEDOM 7951 E. Maplewood Avenue, Suite 100 Greenwood Village, CO 80111 (480) 388-8163 (303) 694-0703 (facsimile) mjnorton@telladf.org
Jeremy D. Tedesco (Arizona Bar No. 023497) ALLIANCE DEFENDING FREEDOM 15100 N. 90th Street Scottsdale, AZ 85260 (480) 444-0020 (480) 444-0028 jtedesco@alliancedefendingfreedom.org
Attorneys for Plaintiffs
35

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 44 of 47
CERTIFICATE OF SERVICE The undersigned attorney for Plaintiffs, Matthew S. Bowman, hereby certifies that the following counsel for Defendants was served with the preceding document by email, with consent of such counsel, on January 21, 2014:
Michelle Bennett, Esq. Trial Attorney U.S. Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Avenue, NW Washington, D.C. 20001 Michelle.Bennett@usdoj.gov

Matthew

s/ Matthew S. Bowman S. Bowman, Esq.

36

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 45 of 47
EXHIBIT 1

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 46 of 47
EBSA FORM 700-- CERTIFICATION (To be used for plan years beginning on or after January 1, 2014)
This form is to be used to certify that the health coverage established or maintained or arranged by the organization listed below qualifies for an accommodation with respect to the federal requirement to cover certain contraceptive services without cost sharing, pursuant to 26 CFR 54.9815-2713A, 29 CFR 2590.715-2713A, and 45 CFR 147.131.
Please fill out this form completely. This form must be completed by each eligible organization by the first day of the first plan year beginning on or after January 1, 2014, with respect to which the accommodation is to apply, and be made available for examination upon request. This form must be maintained on file for at least 6 years following the end of the last applicable plan year. Name of the objecting organization
Name and title of the individual who is authorized to make, and makes, this certification on behalf of the organization
Mailing and email addresses and phone number for the individual listed above
I certify that, on account of religious objections, the organization opposes providing coverage for some or all of any contraceptive services that would otherwise be required to be covered; the organization is organized and operates as a nonprofit entity; and the organization holds itself out as a religious organization.
Note: An organization that offers coverage through the same group health plan as a religious employer (as defined in 45 CFR 147.131(a)) and/or an eligible organization (as defined in 26 CFR 54.9815-2713A(a); 29 CFR 2590.715-2713A(a); 45 CFR 147.131(b)), and that is part of the same controlled group of corporations as, or under common control with, such employer and/or organization (within the meaning of section 52(a) or (b) of the Internal Revenue Code), may certify that it holds itself out as a religious organization.
I declare that I have made this certification, and that, to the best of my knowledge and belief, it is true and correct. I also declare that this certification is complete.
______________________________________ Signature of the individual listed above
______________________________________ Date

Case 1:13-cv-03326-REB-CBS Document 19 Filed 01/21/14 USDC Colorado Page 47 of 47
The organization or its plan must provide a copy of this certification to the plan’s health insurance issuer (for insured health plans) or a third party administrator (for self-insured health plans) in order for the plan to be accommodated with respect to the contraceptive coverage requirement.
Notice to Third Party Administrators of Self-Insured Health Plans
In the case of a group health plan that provides benefits on a self-insured basis, the provision of this certification to a third party administrator for the plan that will process claims for contraceptive coverage required under 26 CFR 54.9815-2713(a)(1)(iv) or 29 CFR 2590.7152713(a)(1)(iv) constitutes notice to the third party administrator that the eligible organization:
(1) Will not act as the plan administrator or claims administrator with respect to claims for contraceptive services, or contribute to the funding of contraceptive services; and
(2) The obligations of the third party administrator are set forth in 26 CFR 54.9815-2713A, 29 CFR 2510.3-16, and 29 CFR 2590.715-2713A.
This certification is an instrument under which the plan is operated.
PRA Disclosure Statement
According to the Paperwork Reduction Act of 1995, no persons are required to respond to a collection of information unless it displays a valid OMB control number. The valid OMB control number for this information collection is 1210-0150. Each organizations that seeks to be recognized as an eligible organization that qualifies for an accommodation with respect to the federal requirement to cover certain contraceptive services without cost sharing is required to complete this self-certification from pursuant to 26 CFR 54.9815-2713A(a)(4) in order to obtain or retain the benefit of the exemption from covering certain contraceptive services. The self-certification must be maintained in a manner consistent with the record retention requirements under section 107 of the Employee Retirement Income Security Act of 1974, which generally requires records to be retained for six years. The time required to complete this information collection is estimated to average 50 minutes per response, including the time to review instructions, gather the necessary data, and complete and review the information collection. If you have comments concerning the accuracy of the time estimate(s) or suggestions for improving this form, please write to: U.S. Department of Labor, Employee Benefits Security Administration, Office of Policy and Research, 200 Constitution Avenue, N.W., Room N-5718, Washington, DC 20210 or email ebsa.opr@dol.gov and reference the OMB Control Number 1210-0150.

 
 Case 1:13-cv-03326-REB-CBS Document 30 Filed 02/14/14 USDC Colorado Page 1 of 38
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-03326-REB-CBS
Dr. JAMES C. DOBSON, and FAMILY TALK
Plaintiffs,
v.
KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, THOMAS E. PEREZ, in his official capacity as Secretary of the United States Department of Labor, UNITED STATES DEPARTMENT OF LABOR, JACOB J. LEW, in his official capacity as Secretary of the United States Department of the Treasury, and UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants.
DEFENDANTS’ MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Case 1:13-cv-03326-REB-CBS Document 30 Filed 02/14/14 USDC Colorado Page 2 of 38
TABLE OF CONTENTS INTRODUCTION............................................................................................................. 1 BACKGROUND .............................................................................................................. 4 STANDARD OF REVIEW ............................................................................................... 8 ARGUMENT.................................................................................................................... 8
I. DR. DOBSON LACKS STANDING ............................................................ 8 II. PLAINTIFFS HAVE NOT SHOWN A LIKELIHOOD OF SUCCESS ON
ANY OF THEIR CLAIMS ......................................................................... 10 A. Plaintiffs’ Religious Freedom Restoration Act Claim Fails................ 10 B. The Regulations Do Not Violate the Establishment Clause............... 17 C. The Regulations Do Not Violate the Free Exercise Clause............... 21 D. The Regulations Do Not Violate the Free Speech Clause ................ 25 III. PLAINTIFFS CANNOT ESTABLISH THE REMAINING ELEMENTS FOR A PRELIMINARY INJUNCTION ...................................................... 27 CONCLUSION .............................................................................................................. 29
i

Case 1:13-cv-03326-REB-CBS Document 30 Filed 02/14/14 USDC Colorado Page 3 of 38
TABLE OF AUTHORITIES
Cases
Abdulhaseeb v. Calbone, 600 F.3d 1301 (10th Cir. 2010) .................................................................................. 16
Am. Family Ass'n v. FCC, 365 F.3d 1156 (D.C. Cir. 2004) .................................................................................. 23
Autocam Corp. v. Sebelius, 2012 WL 6845677 (W.D. Mich. Dec. 24, 2012)...................................................passim
Autocam Corp. v. Sebelius, 730 F.3d 618 (6th Cir. 2013) ...................................................................................... 10
Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004) .................................................................................. 23
Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687 (1994)................................................................................................... 18
Bowen v. Roy, 476 U.S. 693 (1986)................................................................................................... 13
Briscoe v. Sebelius, 927 F. Supp. 2d 1109 (D. Colo. 2013) ....................................................................... 26
Catholic Charities of Diocese of Albany v. Serio, 859 N.E. 2d 459 (N.Y. 2006) .................................................................... 19, 20, 22, 26
Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67 (Cal. 2004) ......................................................................................... 22, 26
Catholic Diocese of Nashville v. Sebelius, 2013 WL 6834375 (M.D. Tenn. Dec. 26, 2013) ............................................. 17, 22, 26
Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158 (2001)................................................................................................... 10
Children's Healthcare Is a Legal Duty, Inc. v. Min De Parle, 212 F.3d 1084 (8th Cir. 2000) .................................................................................... 19
Church of Jesus Christ of Latter Day Saints v. Amos, 483 U.S. 327 (1987)............................................................................................. 20, 21
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)....................................................................................... 22, 23, 24
ii

Case 1:13-cv-03326-REB-CBS Document 30 Filed 02/14/14 USDC Colorado Page 4 of 38
Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir. 2008) .................................................................................. 20
Conestoga Wood Specialties Corp. v. Sebelius, 917 F. Supp. 2d 394 (E.D. Pa. 2013)..................................................................passim
Connection Distrib. Co. v. Reno, 154 F.3d 281 (6th Cir. 1998) ...................................................................................... 28
Cornish v. Dudas, 540 F. Supp. 2d 61 (D.D.C. 2008) ............................................................................. 28
Cutter v. Wilkinson, 544 U.S. 709 (2005)............................................................................................. 18, 19
Droz v. Comm'r of IRS, 48 F.3d 1120 (9th Cir. 1995) ...................................................................................... 19
Eden Foods, Inc. v. Sebelius, 2013 WL 1190001 (E.D. Mich. Mar. 22, 2013)........................................................... 22
Empt. Div., Dep't of Human Res. of Or. v. Smith, 494 U.S. 872 (1990)................................................................................................... 22
Fraternal Order of Police v. City of Newark, 170 F.3d 359 (3d Cir. 1999) ....................................................................................... 25
Garner v. Kennedy, 713 F.3d 237 (5th Cir. 2013) .......................................................................... 10, 11, 16
Geneva Coll. v. Sebelius, 2013 WL 838238 (W.D. Penn. Mar. 6, 2013) ............................................................. 22
Gillette v. United States, 401 U.S. 437 (1971)............................................................................................. 18, 19
Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643 (10th Cir. 2006) .................................................................................... 23
Grote Indus. v. Sebelius, 914 F. Supp. 2d 943 (S.D. Ind. 2012) .................................................................passim
Henderson v. Kennedy, 253 F.3d 12 (D.C. Cir. 2001) ...................................................................................... 10
Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278 (W.D. Okla. 2012) ................................................................... 22
iii

Case 1:13-cv-03326-REB-CBS Document 30 Filed 02/14/14 USDC Colorado Page 5 of 38
Hobby Lobby v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) ................................................................ 11, 16, 22, 27
Kaemmerling v. Lappin, 553 F.3d 669 (D.C. Cir. 2008).............................................................................passim
Korte v. HHS, 912 F. Supp. 2d 735 (S.D. Ill. 2012)........................................................................... 22
Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013) ...................................................................................... 18
Larson v. Valente, 456 U.S. 228 (1982)....................................................................................... 18, 19, 20
Levitan v. Ashcroft, 281 F.3d 1313 (D.C. Cir. 2002) .................................................................................. 25
Liberty Univ., Inc. v. Lew, 733 F.3d 72 (4th Cir. 2013) ........................................................................................ 21
Living Water Church of God v. Charter Twp. Of Meridian, 258 Fed. App'x 729 (6th Cir. 2007) ............................................................................ 16
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)..................................................................................................... 9
Michigan Catholic Conf. v. Sebelius, 2013 WL 6838707 (W.D. Mich. Dec. 27, 2013)...................................................passim
MK Chambers Co. v. U.S. Dep't of Health & Human Servs., 2013 WL 1340719 (E.D. Mich. Apr. 3, 2013) ....................................................... 22, 26
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969)................................................................................................... 27
O'Brien v. HHS, 894 F. Supp. 2d 1149 (E.D. Mo. 2012) ...............................................................passim
Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978)................................................................................................... 27
Olsen v. DEA, 878 F.2d 1458 (D.C. Cir. 1989) .................................................................................. 18
Potthoff v. Morin, 245 F.3d 710 (8th Cir. 2001) ........................................................................................ 9
iv

Case 1:13-cv-03326-REB-CBS Document 30 Filed 02/14/14 USDC Colorado Page 6 of 38
Priests for Life v. HHS, 2013 WL 6672400 (D.D.C. Dec. 19, 2013) .........................................................passim
Roman Catholic Archbishop of Washington v. Sebelius, 2013 WL 6729515 (D.D.C. Dec. 20, 2013) .................................................... 17, 22, 26
Rumsfeld v. Forum for Academic & Inst. Rights, Inc., 547 U.S. 47 (2006)............................................................................................... 25, 26
Sharpe Holdings, Inc. v. HHS, 2012 WL 6738489 (E.D. Mo. Dec. 31, 2012) ............................................................. 22
Smith Setzer & Sons, Inc. v. S.C. Procurement Review Panel, 20 F.3d 1311 (4th Cir. 1994) .................................................................................. 9, 10
Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) .................................................................................... 29
Swanson v. Guthrie Indep. Sch. Dist., 135 F.3d 694 (10th Cir. 1998) .................................................................................... 23
Thomas v. Review Bd. of the Ind. Emp't Sec. Div., 450 U.S. 707 (1981)............................................................................................. 10, 15
Turner Construction Co. v. United States, 94 Fed. Cl. 561 (Fed. Cl. 2010).................................................................................. 21
United States v. Amer, 110 F.3d 873 (2d Cir. 1997) ....................................................................................... 23
Univ. of Notre Dame v. Sebelius, 2013 WL 6804773 (N.D. Ind. Dec. 20, 2013) ......................................................passim
Walz v. Tax Commission of New York, 397 U.S. 664 (1970)................................................................................................... 21
Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982)................................................................................................... 28
Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338 (2d Cir. 2007) ....................................................................................... 16
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)......................................................................................................... 8
v

Case 1:13-cv-03326-REB-CBS Document 30 Filed 02/14/14 USDC Colorado Page 7 of 38
Statutes 26 U.S.C. § 5000A(d)(2)(A) and (B) .............................................................................. 24 29 U.S.C. § 1003(b)(2) .................................................................................................. 20 42 U.S.C. § 18011......................................................................................................... 24 42 U.S.C. § 2000bb-1.............................................................................................. 10, 11 42 U.S.C. § 300gg-13.................................................................................................. 4, 9 Regulations 26 C.F.R. § 54.9815-2713A(b)(1)(iii) ............................................................................. 27 29 C.F.R. § 2590.715-2713A .................................................................................... 9, 27 45 C.F.R. § 147.130(a)(1) ........................................................................................... 7, 9 45 C.F.R. § 147.131 .................................................................................................... 5, 7 45 C.F.R. § 147.140 ...................................................................................................... 24
vi

Case 1:13-cv-03326-REB-CBS Document 30 Filed 02/14/14 USDC Colorado Page 8 of 38
INTRODUCTION Plaintiffs ask this Court to enjoin regul ations that are intended t o accommodate religious exercise while helpi ng to ensure t hat women have acc ess to health coverage, without cost-sharing, for prevent ive services that medical experts deem necessary for women’s health and well-being. Subject to an exemption for houses of worship and their integrated auxiliaries, and ac commodations for cert ain other non-profit religiou s organizations, as disc ussed below, the r egulations require certain group health plan s and health insurance issuers to provide co verage, without cost-sharing (such as a copayment, coinsurance, or a deductible), for, among other things, all Food and Drug Administration (FDA)-approved contraceptiv e methods, sterilization proced ures, and patient education and c ounseling for women with reproducti ve capacity, as prescribed by a health care provider. When the contraceptive-cove rage requirement was fir st established, in August 2011, certain non-profit religi ous organizations objected on religious grounds to having to provide contraceptive coverage in t he group health plans they offer to their employees. Although, in the go vernment’s view, these organi zations were mistaken to claim that an accommodation was requir ed under the First Amendment or the Religious Freedom Restoration Act (RFRA), the defendant Departments decided to accommodate the concerns expressed by these organizations. First, they established an exemption for the group health plans of houses of worship and their integr ated auxiliaries (and an y associated group health insurance cove rage). In addition, they established accommodations for the group health plans of eligible non-profit religious organizations, like plaintiff Family Talk (and any associ ated group health insurance coverage), that relieve them of responsib ility to contract , arrange, pay, or refer for contraceptive coverage or services, but t hat also ensur e that the wo men who participate in these plans are not denied access to contracept ive coverage without cost-sharing. To be eligible for an accommodation, the organization merely needs to certify that it meets the

Case 1:13-cv-03326-REB-CBS Document 30 Filed 02/14/14 USDC Colorado Page 9 of 38
eligibility criteria, i.e., that it is a non-profit organization that holds itself out as religiou s and has a religious objection to providing coverage for some or all contraceptives. Once the organization certifies that it meets these criteria, it need not contract, arrange, pay, or refer for contraceptive coverage or serv ices. If the organization has third-party insurance, the third-party insurer takes on the responsibility to provide contraceptive coverage to the organization’s employees and covered dependents. If the group healt h plan of the organization is s elf-insured—like Family Talk’s—its third-party administrator (TPA) has responsib ility to arrange contrac eptive coverage for the organization ’s employees and covered dependents. In neither case does the obj ecting employer bear the cost (if any) of providin g contraceptive coverage; nor does it administer suc h coverage; nor does it contract or otherwise arrange for such coverage; nor does it refer for such coverage.
Remarkably, plaintiffs now declare t hat these ac commodations themselves violate their rights under RFRA and the Fi rst Amendment. They c ontend that the mere act of certifying that Family Talk is eligible for an accommodation is a substantial burden on its religious exercise becaus e, once it make s the certification, its employees will be able to obtain contraceptive coverage th rough other parties. This extraordinary contention suggests that plaint iff not only s eeks to avoid pay ing for, administering, or otherwise providing contraceptive coverage itself, but al so seeks to prevent the women who work for the organization f rom obtaining such coverage, even if through other parties. At bottom, plaintiffs’ posit ion seems to be that any asserted burden, no matter how de minimis, amounts to a substantial burden under RFRA. That is not the law. Congress amended the initial version of RFRA to add the word “s ubstantially,” and thus made clear that “any burden” would not suffice.
Plaintiffs’ motion for preliminary injunction should be denied because plaintiffs have not shown that they are lik ely to succeed on the merits of any of their claims. As an initial matter, Dr. Dobson lack s standing because the preventive services coverage
2

Case 1:13-cv-03326-REB-CBS Document 30 Filed 02/14/14 USDC Colorado Page 10 of 38
provision and accommodations he challenges do not apply to him; they apply only t o group health plans, health ins urance issuers, and eligible or ganizations. With respect to plaintiffs’ RFRA claim, plaintiffs cannot esta blish a substantial burden on their religious exercise—as they must—because the regulati ons do not require plaintiffs to change their behavior in any significant way. Plaintiffs are not required to contract, arrange, pay, or refer for contraceptive cov erage. To the c ontrary, plaintiffs are free to c ontinue to refuse to do so, to voice their disapproval of contraception, and to encourage Family Talk’s employees to refrain from using cont raceptive services. Family Talk is required only to inform its TPA that it objects to pr oviding contraceptive co verage, which it has done or would have to do volunt arily even absent these regulat ions in order to ensur e that it is not responsible for c ontracting, arranging, paying, or referring for such coverage. Family Talk can hardly claim that it is a violation of RF RA to require it to d o almost exactly what it would do in the ordinary course. See Priests for Life v. HHS, __ F. Supp. 2d __, 2013 WL 6672400, at *5-10 (D .D.C. Dec. 19, 2013) (addressing these regulations), injunction pending appeal granted , No. 13-5368 (D. C. Cir. Dec. 31, 2013); Univ. of Notre Dame v. Sebelius, __ F. Supp. 2d __, 2013 WL 6804773, at *7-14 (N.D. Ind. Dec. 20, 2013) (same), injunction pending appeal denied , No. 13-3853 (7th Cir. Dec. 30, 2013); Michigan Catholic Conf. v. Sebelius , No. 1:13-CV-1247, 2013 WL 6838707, at *4-8 (W.D. Mich. Dec. 27, 2013) (same), injunction pending appeal granted, No. 13-2723 (6th Cir. Dec. 31, 2013). And t he regulations do not require anything of Dr. Dobson, as they govern only Family Talk.
Plaintiffs’ First Amendment claim s are e qually meritless. Indeed, nearly every court to consider similar First Amendment challenges to the regulations has rejected the claims. Finally, plaintiffs cannot satisfy the remaining requirem ents for obtainin g a preliminary injunction.1
1 Plaintiffs have requested oral argument. Defendants do not believe oral argument is necessary but do not oppose it if the Court believes it would be helpful.
3

Case 1:13-cv-03326-REB-CBS Document 30 Filed 02/14/14 USDC Colorado Page 11 of 38
BACKGROUND Before the Patient Protection and Affordabl e Care Act ( “ACA”), Pub. L. No. 111148, 124 Stat. 119 (2010), many Americans did not receive the preventive health care they needed to stay healthy, avoid or delay t he onset of disease, lead produc tive lives, and reduce health c are costs. Due largely t o cost, Americans us ed preventive services at about half the recommended rate. See INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS 19-20, 109 (2011) (“IOM R EP.”), AR at 317-18, 407. 2 Section 1001 of the ACA— which includes the preventive se rvices coverage provisio n relevant here—seeks to cure this problem by making preventive care accessible and affordable for many more Americans. Specifically, the provision requires all group health plans and health insurance issuers that offer non-grandf athered group or individual health coverage to provide coverage for ce rtain preventive services without costsharing, including, “[for] wom en, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Res ources and Services Administration [(HRSA)].” 42 U.S.C. § 300gg-13(a)(4).3 Because there were no existing HRSA guid elines relating to preventive care and screening for women, the Depar tment of Health and Human Services (HHS) requested that the Institute of Medicine (IOM) develop recommendations to implement the requirement to provide coverage, without co st-sharing, of preventive s ervices for women. IOM R EP. at 2, AR at 300.4 After conducting an extensive sc ience-based
2 Where appropriate, defendants have provided parallel citations to the Administrative Record (AR), which is being filed contemporaneously with this brief. 3 This provision al so applies to immunizations, cholesterol screening, blood pressure screenin g, mammography, cervical cancer screening, screening and counseling for sexually transmitted infections, domestic violence counseling, depression screening, obesity screening and counseling, diet counseling, hearing loss screening for newborns, autism screening for children, developmental screening for children, alcohol misuse counseling, tobacco use counseling and interventions, well-woman visits, breastfeeding support and supplies, and many oth er preventive services. See, e.g., U.S. Preventive Se rvices Task Force A and B Recommendations, http://www.uspreventiveservicestaskforce.org/uspstf/uspsabrecs.htm. 4 IOM, which was established by the Na tional Academy of Sciences in 197 0, is funded by Congress to provide expert advice to the federal government on matters of public health. IOM REP. at iv, AR at 289.
4

Case 1:13-cv-03326-REB-CBS Document 30 Filed 02/14/14 USDC Colorado Page 12 of 38

review, IOM recommended that HRSA guideli nes include, among other t hings, well-

woman visits; breastfeeding support; domesti c violence screening; and, as relevant

here, “the full range of [FDA]-approved cont raceptive methods, sterilization procedures,

and patient education and c ounseling for women with reproductive capacity.” Id. at 10-

12, AR at 308-10. FDA-appr oved contraceptive m ethods include diaphragms, oral

contraceptive pills, emergency contracept ives (such as Plan B and Ella), an

d

intrauterine devices (“IUDs”). See id. at 105, AR at 403. IOM determined that coverage,

without cost-sharing, for these services is necessary to increase acces s to such

services, and thereby reduce unintended pregnancies (and the negative health

outcomes that disproportionately accom pany unintended pregnancie s) and promot e healthy birth spacing. See id. at 102-03, AR at 400-01.5

On August 1, 2011, HRSA adopted gui

delines consistent with I OM’s

recommendations, subject to an exempt ion relating to certain religious employers

authorized by regulations issued that same day (the “2011 amended interim final

regulations”). See HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines (“HRSA Guidelines”), AR at 283-84. 6 Group health plans

established or maintained by these religio us employers (and as sociated group health

insurance coverage) are exempt from any requirement to cover contraceptive services

consistent with HRSA’s guidelines. See id.; 45 C.F.R. § 147.131(a).

5 At least twenty-eight states have laws requiring health insurance policies that cover prescription drugs to also provide coverage for FDA-approved contraceptives. See Guttmacher Institute, State Policies in Brief: Insurance Coverage of Contraceptives (June 2013), AR at 1023-26. 6 To qualify for the religious employer exemption contained in the 2011 amended interim final regulations, an employer had to meet the following criteria:
(1) The inculcation of religious values is the purpose of the organization; (2) the organization primarily employs persons who share the religious tenets of th e
organization; (3) the organization serves primarily persons who share the religious tenets of th e
organization; and (4) the organization is a nonprofit organization as described in section 6033(a)(1) and
section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended. 76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011), AR at 220.
5

Case 1:13-cv-03326-REB-CBS Document 30 Filed 02/14/14 USDC Colorado Page 13 of 38
In February 2012, the governm ent adopted in final r egulations the definition of “religious employer” contained in the 2011 amended interim final regul ations while also creating a temporary enforcement safe harbor for non-grandfathered group health plans sponsored by certain non-profit organizations with religious objections to contraceptive coverage (and any associated gr oup health insurance coverage). See 77 Fed. Reg. 8725, 8726-27 (Feb. 15, 2012), A R at 213-14. The government committed to undertak e a new rulemaking during the s afe harbor period to adopt ne w regulations to further accommodate non-grandfathered non-profit religious organizations’ religious objections to covering contraceptive services. Id. at 8728, AR at 215. The regulations challenged here (the “2013 final rules”) represent the culmination of that process. See 78 Fed. Reg. 39,869 (July 2, 2013), AR at 1-31; see also 77 Fed. Reg. 16,501 (Mar. 21, 2012) (Advance Notice of Proposed Rulemaking (ANPRM)), AR at 186-93; 78 Fed. Reg. 8456 (Feb. 6, 2013) (Notice of Proposed Rulemaking (NPRM)), AR at 165-85.
The 2013 final rules represent a significant accommodation by the government of the religious objections of ce rtain non-profit religious or ganizations while promoting two important policy goals. The regulations provide women who work for non-profit religious organizations with ac cess to c ontraceptive coverage without cost sharing, thereby advancing the compelling gov ernment interests in safeguardi ng public health and ensuring that women have equal access to health care. The regulations adv ance these interests in a narrowly tailored fashion that does not require non-profit religious organizations with religious objections to pr oviding contraceptive coverage to contract, pay, arrange, or refer for that coverage.
The 2013 final rules simplify and clarify the religious employer exemption by eliminating the first three criteria and clarifying the f ourth criterion. See supra n. 6. Under the 2013 final rules, a “religious em ployer” is “an organiz ation that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (a)(3)(A)(iii) of the Internal Rev enue Code of 1986, as amended,” whic h refers to
6

Case 1:13-cv-03326-REB-CBS Document 30 Filed 02/14/14 USDC Colorado Page 14 of 38

churches, their integrated auxi liaries, and conventions or asso ciations of churches, and the exclusively religious activities of any religious or der. 45 C.F.R. § 147.131(a). The changes made to the definition of religious employer in the 2013 final rules are intended to ensure “that an otherwise ex empt plan is not disqualif ied because the employer’s purposes extend beyond the inculcation of religious values or because the employer hires or serves people of different religious faiths.” 78 Fed. Reg. at 39,874, AR at 6.
The 2013 final rules also establish ac commodations with respect to the contraceptive coverage requirement for group health plans established or maintained by “eligible organizations” (and group health in surance coverage provided in connection with such plans). Id. at 39,875-80, AR at 7-12; 45 C. F.R. § 147.131(b). An “eligible organization” is an organization that satisfies the following criteria:

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

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

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

(4) The organization self-certifies, in a form and manner specified by the

Secretary, that it satisfies the criteria in par agraphs (b)(1) through (3) of

this section, and makes such s elf-certification available for examination

upon request by the first day of t

he first plan year to w hich the

accommodation in paragraph (c) of this section applies.

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

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

arrange, pay, or refer for contraceptive coverage” to which it has religious objections. 78

Fed. Reg. at 39,874, AR at 6. To be reliev ed of any such obligations, the 2013 fin al

rules require only that an elig ible organization complete a se lf-certification form stating

that it is an eligible organizati on and provide a copy of that se lf-certification to its issuer

or TPA. Id. at 39,878-79, AR at 10- 11. Its participants and benef iciaries, however, will

7

Case 1:13-cv-03326-REB-CBS Document 30 Filed 02/14/14 USDC Colorado Page 15 of 38
still benefit from sepa rate payments for co ntraceptive services without co st sharing or other charge. Id. at 39,874, AR at 6. In the case of an organization with an insured group health plan, the organiz ation’s health in surance issuer, upon receipt of the selfcertification, must provide separate paym ents to plan participant s and beneficiaries f or contraceptive services without cost sharing, premium, fee, or other charge to plan participants or beneficiaries, or to t he eligible organization or its plan. See id. at 39,87577, AR at 7-9. In the case of an organizati on with a self-insured group health plan— such as Family Talk—the organization’s TPA, upon receipt of the self-certification, must provide or arrange separate pay ments for contraceptive se rvices for participants and beneficiaries in the plan without cost-sharing, premium, f ee, or other charge to plan participants or beneficiaries, or to t he eligible organization or its plan. See id. at 39,87980, AR at 11-12. Any costs incurred by the TPA will b e reimbursed through an adjustment to Federally-facilitated Exchange (FFE) user fees. See id. at 39,880, AR at 12.7
STANDARD OF REVIEW To obtain a preliminary injunction, a plaintiff must make “a clear showing” that “he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 22 (2008).
ARGUMENT I. DR. DOBSON LACKS STANDING
Plaintiffs’ request for a preliminary inj unction as to the claims of Dr. Dobson should be denied at the outset because Dr. Dobson lacks standing. “[T]he irreducible
7 The 2013 final rules generally apply to group health plans and health insurance issuers for plan years beginning on or after January 1, 2014, see 78 Fed. Reg. at 39,872, AR at 4, except that the amendments to the religious employer exemption apply to gr oup health plans and group health insurance issuers for plan years beginning on or after August 1, 2013, see id. at 39,871, AR at 3.
8

Case 1:13-cv-03326-REB-CBS Document 30 Filed 02/14/14 USDC Colorado Page 16 of 38
constitutional minimum of standing” requires that a plaintiff (1) have suffered an injury i n fact, (2) that is caused by the defendant’s c onduct, and (3) that is like ly to be redressed by a favorable ruling. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). As to the injury prong, a plaintiff must demonstrate that he has “suffered an injury in fact—an invasion of a legally protected interest whic h is (a) concrete and particularized, and (b) actual or imminent, not conj ectural or hypothetical.” Id. at 560 (quotations omitted). The requirement of a caus al connection between the defendant’s conduct and the plaintiff’s injury means that the injury must be “fai rly traceable to the challenged action of the defendant, and not the result of the independent action of so me third party not before the court.” Id. (citation omitted).
Here, Dr. Dobson cannot show that he is injured at al l—let alone that his alleged injury stems from the challenged regul ations—because the law he challenges does not apply to him. The preventive services coverage provision applies to “group health plans” and “health insuranc e issuers,” 42 U.S.C. § 300gg-13; 45 C.F. R. § 147.130(a)(1) (“[A] group health plan, or a health insurance i ssuer offering group or individual health insurance coverage, must provide coverage for all of the following items and services.”), and the accommodations pertain to “eligib le organizations,” 29 C.F.R. § 2590.7152713A(a), (b). Dr. Dobson is none of these. Thus, the only provision that Dr. Dobson challenges imposes no direct obligation or requirement on him. The obligations imposed by the challenged regulations ar e instead pl aced on Family Talk’s group health plan. And, under the accommodations, the self-cer tification form may be signed by any individual authorized to make the necessary certification on behalf of the organization ; Dr. Dobson is not required to do it. Dr. Dobson’s attempt to piggyback his claims onto those of Family Talk f ails as a matter of law. See, e.g., Potthoff v. Morin, 245 F.3d 710, 716 (8th Cir. 2001) (“Generally, if a harm has been directed toward the corporation, then only the c orporation has standi ng to assert a claim[.]”); Smith Setzer & Sons, Inc. v. S.C. Procurement Review Panel, 20 F.3d 1311, 1317 (4th Cir. 1994) (“It is considered a
9

Case 1:13-cv-03326-REB-CBS Document 30 Filed 02/14/14 USDC Colorado Page 17 of 38

fundamental rule that [a] shareholder—ev en the sole shareho lder—does not have standing to assert claims alleging wrongs to the corporation.”); see also Cedric Kushner Promotions, Ltd. v. King , 533 U.S. 158, 163 (2001) (“[I]ncorporation’s basic purpose is to create a distinct legal ent ity, with legal rights, obligat ions, powers, and privileges different from those of the natural individua ls who created it, who own it, or whom it employs.”); Autocam Corp. v. S ebelius, 730 F.3d 618, 623 (6th Cir. 2013). For similar reasons, the relief plaintiffs seek—an inj unction exempting Family T alk from the accommodations and the contraceptive c overage requirement—does not follow from any alleged injury to Dr. Dobs on. The Court, therefore, should deny plaintiffs’ motion for preliminary injunction as to Dr. Dobson for lack of jurisdiction.8

II. PLAINTIFFS HAVE NOT SHOWN A LIKEL IHOOD OF SUCCESS ON ANY OF THEIR CLAIMS A. Plaintiffs’ Religious Freedom Restoration Act Claim Fails

Under RFRA, Pub. L. No. 103-141, 107 Stat. 1488 (1993) (codified at 42 U.S.C.

§ 2000bb-1 et seq.), the federal government “shall no t substantially burden a person’s

exercise of religion” unless that burden is the least restrictive means t o further a

compelling governmental interest. 42 U.S.C. 2000bb-1. Importantly, “only substantial

burdens on the exercise of religion trigger

the c ompelling interest requirement. ”

Henderson v. Kennedy , 253 F.3d 12, 17 (D.C. Cir. 2001) (emphasis added). “A

substantial burden exists when government action puts ‘substantial press ure on an

adherent to modify his behavior and to violat e his beliefs.’” Kaemmerling v. Lappin, 553

F.3d 669, 678 (D.C. Cir. 2008) (citing Thomas v. Review Bd. of the Ind. Emp’t Sec. Div.,

450 U.S. 707, 718 ( 1981)). “An inconsequential or de minimis burden on religious

practice does not rise to this level, nor does a burden on activity unimportant to the

adherent’s religious sc heme.” Kaemmerling, 553 F.3d at 678; see Garner v. Kennedy ,

8 The Complaint also appears to allege claims on behalf of Dr. Dobson as an employee of Family Talk. But plaintiffs have not raised those claims in their motion for preliminary injunction, so defendants do not address them here other than to note that any such claims are also jurisdictionally barred and fail on the merits.
10

Case 1:13-cv-03326-REB-CBS Document 30 Filed 02/14/14 USDC Colorado Page 18 of 38

713 F.3d 237, 241-42 (5th Cir. 2013) (“In order to show a substantial burden, the

plaintiff must show that the challenged action ‘truly pressures the adherent to

significantly modify his religious behavior and significantly violate his religious beliefs.’”).

Plaintiffs cannot show—as they mu st—that the challenged regulation s

substantially burden their relig ious exercise. Plaintif fs contend the Tenth Circuit’s

decision in Hobby Lobby v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (en banc) “strongly

suggests” there is a substantial burden here, Pls.’ Mem. at 12 (E CF No. 19), but it does

not. Hobby Lobby addressed the RFRA claim of for-profit corporations, which, unlik e

Family Talk, are not eligib le for the accommodations and thus are requir ed by the

regulations to contract, arrange, and pay

for contraceptive coverage for their

employees. The court had no occasion to

consider whether the regulation’s

accommodations, which relieve e ligible non-profit religious organizations like Family

Talk of any obligation to contract, arrange, pay, or refer for contraceptive coverage ,

impose a substantial burden on religious exercise. They do not for the reason s

discussed below.

The regulations do not impose a substantial burden on plaintiffs because they do

not require plaintiffs to modify their behavior in any meaningful way. See Priests for Life,

2013 WL 6672400, at *5-10; Notre Dame, 2013 WL 6804773, at *7-14; Michigan

Catholic Conf., 2013 WL 6838707, at *4-8. To put this case

in its sim plest terms,

plaintiffs challenge regulations that require them to do next to nothi ng, except what they

would have to do even in the absence of the regulations. As explained above, the

regulations require nothing of Dr. Dobs on, and t hus do not impos e any burden on his

religious exercise, much less a substantial burden. Moreover, Family Talk, as an eligible

organization, is not required to contract, arrange, pay, or refer for contraceptive

coverage. To the contrary, it is free to continue to refuse to do so, t o voice its

disapproval of contraception, and to encour age its employees to refrain from usi ng

contraceptive services. Family Talk need only fulfill the self-certification requirement and

11

Case 1:13-cv-03326-REB-CBS Document 30 Filed 02/14/14 USDC Colorado Page 19 of 38
provide the completed self-certification to its TPA. It need not provide payments for contraceptive services to its employees. Instead, a third party—Family T alk’s TPA— provides payments for contraceptive services, at no cost to Family Talk. In short, with respect to contraceptive coverage, Family Talk need not do any thing more than it did prior to the promulgation of t he challenged regulations—that is, to inform its TPA that it objects to providing contracept ive coverage in order to ensur e that it is not responsible for contracting, arranging, paying, or referri ng for such coverage. Thus, the regulation s do not require plaintiffs “to modify [t heir] religious behav ior in any way.” Kaemmerling, 553 F.3d at 679. The Court’s inquiry shoul d end here. A law cannot be a substantial burden on religious exercise wh en “it involves no action or forbearance on [plaintiffs’] part, nor . . . otherwise interfer e[s] with any religious act in which [plaintiffs] engage[].” Kaemmerling, 553 F.3d at 679.
Because the regulations place no burden at all on plaintiffs, they plainly place no cognizable burden on their reli gious exercise. Plaintiffs’ contrary argument rests on an unprecedented and sweeping theory of what it means for religious exercise to be burdened. Not only does Family Talk want to be free from contra cting, arranging, paying, or referring for contraceptive serv ices for its employees —which, under thes e regulations, it is—but Family Talk would als o prevent anyone else from providing such coverage to its employees and their covere d dependents, who migh t not subscribe t o Family Talk’s religious beliefs. That this is the de facto impact of plaintiffs’ stated objections is made c lear by their assertion t hat RFRA is violated whenev er Family Talk “trigger[s]” a third party’s prov ision to Family Talk’s employees of services to whic h Family Talk objects. Compl. ¶¶ 6, 126 (E CF No. 1). This theory would mean, for example, that even the gov ernment would not realisti cally be able to provide contraceptive coverage to Family Talk’s employees, because such coverage would be “trigger[ed],” id., by Family Talk’s objection to providing such coverage itself. But RFRA is a shield, not a sword, see O’Brien v. HHS, 894 F. Supp. 2d 1149, 1158-60 (E.D. Mo.
12

Case 1:13-cv-03326-REB-CBS Document 30 Filed 02/14/14 USDC Colorado Page 20 of 38
2012), and accordingly it does no t prevent the government fr om providing alternative means of achiev ing important statutory objectives once it has provided a religious accommodation. Michigan Catholic Conf., 2013 WL 6838707, at * 8 (“The fac t that the scheme will continue to operate without them may offend Pla intiffs’ religious beliefs, but it does not substantia lly burden the exercise of those beliefs.”); Notre Dame, 2013 WL 6804773, at *8 (“Boiled to its ess ence, what Notre Dame essentially c laims is that the government's action after Notre Dame opt s out, in requiring the TPA to cover contraception, offends Notre Da me’s religious sens ibilities. And while I acc ept that the government’s and TPA’s actions do offend Notre Dame’s religi ous views, it’s not Notre Dame’s prerogative to dictate what healthcare services third parties may provide.”); cf. Bowen v. Roy, 476 U.S. 693, 699 (1986) (“The Free Exercise Cl ause simply cannot be understood to require the Government to conduc t its own internal affairs in ways that comport with the religious beliefs of particular citizens.”).
Plaintiffs’ RFRA challenge is similar to the claim that the D.C. Circuit rejected in Kaemmerling. There, a federal prisoner objected to the FBI’s collection of his DNA profile. 553 F.3d at 678. In concluding that this collection did no t substantially burden the prisoner’s religious exercise, the court reasoned that “[t]he extraction and storage of DNA information are entirely activities of the FBI, in which Kaemmerling plays no role and which occur after the BOP has taken his fluid or tissue sample (to which he does not object).” Id. at 679. In the court’s view, “[a]lt hough the government’s activities with his fluid or tissue sample after the BOP ta kes it may offend Kaemmerling’s relig ious beliefs, they cannot be said to hamper his religious exercise because they do no t pressure [him] to modify his behav ior and to violate his beliefs.” Id. (internal citation and quotation marks omitted). The sa me is true here, where the provision of c ontraceptive services is “entirely [an] activit[y] of [a thir d party], in which [plaintiffs] play[] n o role.” Id. As in Kaemmerling, “[a]lthough the [third party]’s activiti es . . . may offend [plaintiffs’] religious beliefs, they cannot be said to hamper [their] religious exercise.” Id.
13

Case 1:13-cv-03326-REB-CBS Document 30 Filed 02/14/14 USDC Colorado Page 21 of 38
Perhaps understanding the tenuous ground on which t heir RFRA c laim rests, given that the regulations do no t require Family Talk to contract, arrange, pay, or refer for contraceptive services, plaintiffs attempt to circumvent this problem by framing the allegation in their complaint as part of a nov el theory that the regul ations require Family Talk to somehow “facilitate[e] ” access to contraception cove rage, and that it is this facilitation that violates plaintiffs’ religious beliefs. See, e.g., Compl. ¶ 128; Pls.’ Mem. at 11. But under the challenged r egulations Family Ta lk need only to self-certify that i t objects to providing coverage for contraceptiv e services and that i t otherwise meets the criteria for an eligible organization, and to s hare that s elf-certification with its TPA. I n other words, Family Talk is required to in form its TPA that it objects to providing contraceptive coverage, which it has done or would have to do voluntarily anyway ev en absent these regulations in order to ensure t hat it is not responsible for contracting, arranging, paying, or referring for contraceptiv e coverage. The sole difference is that it must inform its TPA that its objection is for religious reasons—a statement which it has already made repeatedly in this litigation and elsewhere. 9 This does not amount to a substantial burden under RFRA. Michigan Catholic Conf., 2013 WL 6838707, at *7 (“[T]he contraceptive mandate r equires Catholic Charities to do what it has alway s done—sponsor a plan for its employees, contract with a TPA, and notif y the TPA that it objects to providing contraceptive coverage. Thus, Plaintiffs are not require[d] to ‘modify [their] behavior.’ . . . Although the TPA’s action may be deepl y offensive to the religious beliefs of Plaintiffs, RFRA do es not allow a plaintiff to re strain the behavior of a third party that conflicts with the plaintiff’s religious beliefs.”) (citation omitted); Notre Dame,
9 At several points in their brief, plaintiffs mention that for self-insured eligible organizations, the selfcertification form acts “as a designation of the third party administrator(s) as plan administrator and claims administrator for contraceptive benefits.” 78 Fed. Reg. at 39,879, AR at 11; see also Pls.’ Mem. at 13 & n.4, 29. It is not clear what legal significance plaintiffs attach to this statement, but what is clear is that self-insured entities are subject to the exact same self-certification requirement as third-party-insured entities; they will use the same self-certification form, on which they will state only that they have a religious objection to providing contraceptive coverage—nothing more. As discussed above, this selfcertification requirement is, at most, a de minimis administrative burden that requires no more of eligible employers—whether self-insured or third-party-insured—than what they would have to do anyway absent the challenged regulations.
14

Case 1:13-cv-03326-REB-CBS Document 30 Filed 02/14/14 USDC Colorado Page 22 of 38

2013 WL 6804773, at *12 (“Notre Dame isn’t being required to do anything new or

different—its action is the same, although, gr anted, the result is different due to the

actions of t he TPA and the go vernment. As I’ve said, Notr e Dame may find the act of

opting out less spiritually fu lfilling now, but that doesn’t make it a new action.”); Priests

for Life, 2013 WL 6672400, at *8 (“This is wher e Plaintiffs’ RFRA challenge must fail—

like the challenges in Kaemmerling and Bowen, the accommodations to the

contraceptive mandate simply do not require

Plaintiffs to modify their religious

behavior.”). Any bur den imposed by the pur ely administrative self-certification

requirement—which should take Family T alk a matter of minutes—is, at most, de minimis, and thus cannot be “substantial” under RFRA.10

The mere fact that a plaintiff may claim that the self-certification requirement

imposes a substantial burden on its religious exercise does not make it so. See Priests

for Life, 2013 WL 6672400, at *8 n.5 (“[T]he Court is not persuaded . . . that a plaintiff

can meet his burden of establishing that the accommodation creates a ‘substantial

burden’ upon his exercise of religion simply because he claims it to be so.”); Conestoga

Wood Specialties Corp. v. Sebelius, 917 F. Supp. 2d 394, 413 (E.D. Pa. 2013) (same),

aff’d, 724 F.3d 377 (3d Cir. 2013). Under RFRA, plaintiffs are entitled to their sincere

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

substantial burden on such beliefs. Although “[c]ourts are not arbiters of scriptural

interpretation,” Thomas, 450 U.S. at 716, “RFRA still requires the court to determine

whether the burden a law imposes on a plaintiff’s stated religious belief is ‘substantial.’”

Conestoga, 917 F. Supp. 2d at 413. Plaintiffs would limit the Court’s inquiry to two

prongs: first, whether plaintiffs’ religious objection to the challenged regulations are

10 RFRA’s legislative history makes clear that Congress did not intend such a relaxed standard. The initial version of RFRA prohibited the government from imposing any “burden” on free exercise, substantial or otherwise. Congress amended the bill to add the word “substantially,” “to make it clear that the compelling interest standards set forth in the act” apply “only to Government actions [that] place a substantial burden on the exercise of” religious liberty. 139 Cong. Rec. S14350-01, S14352 (daily ed. Oct. 26, 1993) (statement of Sen. Kennedy); see also id. (text of Amendment No. 1082).
15

Case 1:13-cv-03326-REB-CBS Document 30 Filed 02/14/14 USDC Colorado Page 23 of 38
sincere, and second, whether the regulations apply significant pressure to plaintiffs to comply. But plaintiffs ignore a critical third criterion of the “substantial burden” test, which gives meaning to the term “substantial”: whether the challenged regulations actually require plaintiffs to modify their behavior in a significant—or more than de minimis—way. See Living Water Church of God v. Charter Twp. Of Meridian, 258 Fed. App’x 729, 734-36 (6th Cir. 2007) (reviewing cases); see also, e.g., Garner, 713 F.3d at 241; Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338, 348-49 (2d Cir. 2007).
The Tenth Circuit’s decision in Hobby Lobby is not to the contrary. There, the court observed that, in determining whether an alleged burden is substantial, the court’s “only task is to determine whether the claimant's belief is sincere, and if so, whether the government has applied substantial pressure on the claimant to violate that belief.” 723 F.3d at 1137. But, because the for-profit corporation plaintiffs in that case were not eligible for the accommodations (and thus were required to contract, arrange, and pay for contraceptive coverage), the court did not address whether an accommodation that requires a plaintiff to do nothing beyond satisfying a purely administrative selfcertification requirement imposes a substantial burden on religious exercise. Indeed, the Hobby Lobby court relied heavily on Abdulhaseeb v. Calbone, 600 F.3d 1301 (10th Cir. 2010), which makes clear that, for a law to impose a substantial burden, it must require some actual change in religious behavior—either forced participation in conduct or forced abstention from conduct. See Hobby Lobby, 723 F.3d at 1138 (“[A] government act imposes a ‘substantial burden’ on religious exercise if it: (1) ‘requires participation in an activity prohibited by a sincerely held religious belief,’ (2) ‘prevents participation in conduct motivated by a sincerely held religious belief,’ or (3) ‘places substantial pressure on an adherent . . . to engage in conduct contrary to a sincerely held religious belief.” (emphasis added) (citing Abdulhaseeb, 600 F.3d at 1315)). Because the challenged regulations require that Family Talk take the de minimis step that it would
16

Case 1:13-cv-03326-REB-CBS Document 30 Filed 02/14/14 USDC Colorado Page 24 of 38
have to take even in the absence of the regulations (and require nothing of Dr. Dobson), the regulations do not impose a substantial burden on plaintiffs’ religious exercise.
The challenged regulations also do not impose a substantial burden on plaintiffs’ religious exercise because any burden is indirect and too attenuated to be substantial. See Catholic Diocese of Nashville v. Sebelius, No. 3:13-01303, 2013 WL 6834375, at *4-5 (M.D. Tenn. Dec. 26, 2013), injunction pending appeal granted, No. 13-6640 (6th Cir. Dec. 31, 2013) (addressing these regulations). The ultimate decision of whether to use contraception “rests not with [the employer], but with [the] employees” in consultation with their health care providers. Conestoga, 917 F. Supp. 2d at 414-15; see e.g., Autocam Corp. v. Sebelius, 2012 WL 6845677, at *6 (W.D. Mich. Dec. 24, 2012) (“The incremental difference between providing the benefit directly, rather than indirectly, is unlikely to qualify as a substantial burden on the Autocam Plaintiffs.”). Moreover, even if the challenged regulations were deemed to impose a substantial burden on plaintiffs’ religious exercise, the regulations satisfy strict scrutiny because they are narrowly tailored to serve compelling governmental interests in public health and gender equality. Defendants recognize that a majority of the en banc Tenth Circuit rejected these arguments in Hobby Lobby, and that this Court is bound by that decision. The Supreme Court is currently reviewing the Tenth Circuit’s decision. Defendants raise the arguments here merely to preserve them for appeal.
For these reasons, plaintiffs are not likely to succeed on their RFRA claim. B. The Regulations Do Not Violate the Establishment Clause Every court to have considered an Establ ishment Clause challenge to both these regulations and to the prior version of the regulations has rejected it. See Notre Dame, 2013 WL 6804773, at *18-20; Priests for Life , 2013 WL 6672400, at *14; Roman Catholic Archbishop of Washington v. Sebelius , __ F. Supp. 2d __, 2013 W L 6729515, at *39-43 ( D.D.C. Dec. 20, 2013); Diocese of Nashv ille, 2013 WL 68343 75, at *8-10; Michigan Catholic Conf. , 2013 WL 6838707, at *11; see also, e.g., O’Brien, 894 F.
17

Case 1:13-cv-03326-REB-CBS Document 30 Filed 02/14/14 USDC Colorado Page 25 of 38
Supp. 2d at 1162 (upholding prior version of regulations); Conestoga, 917 F. Supp. 2d at 416-17; Grote Indus. v. Sebelius, 914 F. Supp. 2d 943, 954 (S.D. Ind. 2012), rev’d on other grounds sub nom . Korte v. Sebelius , 735 F.3d 654 (7th Cir. 2013). This Cour t should do the same.
“The clearest command of the Establis hment Clause is that one religious denomination cannot be officially preferred over another.” Larson v. Valente , 456 U.S. 228, 244 (1982) (emphasis added). A law that discriminates among religions by “aid[ing] one religion” or “prefer[ring] one religion ov er another” is subject to strict scrutiny. Id. at 246; see also Olsen v . DEA, 878 F.2d 1458, 1461 (D.C. Cir. 198 9) (observing that “[a] statutory exemption authorized for one church alone, and for which no other church may qualify,” creates a “denominational preference”). Thus, for example, the Supreme Court has struck down on Establishment Clause grounds a state statute that was “drafted with the explicit intention” of requiring “particular religious denominations” to comply with registration and reporting require ments while exc luding other religious de nominations. Larson, 456 U.S. at 254; see also Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grum et, 512 U.S. 687, 703-07 ( 1994) (striking down statute that created special school district for religious enclav e of Satmar Hasidim becaus e it “single[d] out a particular religious sect for special treatment”). The Court, on the other hand, has upheld a statute that provided an exemption from military serv ice for persons who had a con scientious objection to all wars, but not those w ho objected to only a particular war. Gillette v. United States, 401 U.S. 437 (1971). Th e Court explained t hat the st atute did not discriminate among religions because “no particular sectarian affiliation” was required to qualify for conscientious objector status. Id. at 450-51. “[C]onscient ious objector status was available on an equal basis to both the Quaker and the Roman Catholic.” Larson, 456 U.S. at 247 n.23; see also Cutter v. Wilkinson, 544 U.S. 709, 724 (2005) (upholding RLUIPA against Est ablishment Clause c hallenge because it did not “confer[] . . .
18

Case 1:13-cv-03326-REB-CBS Document 30 Filed 02/14/14 USDC Colorado Page 26 of 38

privileged status on any particular religious sect” or “single[] out [any] bona fide faith for

disadvantageous treatment”).

Like the statutes at issue in Gillette and Cutter, the preventive services coverage

regulations do not grant any denominational pref erence or otherwise discriminat e

among religions. It is of no moment that

the religious employer exemption and

accommodations for eligible organizations apply to s ome employers but not others.

“[T]he Establishment Clause d oes not prohibit the governme nt from [differentiating

between organizations based on their structure and purpose] when granting religious

accommodations as long as the distinction[s] drawn by the regulations . . . [are] not

based on r eligious affiliation.” Grote, 914 F. Supp. 2d at 954; accord O’Brien, 894 F.

Supp. 2d at 1163; see also, e.g., Children’s Healthcare Is a Legal Duty, Inc. v. Min De

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

1124 (9th Cir. 1995) (concluding that religious exemption fr om self-employment Social

Security taxes did not violate the Establ ishment Clause even though “som e individuals

receive exemptions, and other individuals with identical beliefs do not”); Catholic

Charities of Diocese of Albany v. Serio, 859 N.E.2d 459, 468-69 (N.Y. 2006) (“This kind

of distinction—not between denominations, but between re ligious organizations based

on the nature of their activities—is not what Larson condemns.”).

Plaintiffs misread Larson in asserting that it establishes that the government may

not distinguish between types of organi zations when accommodating religion. Larson

makes clear that the Establis hment Clause is c oncerned with distinctions among

denominations. See, e.g., 456 U.S. at 244 (“The clearest command of the

Establishment Clause is that one religious denomination cannot be o fficially preferred

over another.”); id. at 245-46 (referri ng to the “con stitutional prohibition of

denominational preferences” and the “principle of d enominational neutrality”); id. at 245

(“Free exercise thus can be guaranteed only when legislators—and v oters—are

required to accord to their own religions the very same treatment given to small, new, or

19

Case 1:13-cv-03326-REB-CBS Document 30 Filed 02/14/14 USDC Colorado Page 27 of 38
unpopular denominations.”); id. at 246 (“[T]he government must be neutral when it comes to competition between sects.” (citation omitted)); id. (“[T]he fullest realization of true religious liberty requires that government . . . effect no favoritism among sects[.]” (citation omitted)). The constituti onal problem with the statute in Larson was that it “effect[ed] the selective legislative imposition of burdens and advant ages upon particular denominations.” Id. at 254 (emphasis in original). It was drafted to “includ[e ] particular religious denominations and exclud[e] others.” Id. Indeed, the Court discussed the legislative history of t he statute, which showed th at language was changed during the legislative process “for the sole pur pose of exempting the [Roman Catholic] Archdiocese from the provisions of the Act.” Id. at 254.11
The distinctions established by t he regulations at issue here are not distinctions among denominations. The regulations ’ definitions of religious em ployer and eligible organization “do[] not refer to any particular denomination.” Grote, 914 F. Supp. 2d at 954. The exemption and ac commodations are available o n an equal bas is to organizations affiliated with any and all religions. 12 Therefore, as every court to consider
11 Plaintiffs also stretch Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir. 2008), well beyond its facts in asserting that the case stands for the proposition that the Establishment Clause prohibits the government from distinguishing among different types of organizations that adhere to the same religion. The court’s decision in Weaver was limited to “laws that facially regulate religious issues,” id. at 1257, and, particularly, those that do so in a way that denies certain religious institutions public benefits that are afforded to all other institutions, whether secular or religious. The court in Weaver said nothing about the constitutionality of exemptions from generally applicable laws that are designed to accommodate religion, as opposed to discriminate against religion. A requirement that any religious exemption that the government creates must be extended to all organizations—no matter their structure or purpose—would severely hamper the government’s ability to accommodate religion. See Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 334 (1987) (“There is ample room under the Establishment Clause for ‘benevolent’ neutrality which will permit religious exercise to exist without sponsorship and without interference.”); Catholic Charities of Diocese of Albany, 859 N.E.2d at 464 (“To hold that any religious exemption that is not all-inclusive renders a statute non-neutral would be to discourage the enactment of any such exemptions—and thus to restrict, rather than promote, freedom of religion.”). 12 As explained below, see infra n.15, the other supposed exemptions mentioned by plaintiffs (Pls.’ Mem. at 19-22) are not exemptions from the preventive services coverage provision, and, in any event, none of those provisions draw distinctions among denominations. Furthermore, contrary to plaintiffs’ suggestion, see Pls.’ Mem. at 4, 20, eligible organizations that utilize self-insured church plans are eligible for the accommodations. The defendant agencies, however, lack authority to require the TPAs of self-insured church plans to provide payments for contraceptive services because such plans are exempt from the Employee Retirement Income Security Act (ERISA). See 29 U.S.C. § 1003(b)(2). ERISA’s exemption for church plans also does not distinguish among denominations.
20

Case 1:13-cv-03326-REB-CBS Document 30 Filed 02/14/14 USDC Colorado Page 28 of 38
the question has held, the regulations do not discriminate among religions in violation of the Establishment Clause. See infra; see also Liberty Univ., In c. v. Lew , 733 F.3d 72, 100-102 (4th Cir. 2013) (upholdi ng another religious exemption contained in the ACA against an Establishm ent Clause challenge because the exem ption “makes no explicit and deliberate distinctions between sects” (quotation omitted)).
The Supreme Court has “frequently articula ted” that “there is space between the religion clauses, in which there is ‘room for play in the joints;’ government may encourage the free exercise of religion by granting religious acc ommodations, even if not required by the Free Exer cise Clause, without running af oul of the Establis hment Clause.” O’Brien, 894 F. Supp. 2d at 1163 (citati ons omitted). Accommodations of religion are possible because the type of legi slative line-drawing to which plaintiffs object in this case is constitutionally permissible. Id.; Conestoga, 917 F. Supp. 2d at 417; see, e.g., Walz v. Tax Co mmission of New Yo rk, 397 U.S. 664, 672-73 (1970) (upholding property tax exempt ion “to religious organizations f or religious properties used solely for religious worship”); Amos, 483 U.S. at 334 (upholding Title VII’s exemption for religious organizat ions). Plaintiffs’ Establishment Clause claim, therefore, lacks merit.13
C. The Regulations Do Not Violate the Free Exercise Clause A law that is neutral and generally applic able does not run afoul of the Free Exercise Clause even if it prescribes conduct that an individual’s re ligion proscribes or
13 Plaintiffs also assert that the government’s rationale for distinguishing between houses of worship and their integrated auxiliaries and oth er non-profit religious organizations does not necessarily apply to Family Talk’s employees, who may be as likely to share the organization’s religious beliefs as the employees of a house of worship or i ntegrated auxiliary. See Pls.’ Mem. a t 19. Even assuming th is assertion is true, it does not render the distinctions drawn by the government—which are based on the general characteristics of houses of worship and integrated auxiliaries as compared to those of other nonprofit religious organizations, and not the characteristics of the specific organizational plaintiff here— unlawful. See, e.g., Turner Construction Co. v. United States , 94 Fed. Cl. 561, 571 (Fed. Cl. 201 0) (observing that a reviewing court is not to “sift throu gh an agency’s rationale with a fine-toothed comb;” instead, the relevant question is whether the agency articulated a rational connection between the facts found and the choice made). Moreover, defendants’ decision to incorporate long-standing concepts from the tax code that refer to churches, their integrated auxiliaries, conventi ons or associations of churches, and the exclusively religious activities of any reli gious order, in an effort to avoid entangling inquiries regarding the religious beliefs of Family Talk’s employees, is reasonable.
21

Case 1:13-cv-03326-REB-CBS Document 30 Filed 02/14/14 USDC Colorado Page 29 of 38
has the incidental effect of burdening a particular religious practice. Empt. Div., Dep’t of Human Res. of Or. v. S mith, 494 U.S. 872, 879 (1990); see also Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah , 508 U.S. 520, 531-32 (1993). “Neutrality and general applicability are interrelated.” Lukumi, 508 U.S. at 531. A law is neutral if it does not target religious ly motivated conduc t either on its face or as applied. Id. at 533. A neutral law has as it s purpose something ot her than the disapproval of a particular religion, or of religion in general. Id. at 545. A law is generally applicable so long as it does not selectively impose burdens only on conduct motivated by religious belief. Id.
Unlike such selective laws, the preventiv e services coverage regulations are neutral and generally applicable. Indeed, every court to have considered a free exercise challenge to these regulations has rejected it, concluding that the regulations are neutral and generally applicable. See Priests for Life , 2013 WL 6672400, at * 10-12, Notre Dame, 2013 WL 6804773, at *14-18; Archbishop of Washington, 2013 WL 6729515, at *27-31; Diocese of Nashville, 2013 WL 6834375, at *5-7; Michigan Catholic Conf., 2013 WL 6838707, at *8-9. 14 “The regulations were passed, no t with the object of interfering with religious practices, but instead to improve women’s access to health care and lessen the disparity between men’s and women’s healthcare costs.” O’Brien, 894 F. Supp. 2d at 1161; see Notre Dam e, 2013 WL 6804773, at *16 (“The laws and regulations in question, as well as the legisl ative history, further show that the ACA and related regulations were enacted for reasons neutral to religion.”). The regulations reflect expert medical reco mmendations about the medical necessity of contraceptive
14 Likewise, nearly every court to have considered a free exercise challenge to the prior version of the regulations rejected it. See MK Chambers Co. v. U.S. Dep’t of Health & Hum an Servs., Civil Action No. 13–11379, 2013 WL 1340719, at *5 (E.D. Mich. Apr. 3, 2013); Eden Foods, Inc. v. Sebelius, 2013 WL 1190001, at *4-5 (E.D. Mich. Mar. 22, 2013); Conestoga, 917 F. Supp. 2d at 409-10; Grote, 914 F. Supp. 2d at 952-53; Autocam, 2012 WL 6 845677, at *5; Korte v. HHS, 912 F. Supp. 2d 735, 744 -47 (S.D. Ill. 2012), rev’d on othe r grounds sub nom. Korte v. Sebeliu s, 735 F.3d 654 (7th Ci r. 2013); Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1289-90 (W.D. Okla. 2012), rev’d on other grou nds, 723 F.3d 1114 (10th Cir. 2013) (en banc), cert. granted, 134 S. Ct. 6 78 (2013); O’Brien, 894 F. Supp. 2d at 1160-62; see also Catholic Charities of Diocese of Albany, 859 N.E.2d at 4 68-69 (rejecting similar challenge to state law); Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67, 81-87 (Cal . 2004). But see Sharpe Holdings, Inc. v. HHS , No. 2:12-CV-92-DDN, 2012 WL 6738 489, at *5 (E.D. Mo. Dec. 31, 2012); Geneva Coll. v. Sebelius, No. 2:12–cv–00207, 2013 WL 838238, at *24-26 (W.D. Penn. Mar. 6, 2013).
22

Case 1:13-cv-03326-REB-CBS Document 30 Filed 02/14/14 USDC Colorado Page 30 of 38

services, without regard to any religious m otivations for or against such services. See,

e.g., Conestoga, 917 F. Supp. 2d at 410 (“It is clear fr om the history of the regulation s

and the report published by the Institute of Medicine that the purpose of the [regulations]

is not to target religion, but instead to promote public hea lth and gender equality.”);

Notre Dame, 2013 WL 6804773, at *17 (same, and fin ding it “abundantly clear” that the

regulations are neutral).

The regulations, moreover, do not pur sue their purpose “only against conduct

motivated by religious belief.” Lukumi, 508 U.S. at 545; see United States v. Am er, 110

F.3d 873, 879 (2d Cir. 1997) (concluding law t hat “punishe[d] c onduct within its reac h

without regard to whether the conduct was

religiously motivated” was generally

applicable). The regulations apply to all non-grandfathered health plans that do not

qualify for the religious employer exempt ion or the accommodations for eligible

organizations. Thus, “it is just not true . . . that the bur dens of the [regulations] fall on

religious organizations ‘ but almost no others.’” Am. Family Ass’n v. FCC , 365 F.3d

1156, 1171 (D.C. Cir. 2004) (quoting Lukumi, 508 U.S. at 536); see O’Brien, 894 F.

Supp. 2d at 1162; Autocam, 2012 WL 6845677, at *5; Grote, 914 F. Supp. 2d at 953.

Contrary to plaintiffs’ assertion, t he Tenth Circuit has m ade clear that the

existence of “express categorical excepti ons for objectively defined categories of

[entities],” like grandfathered plans and religious employers, does not ne gate a law’s

general applicability. Axson-Flynn v. Johns on, 356 F.3d 1277, 1298 (10th Cir. 2004) ;

see also Grace United Methodist Church v. City of Cheyenne , 451 F.3d 643, 651 (10th

Cir. 2006) (refusing to “interpret Smith as standing for the prop osition that a secu lar

exemption automatically creates a claim for a religious exemption”); Swanson v. Guthrie

Indep. Sch. Dist. , 135 F.3d 694, 698, 701 (10th Cir. 1998) (concluding school’s

attendance policy was not subject to stri ct scrutiny despite exemptions for “strict

categories of students,” such as fifth-year s eniors and special education students). The

exception for grandfathered plans is available on equal terms to all employers, whether

23

Case 1:13-cv-03326-REB-CBS Document 30 Filed 02/14/14 USDC Colorado Page 31 of 38
religious or secular. And the religious em ployer exemption and eligible organizatio n accommodations serve to accommodate religion, not to disfavor it. Such categorical exceptions do not trigger strict scrutiny. See, e.g., Priests for Life, 2013 WL 6672400, at *11; Notre Dame, 2013 WL 6804773; Autoc am, 2012 WL 6845677, at *5; O’Brien, 894 F. Supp. 2d at 1162.15
“[C]arving out an exemption for defined relig ious entities [also] does not make a law non-neutral as to others.” Grote, 914 F. Supp. 2d at 953 (quotation omitted). Indeed, the religious employer exemption “presents a strong argument in f avor of neutrality” by “demonstrating that the object of the law was not to infri nge upon or restrict practic es because of their religious motivation.” O’Brien, 894 F. Supp. 2d at 1161 ( quotations omitted); see Conestoga, 917 F. Supp. 2d at 410 (“The fact that exemptions were made for religious employers . . . . shows that the government made ef forts to accommodate religious beliefs, which counsels in favor of the regulations’ neutrality.”). The regulations are not rendered unlawful “merely because the [religious em ployer exemption] does not extend as far as Plaintiffs wish.” Grote, 914 F. Supp. 2d at 953.
Plaintiffs’ repeated reliance on Lukumi, 508 U.S. 520, is of no help, as this case is a far cry from Lukumi, where the legislature specifically targeted the religious exercise of members of a single church (Santeria) by enacting ordinances that used terms such as “sacrifice” and “ritual,” id. at 533-34, and prohibited few, if any, animal killings other than Santeria sacrifices, id. at 535-36. Here, there is no indication that the regulations
15 Grandfathering is not specifically limited to the preventive services coverage regulations. See 42 U.S.C. § 18011; 45 C.F.R. § 1 47.140. Moreover, the e ffect of gran dfathering is not really a permanent “exemption,” but rather, over the long term, a trans ition in the mark etplace with re spect to several provisions of the ACA, including the preventive services coverage provision. See 78 Fed. Reg. at 39,887 n.49, AR at 1 9; see also Kaiser Family Foundation and Health Research & Educational Trust, Employer Health Benefits 2012 An nual Survey a t 7-8, 190 (indicating that 58 pe rcent of firms had at least one grandfathered health plan in 2012, down from 72 percent in 2011, and that 48 percent of covered workers were in grandfathered health plans in 2012, down from 56 percent in 2011), AR at 663-64, 846.
The other supposed exemptions pl aintiffs mention (Pls.’ Mem . at 21-22 (citing 26 U. S.C. § 5000A(d)(2)(A) and (B))) are e ntirely unrelated to the preventive services coverage provision. These provisions exempt certain individuals from the mi nimum coverage provision, which requires certain individuals who fail to maintain a minimum level of health insurance to pay a tax penalty.
24

Case 1:13-cv-03326-REB-CBS Document 30 Filed 02/14/14 USDC Colorado Page 32 of 38
are anything other than an effort to increase women’s access to and utilization of recommended preventive services. See, e.g., O’Brien, 894 F. Supp. 2d at 1161; Conestoga, 917 F. Supp. 2d at 410. And it cannot be disputed that defendants have made extensive efforts—through the religious employer exemption and the eligible organization accommodations—to accommodate religion in ways that will not undermine the goal of ensuring that women have access to coverage for recommended preventive services without cost sharing.16 Accordingly, plaintiffs’ free exercise claim fails.17
D. The Regulations Do Not Violate the Free Speech Clause Plaintiffs’ free speec h claim fares no better. The right to freedom of speech “prohibits the government from telling people what they must say.” Rumsfeld v. Forum for Academic & Inst. Rights, Inc. (“FAIR”), 547 U.S. 47, 61 (2006) . But the preventiv e services coverage regulations do not “com pel speech”—by plaintiffs or any other person, employer, or entity—in violation of the First Amendm ent. Nor do they limit what plaintiffs may say. Plaintiffs remain fr ee under the regulations to expres s whatever views they may have on the use of contracept ive services (or any other health care services) as well as their views about t he regulations. Plaintiffs, moreover, may encourage Family Talk’s employees not to use contraceptive services. As plaintiffs point out, to avail itself of an accommodation, an organization must self-certify that it meets the definition of “eligible organization.” Plaintiffs appear to object to the self-certification to the extent that it results in Family Talk’s TPA making separate
16 Fraternal Order of Police v. City of Newark, 170 F.3d 359 (3d Cir. 1999), on which plaintiffs also rely, addressed a policy that created a secular exemption but refused all religious exemptions. The challenged regulations, in contrast, contain an exemption and accommodations that specifically seek to accommodate religion. Thus, there is simply no basis in this case to infer a discriminatory object behind the regulations. See Conestoga, 917 F. Supp. 2d at 409-10. 17 Contrary to plaintiffs’ assertion, see Pls.’ Mem. at 28, even if the regulations were not neutral or generally applicable, plaintiffs would still be required to demonstrate that the regulations substantially burden their religious exercise to prevail on their free exercise claim, see Levitan v. Ashcroft, 281 F.3d 1313, 1320 (D.C. Cir. 2002) (“[T]he First Amendment is implicated when a law or regulation imposes a substantial, as opposed to inconsequential, burden on the litigant's religious practice.”), which they cannot do for the reasons explained above.
25

Case 1:13-cv-03326-REB-CBS Document 30 Filed 02/14/14 USDC Colorado Page 33 of 38
payments for contraceptive services for its employees. But completion of the simple self-certification form is “plainly incidental to the . . . regulation of conduct,” FAIR, 547 U.S. at 62, not speech. Indeed, every court to review a free speech challenge like plaintiffs’ as to both the challenged regulations and the prior contraceptive-coverage regulations has rejected it, in part, because the regulations deal with conduct. See Priests for Life, 2013 WL 6672400, at *12-14 (“The regulations regarding contraceptive coverage, including the accommodation, place no limits on what Plaintiffs may say; they remain free to oppose contraceptive coverage for all people and in all forms. Rather, the accommodation regulates conduct . . . And like the law schools in FAIR, the only speech the accommodations require of Priests for Life is incidental to the regulation of conduct.”); Notre Dame, 2013 WL 6804773, at *20-21; Archbishop of Washington, 2013 WL 6729515, at *31-36; Diocese of Nashville, 2013 WL 6834375, at *7-8; Michigan Catholic Conf., 2013 WL 6838707, at *9-10; see also, e.g., MK Chambers, 2013 WL 1340719, at *6; Briscoe v. Sebelius, 927 F. Supp. 2d 1109 (D. Colo. 2013); Conestoga, 917 F. Supp. 2d at 418; Grote, 914 F. Supp. at 955; Autocam, 2012 WL 6845677, *8; O’Brien, 894 F. Supp. 2d at 1165-67; see also Catholic Charities of Sacramento, 85 P.3d at 89; Catholic Charities of Diocese of Albany, 859 N.E.2d at 465. The accommodations likewise regulate conduct by relieving an eligible organization of the obligation “to contract, arrange, pay, or refer for contraceptive coverage” to which it has religious objections. 78 Fed. Reg. at 39,874, AR at 6. Plaintiffs’ suggestion that the mere act of self-certifying eligibility for a religious accommodation violates speech rights is baseless. See FAIR, 547 U.S. at 61-63.
Similarly flawed is plaintiffs’ claim that they are barred from expressing particular views to Family Talk’s TPA. Pls.’ Mem. at 30. Defendants have been clear that “[n]othing in these final regulations prohibits an eligible organization from expressing its opposition to the use of contraception.” 78 Fed. Reg. at 39,880 n.41, AR at 12. What the regulations prohibit is an employer’s improper attempt to interfere with its employees’
26

Case 1:13-cv-03326-REB-CBS Document 30 Filed 02/14/14 USDC Colorado Page 34 of 38
ability to obtain contraceptive coverage from a third party by, for example, threatening the TPA with a termination of its relationship with the employer because of the TPA’s “arrangements to provide or arrange separate payments for contraceptive services for participants or beneficiaries.” See 26 C.F.R. § 54.9815-2713A(b)(1)(iii); 29 C.F.R. § 2590.715-2713A(b)(1)(iii).
Addressing an analogous argument in the context of the National Labor Relations Act, the Supreme Court concluded that an employer’s threatening statements to its employees regarding the effects of unionization fell outside the protection of the First Amendment because they interfered with employee rights. NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969). The Court explained that there was no First Amendment violation because the employer was “free to communicate . . . any of his general views . . . so long as the communications do not contain a ‘threat of reprisal or force or promise of benefit.’” Id.; see also Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978). The same is true here. Because the regulations do not prevent plaintiffs from expressing their views regarding the use of contraceptive services, but rather, protect employees’ right to obtain payments for contraceptive services through issuers/TPAs, there is no infringement of plaintiffs’ right to free speech. III. PLAINTIFFS CANNOT ESTABLISH THE REMAINING ELEMENTS FOR A
PRELIMINARY INJUNCTION Plaintiffs have not established that they are likely to suffer irreparable harm in the absence of preliminar y relief because, as explained above, they have not shown a likelihood of success on the merits of their RFRA or First A mendment claims. See Hobby Lobby, 723 F.3d at 1146 (expla ining that, in the RFRA and First Amendment context, the merits and irreparable injury pr ongs of the preliminar y injunction analysis merge together, and plaintiffs cannot show irreparable injury without als o showing a likelihood of success on the merits).
27

Case 1:13-cv-03326-REB-CBS Document 30 Filed 02/14/14 USDC Colorado Page 35 of 38
As to the balance of equities and the public interest, “there is inherent harm to an agency in preventing it from enforcing regulations that Congress found it in the public interest to direct that agen cy to develop and enforce.” Cornish v. Dudas, 540 F. Supp. 2d 61, 65 (D.D.C. 2008); see also Connection Distrib. Co. v. Reno , 154 F.3d 281, 296 (6th Cir. 1998) (indicating that granting an in junction against the enforcement of a likely constitutional statute woul d harm the gov ernment). Enjoining the preventive services coverage regulations as to Family Talk would undermine the government’s ability to achieve Congress’s goals of improving the health of women and newborn c hildren and equalizing the coverage of preventive services for women and men.
It would also be contrary to the public in terest to deny Family Talk’s employ ees (and their families) the benef its of the preventive serv ices coverage regula tions. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 312- 13 (1982) (“[C]ourts . . . should pa y particular regard for the public consequences in employing the extr aordinary remedy of injunction.”). Those employees and their covered family members should not be deprived of the benefits of payments provided by a third party that is not their employer for the full range of FDA-approv ed contraceptive services, as prescribed by a health care provider, on the basis of their employer’s religious objection. Many women do not use contraceptive services because they are not covered by their health plan or requir e costly copayments, coinsurance, or deductibles. IOM R EP. at 19-20, 109, AR at 317-18, 407; 77 Fed. Reg. at 8727, AR at 214; 78 Fed. Reg. at 39,887, AR at 19. As a result, in many cases, both women and developing fe tuses suffer negative health consequences. See IOM REP. at 20, 102-04, AR at 318, 400-02; 77 Fed. Reg. at 8728, AR at 215. And women are put at a competitive disadvant age due to their lost productivity and the disproportionate financial burden they bear in regard t o preventive health services. 155 Cong. Rec. S12106-02, S12114 ( daily ed. Dec. 2, 2009); see also IOM REP. at 20, A R at 318.
Enjoining defendants from enforcing, as to Family Talk, the preventive servic es 28

Case 1:13-cv-03326-REB-CBS Document 30 Filed 02/14/14 USDC Colorado Page 36 of 38
coverage regulations—the purpose of which is to eliminate these burdens, 75 Fed. Reg. at 41,733, AR at 233; see also 77 Fed. Reg. at 8728, AR at 215—would thus inflict a very real harm on the public and, in particular, a readily identifiable group of individuals. See Stormans, Inc. v. Selecky , 586 F.3d 1109, 1139 (9th Cir. 2009) (vacating preliminary injunction entered by district court and noting that “[t]here is a general public interest in ensuring that all citizens ha ve timely access t o lawfully prescribed medications”). Accordingly, even assuming plaintiffs we re likely to succeed on the merits (which they are not for the reas ons explained above), any potential harm to plaintiffs resulting from their offense at a third party prov iding payment for contraceptive services—at no cost t o, and with no administra tion by, plaintiffs—would be outweigh ed by the significant harm an injunction would cause Family Talk’s employees and their families.
CONCLUSION For the foregoing reasons, defendants respectfully ask that the Court deny plaintiffs’ motion for preliminary injunction.
29

Case 1:13-cv-03326-REB-CBS Document 30 Filed 02/14/14 USDC Colorado Page 37 of 38

Respectfully submitted this 14th day of February 2014,

Assistant United JENNIFE SHEILA Deputy

STUART F. DELERY Attorney General
JOHN F. WALSH States Attorney R RICKETTS
Director, Federal Programs Branch M. LIEBER Director, Federal Programs Branch

/s/ Michelle R. Bennett MICHELLE R. BENNETT Trial Attorney (CO Bar No. 37050) United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW Washington, D.C. 20530 Tel: (202) 305-8902 Fax: (202) 616-8470 Email: michelle.bennett@usdoj.gov

Counsel for Defendants

30

Case 1:13-cv-03326-REB-CBS Document 30 Filed 02/14/14 USDC Colorado Page 38 of 38
CERTIFICATE OF SERVICE I hereby certify that on February 14, 2014, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which sent notice of such filing to all parties.
/s/ Michelle R. Bennett MICHELLE R. BENNETT

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Robert E. Blackburn
Civil Action No. 13-cv-03326-REB-CBS
DR. JAMES C. DOBSON, and FAMILY TALK,
Plaintiffs,
v.
KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; THOMAS E. PEREZ, in his official capacity as Secretary of the United States Department of Labor; JACOB J. LEW, in his official capacity as Secretary of the United States Department of the Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; and UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants.
ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION
Blackburn, J.
This matter is before me on the Plaintiffs’ Motion for Preliminary Injunction
and Certificate of Compliance re: Consultation on Motion [#18]1 filed January 21,
2014. The defendants filed a response [#30], and the plaintiffs filed a reply [#36]. In
addition, the defendants filed a notice of supplemental authority [#34]. Having
considered carefully all relevant evidence educed, all reasons stated, all arguments
advanced, all authorities cited, and all apposite law, I find and conclude that the motion
1
“[#18]” is an example of the convention I use to identify the docket number assigned to a specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this convention throughout this order.

for preliminary injunction should be granted.2
I. JURISDICTION
I have jurisdiction over this case under 28 U.S.C. § 1331 (federal question).
II. BACKGROUND
The plaintiffs, Dr. James C. Dobson and Family Talk, challenge certain
requirements imposed on group health plans by the Patient Protection and Affordable
Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010) (Affordable Care Act or ACA).
Specifically, the plaintiffs challenge the requirement that the group health plan for
employees of Family Talk or, in the alternative, another entity, provide coverage for
drugs, devices, procedures, or related education and counseling that may destroy
human life after fertilization of the egg of a mother and either before or after the
implantation of a fertilized egg in the uterus of its mother. The plaintiffs contend that
any participation by them in the implementation of this required coverage imposes a
substantial burden on the exercise of their religious beliefs and violates their rights
under the First Amendment of the Constitution of the United States and under the Religious Freedom Restoration Act (RFRA)3.
Family Talk is a religious corporation “formed for the express purposes of spreading and propagating the Gospel of Jesus Christ and to provide Christ-oriented advice, counsel, guidance and education to parents and children and to speak to cultural issues that affect the family.” Family Talk believes that God has condemned the intentional destruction of innocent human life. Family Talk holds, as a matter of religious conviction, that it would be sinful and immoral for the organization intentionally to participate in, pay for, facilitate, enable, or otherwise support access to abortion or early destruction of human life. Family Talk holds that one of the prohibitions of the Ten Commandments (“thou shalt
2
The issues raised by and inherent to the motion are sufficiently briefed; thus, obviating the necessity for evidentiary hearing or oral argum ent.
3
42 U.S.C. §§ 2000bb through 2000bb-4.
2

not murder”) precludes them from facilitating, assisting in, or enabling the coverage of arrangements for payments for drugs that can and do destroy very young human beings in the womb. Verified Complaint [#1], filed December 10, 2013, ¶ 3.
Dr. James C. Dobson is a believing and practicing Evangelical Christian. Dr. Dobson is the Founder, President and Chairman of the Board of Directors of Family Talk. Dr. Dobson and Family Talk morally reject, as an abortion, the prevention of implantation of an early human embryo, and therefore they oppose the facilitation of “contraceptives” that can cause such an effect. Id., ¶ 2. Dr. Dobson executed the verification in the Verified Complaint [#1], at page 51. The ACA requires many health insurance plans to provide coverage for women's “preventative care and screenings [as] . . . provided for in comprehensive guidelines supported by the Health Resources and Services Administration[.]” See 42 U.S.C. § 300gg - 13(a)(4). The details of this requirement are expatiated in regulations adopted to implement the statutory requirement. 29 C.F.R. § 147.130 (a)(1)(iv) states the basic requirement, with reference to other resources for the details. This requirement now includes “all Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” Health Resources & Services Administration, “Women's Preventive Services Guidelines,” www.hrsa.gov/womensguidelines (visited April 10, 2014). I will refer to this aspect of the ACA and regulations as the Preventative Care Coverage Requirement. The plaintiffs object to a portion of the Preventative Care Coverage Requirement. The religious objections of the plaintiffs are limited to coverage for drugs, devices, or procedures that may destroy human life after fertilization of the egg of a mother and
3

either before or after the implantation of a fertilized egg in the uterus of its mother, as
well as any related counseling or education. The objections of the plaintiffs include
surgical abortion, the so-called morning after pill, also know as Plan B, the week afer pill, also known as ella, and intra uterine devices.4
After the enactment of the ACA, the government adopted administrative
regulations which provide a religious exemption from the Preventative Care Coverage
Requirement. The current regulations provide an exemption from the Preventative
Care Coverage Requirement for organizations like Family Talk. The exemption relevant
to this case includes the following four criteria, all of which must be satisfied for the
exemption to be applicable:
(1) The organization opposes providing coverage for some or all of any contraceptive services required to be covered under § 147.130(a)(1)(iv) on account of religious objections.
(2) The organization is organized and operates as a nonprofit entity.
(3) The organization holds itself out as a religious organization.
(4) The organization self-certifies, in a form and manner specified by the Secretary, that it satisfies the criteria in paragraphs (b)(1) through (3) of this section, and makes such self-certification available for examination upon request by the first day of the first plan year to which the accommodation in paragraph (c) of this section applies. The self-certification must be executed by a person authorized to make the certification on behalf of the organization, and must be maintained in a manner consistent with the record retention requirements under section 107 of the Employee Retirement Income Security Act of 1974.
29 C.F.R. § 2590.715-2713A. An organization that satisfies these quadripartite criteria
is considered an “eligible organization.” Under 29 C.F.R. § 2590.715-2713A (b), an
eligible organization is deemed to have complied with the requirements of the
4
I refer to this portion of the coverage requirement as the “Mandate.”
4

Preventative Care Coverage Requirement. An eligible organization is “not required to contract, arrange, pay, or refer for contraceptive coverage . . . .” See Coverage of Certain Preventive Services Under the Affordable Care Act, 78 FR 39870-01, 39874 (section II(B)(2)).
The process necessary to invoke the exemption is relatively simple. The organization seeking the exemption must complete and execute a short form certifying that it meets the first three criteria. The form, titled EBSA Form 700 - Certification,5 requires the organization to provide its name, the name of the individual authorized to make the certification for the organization, and the mailing address, email address, and phone number for that individual.6 In the case of an organization with a self-insured health plan, such as Family Talk, the organization must deliver the Exemption Form to the third-party administrator (TPA) of its plan along with a list of the employees of the organization.
Once the Exemption Form is properly completed, executed, and delivered, the eligible organization is not obligated to comply with the Mandate and is not obligated to administer or pay for the coverages required by the Mandate. Rather, the Exemption Form “shall be treated as a designation of the third party administrator as the plan administrator” for any “contraceptive services required to be covered” under the Preventative Care Coverage Requirement “to which the eligible organization objects on religious grounds . . . .” 29 C.F.R. § 2510.3-16 (b). The TPA then is obligated to provide or arrange for separate payments for contraceptive services for persons insured
5
Hereinafter the “Exem ption Form .”
6
The form can be viewed at dol.gov/ebsa/pdf/preventiveserviceseligibleorganizationcertificationform .pdf.
5

by the plan as required by the ACA. The TPA is reimbursed for costs it incurs when it provides such coverage.
After the TPA receives the Exemption Form, it must notify female employees who are covered by the health plan of the eligible organization that the TPA will cover and administer the preventive services required by the ACA, including the services that are the subject of the Mandate. 29 C.F.R. § 2590.715-2713A (d). Self-insured eligible organizations “must not, directly or indirectly, seek to interfere with a third party administrator's arrangements to provide or arrange separate payments for contraceptive services for participants or beneficiaries, and must not, directly or indirectly, seek to influence the third party administrator's decision to make any such arrangements.” 29 C.F.R. § 2590.715-2713A (b)(1)(iii).
In short, when an eligible organization properly completes, executes, and delivers the Exemption Form, the organization is not obligated to comply with the Mandate. The organization is not required to administer or fund health insurance coverages required by the Mandate. Instead, the third party administrator of the health plan of the organization must arrange to provide those coverages.
The next plan year for the Family Talk employee health insurance plan begins on May 1, 2014. According to the plaintiffs, they now face a choice: (1) they can violate their religious beliefs and provide the health insurance coverage required by the Mandate; (2) they can violate their religious beliefs and stop providing health insurance coverage for the employees of Family Talk; (3) they can continue to provide health insurance coverage without the coverages required by the Mandate – and face prodigious penalties; or (4) they can violate their sincerely held religious beliefs and complete, execute, and deliver the Exemption Form.
6

In the view of the plaintiffs, the fourth option, the Exemption Form, triggers a process which facilitates and enables the provision of the religiously objectionable insurance coverages required by the Mandate. Taking an action which initiates such a process, the plaintiffs contend, violates their religious beliefs. Notably, failure to provide the coverages required by the Mandate, failure to execute the Exemption Form, and cancellation of the health insurance plan of Family Talk to avoid the Mandate subjects Family talk to substantial, if not ruinous, financial penalties. See Roman Catholic Archdiocese of Atlanta v. Sebelius, 2014 WL 1256373, *4 (N.D. Ga. Mar. 26, 2014).
III. STANDING In the view of the defendants, Dr. Dobson does not have standing to challenge the Mandate. “[T]he irreducible constitutional minimum of standing” requires that a plaintiff (1) have suffered an injury in fact, (2) that is caused by the defendant’s conduct, and (3) that is likely to be redressed by a favorable ruling. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). As to the injury prong, a plaintiff must demonstrate that he has “suffered an injury in fact – an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Id. at 560 (quotations omitted). The requirement of a causal connection between the defendant’s conduct and the plaintiff’s injury means that the injury must be “fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.” Id. (citation omitted). The defendants contend that Dr. Dobson cannot show that he is injured by the Mandate, arguing that the Mandate does not apply to Dr. Dobson as an individual. The defendants assert that the Mandate applies only to “group health plans” and “health insurance issuers.” 42 U.S.C. § 300gg-13; 45 C.F.R. § 147.130(a)(1). Although the
7

Mandate does not, on its face, apply directly against Dr. Dobson, I conclude that he has
standing to assert the challenge to the Mandate which he asserts in this case.
A plurality of judges in Hobby Lobby Stores, Inc. v. Sebelius,7 rejected a
similar argument that the founders, executives, and directors of Hobby Lobby Stores,
Inc., the Greens, lacked standing to seek relief from the mandate imposed on the
corporation which they lead and operate:
(I)t is beyond question that the Greens have Article III standing to pursue their claims individually. This is so not simply because the company shares of which they are the beneficial owners would decline in value if the mandate's penalties for non-compliance were enforced, though that alone would satisfy Article III. See Franchise Tax Bd. of Cal. v. Alcan Aluminium Ltd., 493 U.S. 331, 336, 110 S.Ct. 661, 107 L.Ed.2d 696 (1990); Grubbs v. Bailes, 445 F.3d 1275, 1280 (10th Cir.2006). It is also because the mandate infringes the Greens' religious liberties by requiring them to lend what their religion teaches to be an impermissible degree of assistance to the commission of what their religion teaches to be a moral wrong. This sort of governmental pressure to compromise an article of religious faith is surely sufficient to convey Article III standing to the Greens, as it was for the plaintiffs in Thomas and Lee and in so many other religious liberty cases. Certainly our sister circuits have had no trouble finding Article III standing in similar cases where, say, individual pharmacists sought to contest regulations requiring their employers to dispense some of the same drugs or devices challenged here, see Stormans, Inc. v. Selecky, 586 F.3d 1109, 1121 (9th Cir.2009), or where individual soldiers sought to challenge military rules prohibiting their on-base day-care providers from including religious practices in their programs, see Hartmann v. Stone, 68 F.3d 973, 979 n. 4 (6th Cir.1995).
Id. at 1153 - 1154 (concurring opinion of Judge Gorsuch, joined by Judges Kelly and
Tymkovich; see also opinion of Judge Matheson, concurring in part and dissenting in
part, 723 F.3d at 1184 - 1188).
Given the nature and extent of the role of Dr. Dobson in the Family Talk
organization, the same analysis is apposite. The attempt to distinguish and separate
7
723 F.3d 1114 (10th Cir. 2013), cert. granted, ___ U.S. ___, 134 S. Ct. 678, 187 L. Ed. 2d 544 (2013).
8

Dr. Dobson from Family Talk is factitious. These plaintiffs enjoy a Siamese-like joinder, characterized by an indistinguishable coincidence of religious and moral purpose and philosophy. To affect one is to ineluctably affect the other. Thus, I conclude that Dr. Dobson has Article III standing to mount the challenge to the Mandate which he asserts in this case.
IV. PRELIMINARY INJUNCTION - STANDARD OF REVIEW FED. R. CIV. P. 65 authorizes federal courts to issue preliminary injunctions. Because a preliminary injunction is an extraordinary remedy, the right of a party to such relief must be clear and unequivocal. See Federal Lands Legal Consortium ex rel. Robart Estate v. United States, 195 F.3d 1190, 1194 (10th Cir. 1999). The plaintiffs are entitled to a preliminary injunction only if they prove (1) that there is a substantial likelihood that they will prevail on the merits; (2) that they will suffer irreparable harm unless the preliminary injunction is issued; (3) that the threatened injury to the plaintiffs outweighs the harm the preliminary injunction might cause defendants; and (4) that the preliminary injunction is in the public interest. Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1246 (10th Cir. 2001).
V. ANALYSIS A. LIKELIHOOD OF SUCCESS To secure a preliminary injunction, a plaintiff must establish a substantial likelihood that it is likely to prevail on the merits of the substantive claim or claims that are the basis for its motion. Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1246 (10th Cir. 2001). However, “[t]he determination of a motion for a preliminary injunction and a decision on the merits are different.” Valdez v. Applegate, 616 F.2d 570, 572 (10th Cir. 1980). “It is not necessary that plaintiffs show positively that they will
9

prevail on the merits before a preliminary injunction may be granted.” Atchison, Topeka and Santa Fe Railway. Co. v. Lennen, 640 F.2d 255, 261 (10th Cir. 1981). Instead, a plaintiff need only establish “a reasonable probability of success, . . . not an ‘overwhelming’ likelihood of success[.]” Id.
The plaintiffs assert claims under the Religious Freedom Restoration Act, the Establishment Clause of the First Amendment, the Free Exercise Clause of the First Amendment, and the Free Speech Clause of the First Amendment. I conclude that the plaintiffs have shown a reasonable probability of success, and, thus, a substantial likelihood, that they will prevail on their RFRA claim. As a result, I do not analyze this factor as to their other claims.8
1. RFRA - Substantial Burden Under the RFRA, the “Government shall not substantially burden a person's exercise of religion.” 42 U.S.C. § 2000bb-1(a). To prevail on a claim under this section of the RFRA, the plaintiffs must show: (1) they wish to engage in a religious exercise; (2) which is motivated by a sincerely held belief; and (3) which exercise is subject to a substantial burden imposed by the government. See Abdulhaseeb v. Calbone, 600 F.3d 1301, 1312 (10th Cir. 2010) (applying the Religious Land Use and Institutionalized Persons Act). The term “substantial burden,” as used in the Religious Land Use and Institutionalized Persons Act (RLUIPA), addressed in Abdulhaseeb, is to be interpreted by reference to the Religious Freedom Restoration Act of 1993. Grace United Methodist Church v. City Of Cheyenne, 451 F.3d 643, 661 (10th Cir. 2006). Under either act, the substantial burden standard is the same.
8
“A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them .” Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988).
10

To evaluate the RFRA claim of the plaintiffs, the court must identify the apposite religious belief, determine whether such belief is sincere, and decide whether the government, via the Mandate, has placed “substantial pressure on the religious believer.” Hobby Lobby, 723 F.3d at 1140. In this case, the relevant religious beliefs of the plaintiffs are summarized in paragraph three of the Verified Complaint [#1], quoted above. There is no dispute that these beliefs are religious beliefs, and there is no dispute that these beliefs are sincerely held religious beliefs of the plaintiffs. Thus, only the third factor is at issue: whether the government has imposed a substantial burden on the relevant exercise of religion.
To determine if a burden is substantial, a court must determine if the burden puts “substantial pressure on an adherent to modify his behavior and to violate his beliefs.” Abdulhaseeb, 600 F.3d at 1315 (internal quotation and citation omitted). The government imposes a substantial burden on religious exercise if it (1) requires participation in an activity prohibited by a sincerely held religious belief; (2) prevents participation in conduct motivated by a sincerely held religious belief; or (3) places substantial pressure on an adherent to engage in conduct contrary to a sincerely held religious belief. Hobby Lobby, 723 F.3d at 1138.
Under the ACA and the concomitant regulations, Family Talk has essentially four options. It may (1) refuse to provide employee health insurance coverage; or (2) provide the coverage required under the Mandate; or (3) provide a health insurance plan for its employees that does not include the coverages required by the Mandate; or (4) execute and deliver the Exemption Form and declare itself to be exempt from the Mandate. Plaintiffs assert that the first and second options would violate their religious beliefs. Additionally, option one would subject Family Talk to prohibitive financial
11

penalties. Option three would be a violation of the ACA and would subject Family Talk to ruinous penalties. Thus, Family Talk is essentially constrained to consider the fourth option – whether to seek exemption status.
However, the plaintiffs contend that completion, execution, and delivery of the Exemption Form would violate their religious beliefs. This is true, according to the plaintiffs, because execution and delivery of the Exemption Form facilitates or enables a process which results in the provision of the coverages required by the Mandate to the employees of Family Talk. Taking an action which initiates and facilitates such a process, the plaintiffs contend, violates their religious beliefs. Thus, the plaintiffs contend, the government has given them a Hobson’s choice: violate their sincerely held religious beliefs or face ruinous financial penalties. This choice, the plaintiffs assert, exerts and constitutes a substantial – and thus impermissible – burden on the exercise of their religion.
Courts have lined up on opposites sides of the debate. For example, in Zubik v. Sebelius, ___ F. Supp. 2d ___, 2013 WL 6118696 (W.D. Pa. Nov. 21, 2013), the court addressed an exemption for a religious organization under the ACA. As in this case, the plaintiffs in Zubik asserted that the affirmative acts of signing the Exemption Form stating the religious objections of the plaintiffs, compiling a list of the employees of the organization, and providing those items to its heath insurer or third-party administrator is an action which imposes a substantial burden on their exercise of religion. Referring to the exemption process as the “accommodation,” the court agreed:
(U)nder the “accommodation,” the reason the documentation is required is so that contraceptive products, services, and counseling can be provided in direct contravention of Plaintiffs' sincerely-held religious beliefs. The Government is asking Plaintiffs for documentation for what Plaintiffs sincerely believe is an immoral purpose, and thus, they cannot provide it.
12

Id. at *25.
(A)lthough the “accommodation” legally enables Plaintiffs to avoid directly paying for the portion of the health plan that provides contraceptive products, services, and counseling, the “accommodation” requires them to shift the responsibility of purchasing insurance and providing contraceptive products, services, and counseling, onto a secular source. The Court concludes that Plaintiffs have a sincerely-held belief that “shifting responsibility” does not absolve or exonerate them from the moral turpitude created by the “accommodation”; to the contrary, it still substantially burdens their sincerely-held religious beliefs.
Id.
However, the holding in Univ. of Notre Dame v. Sebelius, 743 F.3d 547 (7th
Cir. 2014), is to the contrary. In Notre Dame, the Seventh Circuit held that execution
and delivery of the Exemption Form does not trigger or enable the objectionable
coverage and does not constitute a substantial burden on religion under the RFRA.
The accommodation in this case consists in the organization's (that is, Notre Dame's) washing its hands of any involvement in contraceptive coverage, and the insurer and the third-party administrator taking up the slack under compulsion of federal law. Notre Dame is telling [its health insurance providers]: “we're excused from the new federal obligation relating to contraception,” and in turn, the government tells those insurance companies “but you're not.” This is a warning, not a trigger. It enables nothing. The sole “enabler” is the federal statute that Notre Dame has been allowed to opt out of.
Id. at 557. “The delivery of a copy of the form to [a health insurance provider] reminds
it of an obligation that the law, not the university, imposes on it - the obligation to pick
up the ball if Notre Dame decides, as is its right, to drop it.” Id. at 555. In essence, the
Seventh Circuit concluded that the religious objections of Notre Dame are to the
independent action of the government in mandating contraceptive coverage, not to any
action that the government has required Notre Dame to take. Id. at 559.
Analysis of the burden imposed on the religious beliefs of a plaintiff can bleed
subtly into an assessment of the validity or credibility of those religious beliefs or the
13

sincerity of those beliefs. Here, however, the existence and sincerity of the religious
beliefs of the plaintiffs is conceded. Thus, the fact and sincerity of the religious beliefs
of the plaintiffs is factually and legally inscrutable. Any further assessment of the
validity or credibility of those religious beliefs by the court is not appropriate. United
States v. Lee, 455 U.S. 252, 257 (1982) (It is not within the judicial function or judicial
competence to determine whether an appellee or the government has the proper
interpretation of the relevant religious faith; courts are not arbiters of scriptural
interpretation; citing Thomas v. Review Bd. of Indiana Employment Security Div.,
450 U.S. 707, 716 (1981)). The plaintiffs in Ave Maria Found. v. Sebelius9 also asserted that completing
the Exemption Form would violate their religious beliefs. Thus, they argued that the
pressure to complete the form, as imposed by the ACA and the regulations, constitutes
a substantial burden on their free exercise of religion. The Ave Maria court found that it
could not question or contradict the nature of the religious beliefs stated by the
plaintiffs.
How little Plaintiffs must do to qualify for the accommodation would be highly relevant if they objected only to paying for contraceptives directly. Taking a few minutes to complete some paperwork would hardly be a significant burden on their religious exercise. But because Plaintiffs also object to executing the self-certification, the government's argument amounts to disbelief that the self-certification has much religious significance. And adopting this argument would therefore require an examination of the sincerity of Plaintiffs' professed beliefs – which the government does not question – or second-guessing the importance or rationality of Plaintiffs' convictions – a task beyond the Court's ability or competence.
Id., ___ F. Supp. 2d at ___, 2014 WL 117425, *5 (E.D. Mich. Jan. 13, 2014).
9
___ F. Supp. 2d___, 2014 W L 117425 (E.D. Mich. Jan. 13, 2014).
14

Courts may still evaluate whether a law pressures a litigant to modify her behavior and whether that pressure is significant. But having conceded that the accommodation requires Plaintiffs to change their behavior in some way – here, by executing a certification – the government cannot then label that newly required action as trivial. It is not the government's business to decide what behavior has religious significance. Only when a law or regulation requires no action or forbearance by a religious objector can the government dismiss otherwise significant burdens on religious exercise offhand.
Id.
Given the particular facts described by Family Talk and Dr. Dobson, this court
finds the ratiocination of the Zubik and Ave Maria courts to be more cogent than that
described in Notre Dame. For the reasons summarized above, Family Talk and Dr.
Dobson state credibly and cogently that providing the coverage required by the
Mandate would violate their religious beliefs and execution and delivery of the
Exemption Form, the EBSA Form 700 - Certification, which effectively exempts Family
Talk from the Mandate, also would violate their sincerely held religious beliefs. The
enforcement scheme of the ACA imposes significant – if not ruinous – financial
penalties on an organization which fails to provide the required coverage or, in the
alternative, fails to execute and deliver the Exemption Form. Conceivably, an
organization might avoid the mandate by canceling its health insurance coverage.
Family Talk and Dr. Dobson assert that dropping the Family Talk health insurance plan would be contrary to their religious beliefs. Complaint, ¶ 133.10 I conclude that
execution of any these three options would violate per force the sincerely held religious
beliefs of the plaintiffs; yet the ACA essentially requires plaintiffs to choose among
10
Som e organizations which might avoid the mandate by canceling their health insurance coverage are subject to financial penalties. See Roman Catholic Archdiocese of Atlanta v. Sebelius, 2014 W L 1256373, *4 (N.D. Ga. Mar. 26, 2014). Fam ily Talk does not allege that it would be subject to such penalties.
15

them. Here, any myopic focus on the brevity of the Exemption Form and its ease of
completion misses the mark. It is the de facto forced facilitation of the objectionable coverage that is religiously repugnant to the plaintiffs.11 The resultant moral abhorrence is not effectively extenuated by a transfer of responsibility via an Exemption Form from the plaintiffs to the TPA. For the plaintiffs, such legal legerdemain does not expiate the morally unacceptable means or end. The transformation of moral culpability from plaintiffs as principals to aiders and abettors does not absolve the plaintiffs from their immutable moral responsibility. Such a compelled concession – even by an ostensibly innocuous legal prophylactic – does not ameliorate the moral ignominy and obliquity created by the pressured participation in the process.
Further, it is of no moment that ultimately the decision by an employee to elect the objectionable coverage is optional. To the plaintiffs, it is the offer per se that is morally offensive regardless of the extent of its acceptance.
Thus, I conclude ultimately that there is a substantial likelihood that the plaintiffs can show that the pressure to execute the Exemption Form imposed on them by the ACA and the concomitant regulations constitutes impermissible pressure to act in violation of their religious beliefs. This unavoidable circumstance effectively places substantial pressure on plaintiffs to engage in conduct contrary to sincerely held religious beliefs. Accordingly, I conclude that the ACA and the regulations constitute a substantial burden on the exercise of religion of the plaintiffs.
11
To rehearse, to “facilitate, enable, or otherwise support access” to the objectionable coverage is a violation of plaintiffs’ sincerely held religious beliefs. Verified Complaint [#1], ¶ 3, ¶¶ 127 - 130.
16

2. RFRA - Compelling Governmental Interest & Least Restrictive Means Under the RFRA, the government may impose a substantial burden on the exercise of religion under certain narrow circumstances. The 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.A. § 2000bb-1 (b). In the view of the government, the ACA and the regulations “provide women who work for non-profit, religious organizations with access to contraceptive coverage without cost sharing, thereby advancing the compelling government interests in safeguarding public health and ensuring that women have equal access to health care. The defendants assert that the regulations advance these interests in a narrowly tailored fashion that does not require non-profit, religious organizations with religious objections to provid[e] contraceptive coverage to contract, pay, arrange, or refer for that coverage.” Response [#30], p. 6. As the government notes candidly in its brief, the United States Court of Appeals for the Tenth Circuit has rejected these contentions. Hobby Lobby, 723 F.3d at 1143 1144. In Hobby Lobby the Tenth Circuit found that the interests articulated by the government are insufficient because they are broadly formulated interests justifying the general applicability of government mandates with “almost no justification for not granting specific exemptions to particular religious claimants.” Id. at 1143 (citing Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 431 (2006)). In addition, the Tenth Circuit concluded that
17

the interest here cannot be compelling because the contraceptive coverage requirement presently does not apply to tens of millions of people. As noted above, this exempted population includes those working for private employers with grandfathered plans, for employers with fewer than fifty employees, and, under a proposed rule, for colleges and universities run by religious institutions. As the Supreme Court has said, “a law cannot be regarded as protecting an interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited.” [Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547 (1993)]; see also O Centro, 546 U.S. at 433, 126 S.Ct. 1211 (citing Lukumi as instructive in determining whether exemptions undermine a compelling government interest for purposes of RFRA). The exemptions at issue here would yield precisely this result: they would leave unprotected all women who work for exempted business entities. Id. at 1143 - 1144.12 Because there is no showing of compelling governmental interest,
I need not address the considerations of least restrictive means.
3. Conclusion
The only issue in dispute concerning the RFRA claim of the plaintiffs is whether
the ACA and the regulations, as they relate to the plaintiffs and their possible exemption
from the Mandate, constitute a substantial burden on the religious beliefs of the
plaintiffs. I have concluded that there is a substantial likelihood that the plaintiffs can
show that the ACA and the regulations constitute a substantial burden on the exercise
of their religion. Contrastingly, the government has not shown that this substantial
burden is reasonably necessary to further a compelling governmental interest. Thus, I
conclude that the plaintiffs have shown a substantial likelihood of success on the merits
of their RFRA claim.
12
This is, a fortiori, where, as here, m any other mandated coverages have been effectively delayed, revised, or negated.
18

B. IRREPARABLE INJURY Establishing a likely violation of the rights of the plaintiffs under RFRA ipso facto establishes irreparable injury. Hobby Lobby, 723 F.3d at 1146.
C. BALANCE OF HARMS When considering the balance of harms, a court must balance “the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Amoco Prod. Co. v. Gambill, 480 U.S. 531, 542 (1987). In this case, a preliminary injunction would forestall the ability of the government to require that health insurance coverage of employees of Family Talk include coverage for drugs, devices, or procedures that may destroy human life after fertilization of the egg of a mother and either before or after the implantation of a fertilized egg in the uterus of its mother, as well as any related counseling or education. However, no other coverages required by the Preventative Care Coverage Requirement would be affected by a preliminary injunction. Thus, even with a preliminary injunction, a significant portion of the asserted interest of the government is realized while the sincerely held religious beliefs of the plaintiffs are preserved. In contrast, absent an injunction, the plaintiffs would remain subject to a requirement that ostensibly constitutes a violation of their rights under federal law. Accordingly, I find and conclude that the balance of equities weighs in favor of the plaintiffs. See Hobby Lobby, 723 F.3d at 1146 (plurality concluding balance of harms factor satisfied).
D. PUBLIC INTEREST Generally, the public interest is served by enjoining the enforcement of a law that likely violates the Constitution. Chamber of Commerce of U.S. v. Edmondson, 594 F.3d 742, 771 (10th Cir. 2010). Although a violation of the RFRA is not, on its face, a
19

violation of the constitution, “Congress has given RFRA similar importance by subjecting all subsequent congressional enactments to strict scrutiny unless those enactments explicitly exclude themselves from RFRA. See 42 U.S.C. § 2000bb-3(b).” See Hobby Lobby, 723 F.3d at 1146 - 1147 (plurality concluding public interest factor satisfied). Concerning the public interest, this case is directly analogous to Hobby Lobby. Thus, I find and conclude that the public interest weighs in favor of the issuance of a preliminary injunction.
E. SECURITY “The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” FED. R. CIV. P. 65(c). I conclude that security in the amount of five hundred (500) dollars is sufficient to satisfy this requirement.
VI. ORDERS THEREFORE, IT IS ORDERED as follows: 1. That the Plaintiffs’ Motion for Preliminary Injunction and Certificate of Compliance re: Consultation on Motion [#18] filed January 21, 2014, is GRANTED on the following terms; 2. That effective forthwith, each of the defendants is ENJOINED AND RESTRAINED from any application or enforcement against the plaintiffs of any provision of 42 U.S.C. § 300gg-13(a)(4) and any regulations implementing that statutory provision to the extent the statute and the implementing regulations require the plaintiffs to include in the group health plan for employees of Family Talk coverage for drugs, devices, or procedures that may destroy a human embryo or fertilized egg of a mother
20

either before or after the implantation of a fertilized egg in the uterus of its mother, as well as any related counseling or education;
3. That effective forthwith, each of the defendants is ENJOINED AND RESTRAINED from any application or enforcement against the plaintiffs of any provision of 42 U.S.C. § 300gg-13(a)(4) and any regulations implementing that statutory provision to the extent the statute and the implementing regulations require the plaintiffs to execute and deliver the EBSA Form 700 - Certification in order for the plaintiffs to obtain an exemption from the requirement that the plaintiffs include in the group health plan for employees of Family Talk coverage for drugs, devices, or procedures that may destroy a human embryo or fertilized egg of a mother either before or after the implantation of a fertilized egg in the uterus of its mother, as well as any related counseling or education;
4. That effective forthwith, each of the defendants is ENJOINED AND RESTRAINED from any application or enforcement against the plaintiffs of any provision of 42 U.S.C. § 300gg-13(a)(4) and any regulations implementing that statutory provision to the extent the statute and the implementing regulations impose a penalty on the plaintiffs, or either of them, based on the failure or refusal of the plaintiffs (a) to execute and deliver the EBSA Form 700 - Certification; (b) to include in the group health plan for Family Talk employees coverage for drugs, devices, or procedures that may destroy a human embryo or fertilized egg of a mother either before or after the implantation of a fertilized egg in the uterus of its mother, as well as any related counseling or education; or (c) to provide a group health plan covering the employees of Family Talk;
5. That under FED. R. CIV. P. 65(c), the plaintiffs, Family Talk and Dr. James C. 21

Dobson, SHALL POST with the clerk of the court a bond or other security in the amount of five hundred (500) dollars by Monday, April 21, 2014, at 5:00 p.m. (mountain daylight time); and
6. That this preliminary injunction SHALL REMAIN IN EFFECT until modified or rescinded by order of the court.
Dated April 17, 2014, at Denver, Colorado. BY THE COURT:
22

 
 Case 1:13-cv-03326-REB-SKC Document 61 Filed 03/26/19 USDC Colorado Page 1 of 11
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Robert E. Blackburn
Civil Action No. 13-cv-03326-REB-CBS
DR. JAMES C. DOBSON, and FAMILY TALK,
Plaintiffs,
v.
ALEX AZAR, in his official capacity as Secretary of the United States Department of Health and Human Services; ALEXANDER ACOSTA, in his official capacity as Secretary of the United States Department of Labor; STEVEN MNUCHIN, in his official capacity as Secretary of the United States Department of the Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; and UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants1.
ORDER GRANTING MOTION FOR PERMANENT INJUNCTION
Blackburn, J.
This matter is before me on the Plaintiffs’ Motion To Reopen Proceedings and
for Permanent Injunction and Declaratory Relief [#55]2 filed June 19, 2018. The
defendants filed a response [#58], and the plaintiffs filed a reply [#59]. Previously, I
granted the motion to reopen this case. Addressing the motion for an injunction and
declaratory relief, I grant the motion in part and deny it in part.
1 Under Fed. R. Civ. P. 25(d), Alex Azar, Alexander Acosta, and Steven Mnuchin automatically are substituted as defendants to replace their predecessors, who have ceased to hold the relevant public offices.
2 “[#55]” is an example of the convention I use to identify the docket number assigned to a specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this convention throughout this order.

Case 1:13-cv-03326-REB-SKC Document 61 Filed 03/26/19 USDC Colorado Page 2 of 11
I. JURISDICTION I have jurisdiction over this case under 28 U.S.C. § 1331 (federal question).
II. BACKGROUND The plaintiffs, Dr. James C. Dobson and Family Talk, challenge certain requirements imposed on group health plans by the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010) (Affordable Care Act or ACA). Specifically, the plaintiffs challenge the requirement that the group health plan for employees of Family Talk or, in the alternative, another health plan provider, provide coverage for drugs, devices, procedures, or related education and counseling that may destroy human life after fertilization of the egg of a mother either before or after the implantation of a fertilized egg in the uterus of its mother. I refer to this coverage requirement as “the Mandate.” The plaintiffs contend that any participation by them in the implementation of this required coverage imposes a substantial burden on the exercise of their religious beliefs and violates their rights under the First Amendment of the Constitution of the United States and under the Religious Freedom Restoration Act (RFRA)3. Under the regulations extant when this case was filed, an organization such as Family Talk could obtain an exemption from the Mandate. The criteria necessary to obtain an exception are detailed in my Order Granting Motion for Preliminary Injunction [#37]. Under those regulations, once an exemption form was completed, executed, and delivered, the organization eligible for an exemption was not obligated to comply with the Mandate and was not obligated to administer or pay for the coverages
3 42 U.S.C. §§ 2000bb through 2000bb-4.
2

Case 1:13-cv-03326-REB-SKC Document 61 Filed 03/26/19 USDC Colorado Page 3 of 11
required by the Mandate. This exemption procedure often is referred to as “the accommodation.”
According to the plaintiffs, the regulations extant when this case was filed gave them an impossible choice: (1) it could violate its religious beliefs and provide the health insurance coverage required by the Mandate; (2) it could stop providing health insurance coverage for its employees, and face prodigious penalties; (3) it could continue to provide health insurance coverage without the coverages required by the Mandate, and face prodigious penalties; or (4) it could violate its religious beliefs and complete, execute, and deliver the exemption form.
In the view of the plaintiffs, the fourth option, the exemption form, triggers a process which facilitates and enables the provision of the religiously objectionable insurance coverages required by the Mandate. Taking an action which initiates such a process, the plaintiffs contend, violates their religious beliefs. Notably, failure to provide the coverages required by the Mandate, failure to execute the Exemption Form, and cancellation of the health insurance plan of Family Talk to avoid the Mandate subjects Family Talk to substantial, if not ruinous, financial penalties. See Roman Catholic Archdiocese of Atlanta v. Sebelius, 2014 WL 1256373, *4 (N.D. Ga. Mar. 26, 2014).
On April 17, 2014, I entered an Order Granting Motion for Preliminary Injunction [#37]. In that order, I enjoined and restrained the defendants
from any application or enforcement against the plaintiffs of any provision of 42 U.S.C. § 300gg-13(a)(4) and any regulations implementing that statutory provision to the extent the statute and the implementing regulations require the plaintiffs to include in the group health plan for employees of Family Talk coverage for drugs, devices, or procedures that may destroy a human embryo or fertilized egg of a mother either before or after the implantation of a fertilized egg in the uterus of its mother, as well as any related counseling or education.
3

Case 1:13-cv-03326-REB-SKC Document 61 Filed 03/26/19 USDC Colorado Page 4 of 11
Order [#37], p. 21. In addition, I enjoined the defendants from imposing a penalty on the plaintiffs, or either of them, based on the failure of the plaintiffs to comply with the statute or related regulations in relation to the Family Talk health plan and the coverage provisions specified above. Id.
The defendants filed an appeal of my order imposing a preliminary injunction. The United States Court of Appeals for the Tenth Circuit placed the appeal in abeyance pending resolution of related cases. The defendants later dismissed their appeal.
In their brief [#56] in support of their present motion, the plaintiffts summarize the litigation history of the issue raised in this case and in many other cases across the country. The Supreme Court of the United States granted certiorari in several cases in which plaintiffs raised the same issues raised by the plaintiffs in the present case. Zubik v. Burwell, ___ U.S. ___, 136 S.Ct. 1557 (2016). Zubik involved ten rulings by various district courts. The courts of appeal for the Third, Fifth, Tenth, and District of Columbia Circuits each had addressed the rulings of the district courts in their circuits. In each of those cases, the Supreme Court granted certiorari.
In Zubik, the Supreme Court summarized the key issue as follows: Petitioners are primarily nonprofit organizations that provide health
insurance to their employees. Federal regulations require petitioners to cover certain contraceptives as part of their health plans, unless petitioners submit a form either to their insurer or to the Federal Government, stating that they object on religious grounds to providing contraceptive coverage. Petitioners allege that submitting this notice substantially burdens the exercise of their religion, in violation of the Religious Freedom Restoration Act of 1993, 107 Stat. 1488, 42 U.S.C. § 2000bb et seq. Id. at ___, 136 S.Ct. at 1559. The Court heard oral argument and then requested supplemental briefing from the parties. The Court asked the parties to address “whether contraceptive coverage
4

Case 1:13-cv-03326-REB-SKC Document 61 Filed 03/26/19 USDC Colorado Page 5 of 11
could be provided to petitioners' employees, through petitioners' insurance companies,
without any such notice from petitioners.” Id. at ___, 136 S.Ct. at 1559 - 1560. The
petitioners and the government confirmed that such an option is feasible. Id. at ___,
136 S.Ct. at 1560.
Petitioners have clarified that their religious exercise is not infringed where they need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception, even if their employees receive cost-free contraceptive coverage from the same insurance company. The Government has confirmed that the challenged procedures for employers with insured plans could be modified to operate in the manner posited in the Court's order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.
Id. (internal quotations and citations omitted).
In light of the positions taken by the parties in the supplemental briefing, the
Court vacated the judgments of the circuit courts of appeal and remanded to cases to
the courts of appeal for further proceedings.
Given the gravity of the dispute and the substantial clarification and refinement in the positions of the parties, the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners' religious exercise while at the same time ensuring that women covered by petitioners' health plans receive full and equal health coverage, including contraceptive coverage.
Id. (internal quotation and citation omitted).
On October 6, 2017, the departments of Health and Human Services, Labor, and
Treasury (the Departments) announced new Interim Final Rules (IFR) concerning
accommodation of religious exemptions under the ACA. Religious Exemptions and
Accommodations for Coverage of Certain Preventive Services Under the
Affordable Care Act, 82 Fed. Reg. 47,792 - 47,835. In the IFR, the Departments
stated:
5

Case 1:13-cv-03326-REB-SKC Document 61 Filed 03/26/19 USDC Colorado Page 6 of 11
We have concluded that requiring certain objecting entities or individuals to choose between the Mandate, the accommodation, or penalties for noncompliance imposes a substantial burden on religious exercise under RFRA. Id. at 47,800. The IFR provides expanded exemptions to organizations such as Family Talk. Id. The expanded exemptions are designed to avoid violation of the requirements of RFRA, resolve pending litigation, and prevent future litigation. Id. at 47,499. The expanded exemptions are now codified at 45 C.F.R. § 147.132, which became effective on January 14, 2019. When the IFR was issued, the defendants moved to dismiss their appeal in this case. The Tenth Circuit dismissed the appeal.
III. ANALYSIS A party may obtain a permanent injunction if it proves: (a) actual success on the merits; (b) irreparable harm unless the injunction is issued; (c) the threatened injury outweighs the harm that the injunction may cause the opposing party; and (d) the injunction, if issued, will not adversely affect the public interest. Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1180 (10th Cir.2003); See also Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d 818, 822 (10th Cir. 2007). Even though the applicable regulations changed to address objections like those of the plaintiffs, the plaintiffs contend they are entitled to a permanent injunction preventing the defendants from enforcing the Mandate and the accommodation requirements of the statutes and regulations in effect when this case was filed. This is true, the plaintiffs contend, because multiple lawsuits have been filed seeking to block the expanded religious employer exemption in the IFR. Two courts have preliminarily enjoined the IFR. Pennsylvania v. Trump, 281 F.Supp.3d 553, 585 (E.D.Pa. 2017); California v. Health and Human Services, 281 F.Supp.3d 806, 832 (N.D.Cal. 2017),
6

Case 1:13-cv-03326-REB-SKC Document 61 Filed 03/26/19 USDC Colorado Page 7 of 11
affirmed in part, vacated in part, & remanded, California v. Azar, 911 F.3d 558 (9th Cir. 2018). The California court ordered the parties to proceed under the prior regime pending resolution of the merits. California v. Health and Human Services, 281 F.Supp.3d at 832.
Given these circumstances, the plaintiffs seek injunctive relief in two forms. First, the plaintiffs seek a permanent injunction prohibiting enforcement of the Mandate by the defendants against the plaintiffs. Second, they seek a permanent injunction prohibiting the defendants from assessing penalties against the plaintiffs for their refusal to comply with the Mandate. In addition, the plaintiffs seek declaratory relief to protect them from “other consequences for having refused to comply with the mandate . . . such as private actions brought by beneficiaries.” Brief [#56], p. 19.
The defendants concede “that requiring employers with sincerely held religious objections to comply with the Mandate or the accommodation process would violate RFRA.” Response [#58], p. 2. In essence, the defendants concede the validity of the RFRA claim of the plaintiffs. The defendants take no position on whether permanent injunctive relief is appropriate in this case. Id.
Given the uncertainty presented by the legal challenges to the IFR, I find and conclude that a permanent injunction is proper. A permanent injunction is proper to prohibit enforcement of the Mandate by the defendants against the plaintiffs and to prohibit the defendants from assessing penalties against the plaintiffs for their refusal to comply with the Mandate. On these issues, the plaintiffs have been successful on the merits of their claim under RFRA. The plaintiffs face potential irreparable harm in the form of violation of their rights under RFRA unless an injunction is issued.
The threatened injury to the plaintiffs outweighs the harm the injunction may 7

Case 1:13-cv-03326-REB-SKC Document 61 Filed 03/26/19 USDC Colorado Page 8 of 11
cause the opposing parties. Relevantly, the defendants have not identified or cited any such harm.
Finally, an injunction requiring compliance with the requirements of RFRA will not adversely affect the public interest.
The plaintiffs seek also a declaration that the plaintiffs act legally when they exclude abortifacients from the group health plan of Family Talk. Reply [#59], p. 5. The plaintiffs say they need such a declaration because they face a risk that persons other than the defendants may bring a private suit against the plaintiffs to enforce the Mandate. Reply [#59], pp. 3 - 5. Such lawsuits have been brought against other entities similar to Family Talk. The defendants object to this request for relief, contending it is unnecessary and overly broad.
Under the Declaratory Judgment Act, 28 U.S.C. §§ 2201 - 2202, the court may enter a judgment declaring “the rights and other legal relations of any interested party seeking such declaration . . . .” 28 U.S.C. § 2201. The judgment and injunction that will result from this order are based on the RFRA claim of the plaintiffs. In this context, it is proper for the court to declare that the rights of the plaintiffs under RFRA are violated by enforcement of the Mandate against the plaintiffs in a manner that (1) requires the plaintiffs to include coverage of abortifacients in the group health plan for Family Talk employees; (2) requires the plaintiffs to execute and deliver the EBSA Form 700 Certification in order for the plaintiffs to obtain an exemption; or (3) imposes a penalty on the plaintiffs due to their failure to include coverage of abortifacients in its group health plan or to execute and deliver the EBSA Form 700 - Certification.
The plaintiffs seek entry of a permanent injunction, an award of costs, and an award of attorney fees. These requests imply that the plaintiffs seek entry of judgment
8

Case 1:13-cv-03326-REB-SKC Document 61 Filed 03/26/19 USDC Colorado Page 9 of 11
in their favor on their RFRA claim. But the plaintiffs do not state that they wish to dismiss the six additional claims alleged in their complaint [#1]. Given the pendency of these additional claims, I should not and will not enter judgment at this time. Instead, I will direct the plaintiffs to file a status report stating how they wish to proceed on their second through seventh claims for relief.
VI. ORDERS THEREFORE, IT IS ORDERED as follows: 1. That the Plaintiffs’ Motion To Reopen Proceedings and for Permanent Injunction and Declaratory Relief [#55] is granted in part on the terms stated in this order; 2. That effective forthwith, each of the defendants is permanently enjoined and restrained from any application or enforcement against the plaintiffs of any provision of 42 U.S.C. § 300gg-13(a)(4) and any related regulations implementing that provision to the extent the statute and the implementing regulations require the plaintiffs to include in the group health plan for employees of Family Talk coverage for drugs, devices, or procedures that may destroy a human embryo or fertilized egg of a mother either before or after the implantation of a fertilized egg in the uterus of its mother, as well as any related counseling or education; 3. That effective forthwith, each of the defendants is permanently enjoined and restrained from any application or enforcement against the plaintiffs of any provision of 42 U.S.C. § 300gg-13(a)(4) and any related regulations implementing that provision to the extent the statute and the implementing regulations require the plaintiffs to execute and deliver the EBSA Form 700 - Certification in order for the plaintiffs to obtain an exemption from the requirement that the plaintiffs include in the group health plan for
9

Case 1:13-cv-03326-REB-SKC Document 61 Filed 03/26/19 USDC Colorado Page 10 of 11
employees of Family Talk coverage for drugs, devices, or procedures that may destroy a human embryo or fertilized egg of a mother either before or after the implantation of a fertilized egg in the uterus of its mother, as well as any related counseling or education;
4. That effective forthwith, each of the defendants is permanently enjoined and restrained from any application or enforcement against the plaintiffs of any provision of 42 U.S.C. § 300gg-13(a)(4) and any related regulations implementing that provision to the extent the statute and the implementing regulations impose a penalty on the plaintiffs, or either of them, based on the failure of the plaintiffs (a) to execute and deliver the EBSA Form 700 - Certification, as provided by law; or (b) to include in the group health plan for Family Talk employees coverage for drugs, devices, or procedures that may destroy a human embryo or fertilized egg of a mother either before or after the implantation of a fertilized egg in the uterus of its mother, as well as any related counseling or education;
5. That under the Declaratory Judgment Act, 28 U.S.C. §§ 2201 - 2202, the court declares that the rights of the plaintiffs under RFRA are violated by enforcement of 42 U.S.C. § 300gg-13(a)(4) and any related regulations implementing that statutory provision in a manner that (1) requires the plaintiffs to include coverage of abortifacients in the group health plan for Family Talk employees; (2) requires the plaintiffs to execute and deliver the EBSA Form 700 - Certification in order for the plaintiffs to obtain an exemption; or (3) imposes a penalty on the plaintiffs due to their failure to include coverage of abortifacients in the group health plan for Family Talk employees or to execute and deliver the EBSA Form 700 - Certification;
6. That when final judgment enters in this case, the judgment shall include the terms of the permanent injunction specified in paragraphs three (3), four (4), and five
10

Case 1:13-cv-03326-REB-SKC Document 61 Filed 03/26/19 USDC Colorado Page 11 of 11 (5), above, and the declaration in paragraph six (6), above; 7. That any requests for additional injunctive or declaratory relief are denied; 8. That on or before April 26, 2019, the plaintiffs shall file a status report stating if they wish to proceed with their second through seventh claims for relief, as alleged in the complaint [31]; and 9. That absent the entry of final judgment, the requests of the plaintiffs for awards of costs and attorney fees are denied without prejudice. Dated March 26, 2019, at Denver, Colorado. BY THE COURT:
11

 
 Case 1:13-cv-03326-REB-SKC Document 65 Filed 03/13/20 USDC Colorado Page 1 of 4
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-03326-REB-SKC DR. JAMES C. DOBSON, and FAMILY TALK,
Plaintiffs, v. ALEX AZAR, Secretary of the United States Department of Health and Human Services, et al.,
Defendants.
FINAL JUDGMENT
In accordance with the orders filed during the pendency of this case, and pursuant to Fed. R. Civ. P. 58(a), the following Final Judgment is hereby entered.
Pursuant to the Order for Entry of Final Judgment (Doc. # 64) entered by United States District Judge Robert E. Blackburn, on March 13, 2020, it is
ORDERED that Plaintiffs’ Status Report and Combined Motion for Dismissal of Non-RFRA Claims, Entry of Final Judgment, and Extension of Time to Submit Motion for Attorney’s Fees and Costs (#62) is GRANTED. It is
FURTHER ORDERED that judgment is entered in favor of plaintiffs, Dr. James Dobson and Family Talk, and against the defendants, Alex Azar, in his official capacity as Secretary of the United States Department of Health and Human Services, Alexander Acosta, in his official capacity as Secretary of the United States Department of Labor, Steven Mnuchin, in his official capacity as Secretary of the United States Department of the Treasury, United States Department of Health and Human Services,

Case 1:13-cv-03326-REB-SKC Document 65 Filed 03/13/20 USDC Colorado Page 2 of 4
United States Department of Labor, and United States Department of the Treasury, on the first claim for relief stated in the complaint [#1], a claim under the Religious Freedom Restoration Act. It is
FURTHER ORDERED that the Second, Third, Fourth, Fifth, Sixth, and Seventh claims for relief are DISMISSED WITH PREJUDICE. It is
FURTHER ORDERED that the judgment shall include the following terms stated in the permanent injunction [#61] previously entered in this case:
A. Effective forthwith, each of the defendants is permanently enjoined and restrained from any application or enforcement against the plaintiffs of any provision of 42 U.S.C. § 300gg-13(a)(4) and any related regulations implementing that provision to the extent the statute and the implementing regulations require the plaintiffs to include in the group health plan for employees of Family Talk coverage for drugs, devices, or procedures that may destroy a human embryo or fertilized egg of a mother either before or after the implantation of a fertilized egg in the uterus of its mother, as well as any related counseling or education;
B. Effective forthwith, each of the defendants is permanently enjoined and restrained from any application or enforcement against the plaintiffs of any provision of 42 U.S.C. § 300gg-13(a)(4) and any related regulations implementing that provision to the extent the statute and the implementing regulations require the plaintiffs to execute and deliver the EBSA Form 700 Certification in order for the plaintiffs to obtain an
2

Case 1:13-cv-03326-REB-SKC Document 65 Filed 03/13/20 USDC Colorado Page 3 of 4
exemption from the requirement that the plaintiffs include in the group health plan for employees of Family Talk coverage for drugs, devices, or procedures that may destroy a human embryo or fertilized egg of a mother either before or after the implantation of a fertilized egg in the uterus of its mother, as well as any related counseling or education; and
C. Effective forthwith, each of the defendants is permanently enjoined and restrained from any application or enforcement against the plaintiffs of any provision of 42 U.S.C. § 300gg-13(a)(4) and any related regulations implementing that provision to the extent the statute and the implementing regulations impose a penalty on the plaintiffs, or either of them, based on the failure of the plaintiffs (a) to execute and deliver the EBSA Form 700 Certification, as provided by law; or (b) to include in the group health plan for Family Talk employees coverage for drugs, devices, or procedures that may destroy a human embryo or fertilized egg of a mother either before or after the implantation of a fertilized egg in the uterus of its mother, as well as any related counseling or education. It is FURTHER OREDRED that under the Declaratory Judgment Act, 28 U.S.C. §§ 2201 - 2202, the court declares that the rights of the plaintiffs under RFRA are violated by enforcement of 42 U.S.C. § 300gg-13(a)(4) and any related regulations implementing that statutory provision in a manner that (1) requires the plaintiffs to include coverage of abortifacients in the group health plan for Family Talk employees; (2) requires the plaintiffs to execute and deliver the EBSA Form 700 - Certification in order for the plaintiffs to obtain an exemption; or (3) imposes a penalty on the plaintiffs due to their
3

Case 1:13-cv-03326-REB-SKC Document 65 Filed 03/13/20 USDC Colorado Page 4 of 4 failure to include coverage of abortifacients in the group health plan for Family Talk employees or to execute and deliver the EBSA Form 700 – Certification. It is FURTHER ORDERED that the request of the plaintiffs for additional time to file a motion for an award of attorney fees, as stated in the motion [#62], is GRANTED. It is FURTHER ORDERED that plaintiffs may file a motion, including a stipulated motion, for an award of attorney fees within 45 days of the date of this order. DATED: March 13, 2020. FOR THE COURT: Jeffrey P. Colwell, Clerk By: s/S. West S. West, Deputy Clerk
4

 
 Case: 1:13-cv-3326 As of: 05/27/2020 03:04 PM MDT 1 of 9
NDISPO,REOPEN,TERMED
U.S. District Court − District of Colorado District of Colorado (Denver)
CIVIL DOCKET FOR CASE #: 1:13−cv−03326−REB−SKC

Dobson et al v. Sebelius et al Assigned to: Judge Robert E. Blackburn Referred to: Magistrate Judge S. Kato Crews Case in other court: USCA, 14−01233 Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 12/10/2013 Date Terminated: 03/13/2020 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Dr. James C Dobson

represented by Gregory Scott Baylor Alliance Defending Freedom−DC 440 First Street, NW Suite 600 Washington, DC 20001 202−393−8690 Fax: 202−347−3622 Email: gbaylor@alliancedefendingfreedom.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Andrew Cortman Alliance Defending Freedom−Lawrenceville 1000 Hurricane Shoals Road, NE Suite D−1100 Lawrenceville, GA 30043 770−339−0774 Fax: 770−339−6744 Email: dcortman@ADFlegal.org ATTORNEY TO BE NOTICED

Ian Seth Speir Nussbaum Speir Gleason PLLC 90 South Cascade Avenue Suite 400 Colorado Springs, CO 80903 719−357−4447 Email: ian@nussbaumspeir.com ATTORNEY TO BE NOTICED

Jeremy David Tedesco Alliance Defending Freedom−Scottsdale 15100 North 90th Street Scottsdale, AZ 85260 480−444−0020 Fax: 480−444−0028 Email: jtedesco@ADFlegal.org ATTORNEY TO BE NOTICED

Kevin H. Theriot Alliance Defending Freedom−Scottsdale 15100 North 90th Street Scottsdale, AZ 85260 480−444−0020 Fax: 480−444−0025 Email: ktheriot@alliancedefendingfreedom.org ATTORNEY TO BE NOTICED

L. Martin Nussbaum Nussbaum Speir Gleason PLLC

Case: 1:13-cv-3326 As of: 05/27/2020 03:04 PM MDT 2 of 9

90 South Cascade Avenue Suite 400 Colorado Springs, CO 80903 719−357−4447 Email: martin@nussbaumspeir.com ATTORNEY TO BE NOTICED

Matthew Scott Bowman Alliance Defending Freedom−DC 440 First Street, NW Suite 600 Washington, DC 20001 202−393−8690 Fax: 202−347−3622 Email: matthewsbowman@gmail.com TERMINATED: 01/17/2017

Michael Jeffrey Norton Michael J. Norton, Attorney at Law 100 E. Union Avenue No. 1712 Denver, CO 80237 303−818−6811 Email: mjnortonlaw@gmail.com ATTORNEY TO BE NOTICED

Plaintiff Family Talk

represented by Gregory Scott Baylor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Andrew Cortman (See above for address) ATTORNEY TO BE NOTICED

Ian Seth Speir (See above for address) ATTORNEY TO BE NOTICED

Jeremy David Tedesco (See above for address) ATTORNEY TO BE NOTICED

Kevin H. Theriot (See above for address) ATTORNEY TO BE NOTICED

L. Martin Nussbaum (See above for address) ATTORNEY TO BE NOTICED

Matthew Scott Bowman (See above for address) TERMINATED: 01/17/2017

Michael Jeffrey Norton (See above for address) ATTORNEY TO BE NOTICED

V. Defendant

Case: 1:13-cv-3326 As of: 05/27/2020 03:04 PM MDT 3 of 9

Kathleen Sebelius in her official capacity as Secretary of the United States Department of Health and Human Services

represented by Michelle Renee Bennett U.S. Department of Justice−DC−Federal Programs Branch 20 Massachusetts Avenue N.W. Washington, DC 20530 202−305−8902 Fax: 202−616−8470 Email: michelle.bennett@usdoj.gov ATTORNEY TO BE NOTICED

Defendant
Thomas E. Perez in his official capacity as Secretary of the United States Department of Labor

represented by Michelle Renee Bennett (See above for address) ATTORNEY TO BE NOTICED

Defendant
Jacob J. Lew in his official capacity as Secretary of the United States Department of the Treasury

represented by Michelle Renee Bennett (See above for address) ATTORNEY TO BE NOTICED

Defendant
United States Department of Health and Human Services

represented by Michelle Renee Bennett (See above for address) ATTORNEY TO BE NOTICED

Defendant United States Department of Labor

represented by Michelle Renee Bennett (See above for address) ATTORNEY TO BE NOTICED

Defendant
United States Department of the Treasury

represented by Michelle Renee Bennett (See above for address) ATTORNEY TO BE NOTICED

Amicus American Civil Liberties Union

represented by Brigitte Adrienne Amiri American Civil Liberties Union−New York 125 Broad Street 18th Floor New York, NY 10004−2400 212−549−2633 Fax: 212−549−2650 Email: bamiri@aclu.org ATTORNEY TO BE NOTICED

Amicus
American Civil Liberties Union of Colorado

represented by Brigitte Adrienne Amiri (See above for address) ATTORNEY TO BE NOTICED

Date Filed 12/10/2013

# Docket Text
1 COMPLAINT againstJacob J. Lew, Thomas E. Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Filing fee $ 400,Receipt Number 1082−3655041)Attorney Matthew Scott Bowman added to party James C Dobson(pty:pla), Attorney Matthew Scott Bowman added to party Family Talk(pty:pla), filed by Family Talk, James C Dobson. (Attachments: # 1 Summons of

Case: 1:13-cv-3326 As of: 05/27/2020 03:04 PM MDT 4 of 9

12/10/2013 12/10/2013 12/10/2013 12/11/2013 12/16/2013
12/17/2013 12/17/2013 12/17/2013 12/17/2013 12/17/2013 12/27/2013

Kathleen Sebelius, # 2 Summons of Thomas E Perez, # 3 Summons of Jacob J. Lew, # 4 Summons of United States Department of Health and Human Services, # 5 Summons of United States Department of Labor, # 6 Summons United States Department of the Treasury, # 7 Summons of United States Attorney General Eric H. Holder, Jr., # 8 Summons of United States District Attorney Dan May for the District of Colorado, # 9 Civil Cover Sheet)(Bowman, Matthew) (Entered: 12/10/2013)
2 CORPORATE DISCLOSURE STATEMENT. (Bowman, Matthew) (Entered: 12/10/2013)
3 NOTICE of Related Cases by Plaintiffs James C Dobson, Family Talk (Bowman, Matthew) (Entered: 12/10/2013)
4 Case assigned to Judge Robert E. Blackburn and drawn to Magistrate Judge Craig B. Shaffer. Text Only Entry. (agarc, ) (Entered: 12/11/2013)
5 SUMMONS issued by Clerk. Magistrate Judge Consent Form attached. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons, # 7 Summons, # 8 Magistrate Judge Consent Form) (agarc, ) (Entered: 12/11/2013)
6 ORDER REFERRING CASE to Magistrate Judge Craig B. Shaffer. That pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and Fed. R. Civ. P. 72(a) and (b), this matter is referred to the assigned United States Magistrate Judge: (1) To convene a scheduling conference under Fed. R. Civ. P. 16(b), enter a scheduling Order that satisfies the requirements of D.C.COLO.LCivR 16.2, and enter such orders as appropriate to enforce the Scheduling order and resolve discovery matters; provided, further that the scheduling conference, the Magistrate Judge shall advise the parties of Judge Blackburns practice standards found at www.cod.uscourts.gov.; (2) To hear and finally determine non−dispositive matters that have been referred, subject to the exceptions found in 28 U.S.C. § 636(b)(1)(A); and (3) To hear and make recommendations on dispositive matters that have been referred as defined in 28 U.S.C. § 636(b)(1)(A). Court sponsored alternative dispute resolution is governed by D.C.COLOLCivR 16.6. On the recommendation or informal request of the magistrate judge or on the request of the parties by motion, this court may direct the parties to engage in an early neutral evaluation, a settlement conference, or another alternative dispute resolution proceeding. By Judge Robert E. Blackburn on 12/16/13. Text Only Entry (rebcd) (Entered: 12/16/2013)
7 NOTICE of Entry of Appearance by Gregory S. Baylor on behalf of All Plaintiffs Attorney Gregory S. Baylor added to party James C Dobson(pty:pla), Attorney Gregory S. Baylor added to party Family Talk(pty:pla) (Baylor, Gregory) (Entered: 12/17/2013)
8 NOTICE of Entry of Appearance by David Andrew Cortman on behalf of All Plaintiffs Attorney David Andrew Cortman added to party James C Dobson(pty:pla), Attorney David Andrew Cortman added to party Family Talk(pty:pla) (Cortman, David) (Entered: 12/17/2013)
9 NOTICE of Entry of Appearance by Kevin H. Theriot on behalf of All Plaintiffs Attorney Kevin H. Theriot added to party James C Dobson(pty:pla), Attorney Kevin H. Theriot added to party Family Talk(pty:pla) (Theriot, Kevin) (Entered: 12/17/2013)
10 NOTICE of Entry of Appearance by Jeremy David Tedesco on behalf of All Plaintiffs Attorney Jeremy David Tedesco added to party James C Dobson(pty:pla), Attorney Jeremy David Tedesco added to party Family Talk(pty:pla) (Tedesco, Jeremy) (Entered: 12/17/2013)
11 NOTICE of Entry of Appearance by Michael Jeffrey Norton on behalf of All Plaintiffs Attorney Michael Jeffrey Norton added to party James C Dobson(pty:pla), Attorney Michael Jeffrey Norton added to party Family Talk(pty:pla) (Norton, Michael) (Entered: 12/17/2013)
12 MINUTE ORDER setting a Scheduling Conference on 2/28/2014 at 9:15 AM in Courtroom A 402 before Magistrate Judge Craig B. Shaffer. In preparing for the scheduling conference parties shall adhere to the attached instructions and deadlines. SO ORDERED by Magistrate Judge Craig B. Shaffer on 12/27/13. (cbssec) (Entered:

Case: 1:13-cv-3326 As of: 05/27/2020 03:04 PM MDT 5 of 9

01/03/2014
01/03/2014 01/16/2014
01/16/2014 01/16/2014 01/21/2014 01/21/2014 02/03/2014 02/05/2014
02/05/2014 02/06/2014
02/12/2014

12/27/2013)
13 SUMMONS Returned Executed upon defendant(s) Jacob J. Lew served on 12/23/2013, answer due 2/21/2014; Thomas E. Perez served on 12/23/2013, answer due 2/21/2014; Kathleen Sebelius served on 12/23/2013, answer due 2/21/2014; United States Department of Health and Human Services served on 12/23/2013, answer due 2/21/2014; United States Department of Labor served on 12/23/2013, answer due 2/21/2014; United States Department of the Treasury served on 12/23/2013, answer due 2/21/2014. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Tedesco, Jeremy) (Entered: 01/03/2014)
14 CERTIFICATE of Mailing/Service re 12 Minute Order, by Plaintiffs James C Dobson, Family Talk. (Tedesco, Jeremy) (Entered: 01/03/2014)
15 AFFIDAVIT/RETURN of Service of Magistrate Judge Instruction packet upon Eric H. Holder, Jr., Kathleen Sebelius, Thomas Perez, Jacob Lew, US Dept of Health and Social Services, U.S. Dept of Labor, U.S. Dept of the Treasury on January 6 & 7, 2014, filed by Plaintiffs James C Dobson, Family Talk (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Tedesco, Jeremy) (Entered: 01/16/2014)
16 NOTICE of Entry of Appearance by L. Martin Nussbaum on behalf of James C Dobson, Family TalkAttorney L. Martin Nussbaum added to party James C Dobson(pty:pla), Attorney L. Martin Nussbaum added to party Family Talk(pty:pla) (Nussbaum, L.) (Entered: 01/16/2014)
17 NOTICE of Entry of Appearance by Ian Seth Speir on behalf of James C Dobson, Family TalkAttorney Ian Seth Speir added to party James C Dobson(pty:pla), Attorney Ian Seth Speir added to party Family Talk(pty:pla) (Speir, Ian) (Entered: 01/16/2014)
18 MOTION for Preliminary Injunction by Plaintiffs James C Dobson, Family Talk. (Attachments: # 1 Proposed Order (PDF Only))(Bowman, Matthew) (Entered: 01/21/2014)
19 BRIEF in Support of 18 MOTION for Preliminary Injunction filed by Plaintiffs James C Dobson, Family Talk. (Bowman, Matthew) (Entered: 01/21/2014)
20 AFFIDAVIT Proof of Service by Plaintiffs James C Dobson, Family Talk. (Attachments: # 1 Exhibit A − Proof of Service on John F. Walsh, US Attorney)(Tedesco, Jeremy) (Entered: 02/03/2014)
21 NOTICE of Entry of Appearance by Michelle Renee Bennett on behalf of All Defendants Attorney Michelle Renee Bennett added to party Jacob J. Lew(pty:dft), Attorney Michelle Renee Bennett added to party Thomas E. Perez(pty:dft), Attorney Michelle Renee Bennett added to party Kathleen Sebelius(pty:dft), Attorney Michelle Renee Bennett added to party United States Department of Health and Human Services(pty:dft), Attorney Michelle Renee Bennett added to party United States Department of Labor(pty:dft), Attorney Michelle Renee Bennett added to party United States Department of the Treasury (pty:dft) (Bennett, Michelle) (Entered: 02/05/2014)
22 Joint MOTION for Extension of Time to Vacate Scheduling Deadlines, Unopposed MOTION for Extension of Time to File Answer or Otherwise Respond re 1 Complaint,,, 12 Minute Order, by Defendants and by Plaintiffs James C Dobson, Family Talk. (Attachments: # 1 Proposed Order (PDF Only))(Bowman, Matthew) (Entered: 02/05/2014)
23 MEMORANDUM regarding 22 Joint MOTION for Extension of Time to Vacate Scheduling DeadlinesUnopposed MOTION for Extension of Time to File Answer or Otherwise Respond re 1 Complaint,,, 12 Minute Order, by Defendants and filed by James C Dobson, Family Talk. Motions referred to Magistrate Judge Craig B. Shaffer by Judge Robert E. Blackburn on 2/6/14. Text Only Entry (rebsec,) (Entered: 02/06/2014)
24 MINUTE ORDER converting the 2/28/14 Scheduling Conference to a Telephone Status Conference at 9:15 a.m. before Magistrate Judge Craig B. Shaffer. To ensure the clearest connection possible, parties are directed to work together to arrange a conference call utilizing the services of a third−party conferencing center. Not later

Case: 1:13-cv-3326 As of: 05/27/2020 03:04 PM MDT 6 of 9

02/12/2014
02/12/2014 02/12/2014 02/12/2014
02/14/2014 02/14/2014 02/18/2014 02/18/2014 02/18/2014 02/24/2014

than 24 hours prior to the hearing the phone number and passcode shall be distributed so that everyone (court included) can dial−in. Text Only Entry by Magistrate Judge Craig B. Shaffer on 2/12/14. (cbssec) (Entered: 02/12/2014)
25 AMENDED 24 MINUTE ORDER converting the 2/28/14 Scheduling Conference to a Telephone Status Conference at 9:15 a.m. before Magistrate Judge Craig B. Shaffer. To ensure the clearest connection possible, parties are directed to work together to arrange a conference call utilizing the services of a third−party conferencing center. Not later than 24 hours prior to the hearing the phone number and passcode shall be distributed so that everyone (court included) can dial−in. ORDERED that Defendants' deadline to respond to Plaintiffs' complaint, as well as the deadlines set in preparation of the Rule 16(b) Scheduling Conference are stayed pending the Status Conference. Text Only Entry by Magistrate Judge Craig B. Shaffer on 2/12/14. (cbssec) (Entered: 02/12/2014)
26 Unopposed MOTION to Reset Telephone Status Conference by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 02/12/2014)
27 MEMORANDUM regarding 26 Unopposed MOTION to Reset Telephone Status Conference filed by Kathleen Sebelius, United States Department of Health and Human Services, Thomas E. Perez, Jacob J. Lew, United States Department of the Treasury, United States Department of Labor. Motions referred to Magistrate Judge Craig B. Shaffer by Judge Robert E. Blackburn on 2/12/14. Text Only Entry (rebsec,) (Entered: 02/12/2014)
28 ORDER granting 26 Motion to Reset and resetting the Telephone Status Conference to 2/25/2014 at 9:15 AM (Mountain Time) before Magistrate Judge Craig B. Shaffer. To ensure the clearest connection possible, parties are directed to work together to arrange a conference call utilizing the services of a third−party conferencing center. Not later than 24 hours prior to the hearing the phone number and passcode shall be distributed so that everyone (court included) can dial−in. Text Only Entry by Magistrate Judge Craig B. Shaffer on 2/12/14.(cbssec) (Entered: 02/12/2014)
29 NOTICE of Filing of Administrative Record by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Attachments: # 1 Index of Administrative Record, # 2 Certification of Administrative Record)(Bennett, Michelle) (Entered: 02/14/2014)
30 BRIEF in Opposition to 18 MOTION for Preliminary Injunction filed by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 02/14/2014)
31 MOTION to File Amicus Brief and Proposed Amicus Brief by Amicus Parties American Civil Liberties Union, American Civil Liberties Union of Colorado. (Attachments: # 1 Proposed Order (PDF Only))(Amiri, Brigitte) (Entered: 02/18/2014)
32 BRIEF in Opposition to 31 MOTION to File Amicus Brief and Proposed Amicus Brief filed by Plaintiffs James C Dobson, Family Talk. (Bowman, Matthew) (Entered: 02/18/2014)
33 ADMINISTRATIVE RECORD (3 CDs) − by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Text Only Entry − Available in other format at the Clerk's Office) (klyon, ) (Entered: 02/19/2014)
34 NOTICE of Supplemental Authorities re: 30 Brief in Opposition to Motion, by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Attachments: # 1 Exhibit − Notre Dame Decision (7th Cir.))(Bennett, Michelle) (Entered: 02/24/2014)

Case: 1:13-cv-3326 As of: 05/27/2020 03:04 PM MDT 7 of 9

02/25/2014
02/28/2014 04/17/2014 04/21/2014 05/27/2014
06/11/2014 06/11/2014
06/11/2014 06/12/2014
06/16/2014 06/25/2014 06/26/2014
07/23/2014 09/27/2016 01/17/2017

35 COURTROOM MINUTES/MINUTE ORDER for proceedings held before Magistrate Judge Craig B. Shaffer: Status Conference held on 2/25/2014. ORDERED: 22 Joint Motion to Vacate and/or Extend Deadlines is GRANTED. The Defendants' obligation to file a Response to Plaintiffs' Complaint is STAYED pending ruling on 18 Motion for Preliminary Injunction. FTR: Courtroom A402 − C. Covington. (ccovi) (Entered: 02/27/2014)
36 REPLY to Response to 18 MOTION for Preliminary Injunction filed by Plaintiffs James C Dobson, Family Talk. (Attachments: # 1 Exhibit A)(Bowman, Matthew) (Entered: 02/28/2014)
37 ORDER granting 18 Motion for Preliminary Injunction. By Judge Robert E. Blackburn on 4/17/2014.(klyon, ) (Entered: 04/17/2014)
38 RECEIPT for $500 by Plaintiffs James C Dobson, Family Talk re: 37 Order on Motion for Preliminary Injunction (evana, ) (Entered: 04/22/2014)
39 ORDER: A Telephone Status Conference is set for Thursday, June 12, 2014 at 9:15 a.m. in Courtroom A−402 before Magistrate Judge Craig B. Shaffer. Counsel participating in the Telephone Conference shall initiate a conference call among themselves and then call the court at (303) 844−2117 at the scheduled time. By Magistrate Judge Craig B. Shaffer on 05/27/2014. Text Only Entry (cbslc1) (Entered: 05/27/2014)
40 NOTICE OF APPEAL as to 37 Order on Motion for Preliminary Injunction by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Bennett, Michelle) (Entered: 06/11/2014)
41 LETTER Transmitting Notice of Appeal to all counsel advising of the transmittal of the 40 Notice of Appeal, filed by Kathleen Sebelius, United States Department of Health and Human Services, Thomas E. Perez, Jacob J. Lew, United States Department of the Treasury, United States Department of Labor to the U.S. Court of Appeals. ( Retained Counsel,) (Attachments: # 1 Docket Sheet, # 2 Preliminary Record)(dbrow, ) (Entered: 06/11/2014)
42 USCA Case Number 14−1233 for 40 Notice of Appeal, filed by Kathleen Sebelius, United States Department of Health and Human Services, Thomas E. Perez, Jacob J. Lew, United States Department of the Treasury, United States Department of Labor. (dbrow, ) (Entered: 06/11/2014)
43 MINUTE ENTRY for proceedings held before Magistrate Judge Craig B. Shaffer: Telephonic Status Conference held on 6/12/2014. ORDERED: The Court issues a Stay for all further proceedings in this case pending a decision on the appeal. Counsel are required to notify Magistrate Judge Shaffer's chambers within 72 hours of a ruling on Notice of Appeal 40 . FTR: Courtroom A−402. (amont) (Entered: 06/12/2014)
44 NOTICE of Entry of Appearance and Certificate of Interested Parties re 40 Notice of Appeal, by Defendants. (dbrow, ) (Entered: 06/16/2014)
45 TRANSCRIPT ORDER FORM by Defendants. Transcript not necessary re 40 Notice of Appeal,. (dbrow, ) (Entered: 06/26/2014)
46 LETTER TO USCA and all counsel certifying the record is complete as to 40 Notice of Appeal, filed by Kathleen Sebelius, United States Department of Health and Human Services, Thomas E. Perez, Jacob J. Lew, United States Department of the Treasury, United States Department of Labor. A transcript order form was filed stating that a transcript is not necessary. (Appeal No. 14−1233) Text Only Entry (dbrow, ) (Entered: 06/26/2014)
47 MINUTE ORDER denying as moot 31 Motion to File Amicus Brief, by Judge Robert E. Blackburn on 7/23/2014.(trlee, ) (Entered: 07/23/2014)
48 ORDER of Administrative Closure. By Judge Robert E. Blackburn on 9/27/2016. (agarc, ) (Entered: 09/27/2016)
49 Unopposed MOTION to Withdraw as Attorney by Plaintiffs James C Dobson, Family Talk. (Bowman, Matthew) (Entered: 01/17/2017)

Case: 1:13-cv-3326 As of: 05/27/2020 03:04 PM MDT 8 of 9

01/17/2017 01/17/2017 07/21/2017 10/23/2017 10/23/2017 06/19/2018 06/19/2018
06/20/2018
07/10/2018 07/17/2018 08/03/2018

50 MEMORANDUM regarding 49 Unopposed MOTION to Withdraw as Attorney filed by James C Dobson, Family Talk. Motion referred to Magistrate Judge Craig B. Shaffer by Judge Robert E. Blackburn on 1/17/17. Text Only Entry (rebsec) (Entered: 01/17/2017)
51 ORDER granting 49 Motion to Withdraw as Attorney. Attorney Matthew Scott Bowman is terminated as counsel of record for Plaintiffs. The Clerk of Court shall terminate Ms. Bowman from any further electronic notifications in this case. By Magistrate Judge Craig B. Shaffer on 1/17/2017. Text Only Entry (cbslc2) (Entered: 01/17/2017)
52 ORDER of USCA as to 40 Notice of Appeal, filed by Kathleen Sebelius, United States Department of Health and Human Services, Thomas E. Perez, Jacob J. Lew, United States Department of the Treasury, United States Department of Labor. This matter will remain abated pending receipt of the appellees response. (USCA Case No. 14−1233) (athom, ) (Entered: 07/21/2017)
53 USCA Order as to 40 Notice of Appeal, filed by Kathleen Sebelius, United States Department of Health and Human Services, Thomas E. Perez, Jacob J. Lew, United States Department of the Treasury, United States Department of Labor : Appellants' Motion for Voluntary Dismissal is GRANTED, and this matter is dismissed pursuant to Fed. R. App. P. 42(b). (USCA Case No. 14−1233) (This document is not the Mandate) (athom, ) (Entered: 10/23/2017)
54 MANDATE of USCA as to 40 Notice of Appeal, filed by Kathleen Sebelius, United States Department of Health and Human Services, Thomas E. Perez, Jacob J. Lew, United States Department of the Treasury, United States Department of Labor, 53 USCA Order : (USCA Case No. 14−1233) (athom, ) (Entered: 10/23/2017)
55 Unopposed MOTION to Reopen Case , MOTION for Permanent Injunction and Declaratory Judgment by Plaintiffs James C Dobson, Family Talk. (Nussbaum, L.) (Entered: 06/19/2018)
56 BRIEF in Support of 55 Unopposed MOTION to Reopen Case MOTION for Permanent Injunction and Declaratory Judgment filed by Plaintiffs James C Dobson, Family Talk. (Attachments: # 1 Exhibit A − CBA Amicus Brief, # 2 Exhibit B − Wheaton College v. Hargan, # 3 Exhibit C − Catholic Benefits Assn v. Hargan, # 4 Exhibit D − Reaching Souls Int'l v. Azar, # 5 Exhibit E − So. Nazarene Univ. v. Azar, # 6 Exhibit F − Little Sisters of the Poor v. Azar, # 7 Exhibit G − Grace Schools v. Azar, # 8 Exhibit H − Dordt College v. Azar)(Nussbaum, L.) (Entered: 06/19/2018)
57 ORDER TO REOPEN CASE. The Plaintiffs' Motion to Reopen Proceedings and For Permanent Injunction and Declaratory Relief [# 55 ] is granted in part. Under D.C.COLO.LCivR 41.2, the clerk is directed to reopen this civil action. The order of reference to the magistrate judge [# 6 ], filed December 16, 2013, shall remain in full force and effect. I defer ruling on the motion [# 55 ] to the extent the plaintiffs seek a permanent injunction and declaratory relief. A response and reply to the motion for permanent injunction and declaratory relief shall be marshaled under D.C.COLO.LCivR 7.1(d). By Judge Robert E. Blackburn on 06/20/2018. (athom, ) (Entered: 06/20/2018)
58 RESPONSE to 55 MOTION for Permanent Injunction and Declaratory Judgment filed by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) Modified on 7/11/2018 to correct text (athom, ). (Entered: 07/10/2018)
59 REPLY to Response to 55 MOTION for Permanent Injunction and Declaratory Judgment filed by Plaintiffs James C Dobson, Family Talk. (Nussbaum, L.) Modified on 7/18/2018 to correct text (athom, ). (Entered: 07/17/2018)
60 REASSIGNING MAGISTRATE JUDGE. This action is reassigned to Magistrate Judge S. Kato Crews, upon his appointment. All future pleadings should reference Magistrate Judge Crews at the end of the civil action number (such as 15−cv−00001−PAB−SKC). Unless otherwise ordered, the dates and times for all previously scheduled matters will be maintained and will now be handled by Magistrate Judge Crews in Courtroom C−204. His chambers are located in Room C−253 of the Byron G. Rogers Courthouse. His telephone number is 303−335−2117.

Case: 1:13-cv-3326 As of: 05/27/2020 03:04 PM MDT 9 of 9

03/26/2019 03/26/2019 04/16/2019 12/28/2019
03/13/2020 03/13/2020
03/24/2020

(Text only entry) (agarc, ) (Entered: 08/03/2018)
61 ORDER by Judge Robert E. Blackburn on 3/26/2019, re: 55 Motion for Permanent Injunction and Declaratory Judgment is GRANTED IN PART on the terms stated in this order. ORDERED that, on or before April 26, 2019, the plaintiffs shall file a status report stating if they wish to proceed with their second through seventh claims for relief, as alleged in the complaint 31 . (sphil, ) (Entered: 03/26/2019)
***Set/Reset Deadlines: Status Report due by 4/26/2019. (sphil, ) (Entered: 03/26/2019)
62 STATUS REPORT AND COMBINED MOTION FOR DISMISSAL OF NON−RFRA CLAIMS, ENTRY OF FINAL JUDGMENT, AND EXTENSION OF TIME TO SUBMIT MOTION FOR ATTORNEY'S FEES AND COSTS by Plaintiffs James C Dobson, Family Talk. (Speir, Ian) Modified on 4/17/2019 to correct event (athom, ). (Entered: 04/16/2019)
63 ADVISORY NOTICE TO ATTORNEY AND COURT: Under D.C.COLO.LAttyR 3(a), Kevin H. Theriot was administratively removed from the court's attorney roll and barred from filing electronically under CM/ECF for failing to pay the 2018 Biennial Fee. Each counsel must complete a Bar/ECF application through counsel's Attorney Services Portal account and pay the full application fee to be restored to the attorney roll and CM/ECF. Upon reinstatement, counsel must file a Notice of Entry of Appearance in this case. (Text Only Entry) (mfred) (Entered: 12/28/2019)
64 ORDER for Entry of Final Judgment. GRANTING 62 Plaintiffs' Status Report and Combined Motion for Dismissal of Non−RFRA Claims, Entry of Final Judgment, and Extension of Time to Submit Motion for Attorney's Fees and Costs. SO ORDERED by Judge Robert E. Blackburn on 03/13/2020.(swest) (Entered: 03/13/2020)
65 FINAL JUDGMENT in favor of Plaintiffs Dr. James C. Dobson and Family Talk and against Alex Azar, in his official capacity as Secretary of the United States Department of Health and Human Services, Alexander Acosta, in his official capacity as Secretary of the United States Department of Labor, Steven Mnuchin, in his official capacity as Secretary of the United States Department of Treasury, United States Department of Health and Human Services, United States Department of Labor, and United States Department of the Treasury re: 64 Order for Entry of Final Judgment. Entered by the Clerk on 3/13/2020. (swest) (Entered: 03/13/2020)
66 NOTICE of Settlement re Costs and Attorneys' Fees by Plaintiffs James C Dobson, Family Talk (Speir, Ian) (Entered: 03/24/2020)

 
 Case: 1:13-cv-1207 As of: 11/02/2017 11:51 PM EDT 1 of 6
JURY,STAYED,TYPE−L
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:13−cv−01207−EGS

BINDON et al v. SEBELIUS et al Assigned to: Judge Emmet G. Sullivan Cause: 28:1331 Fed. Question Plaintiff STEPHEN BINDON plaintiff
Plaintiff TRIJICON, INC.
Plaintiff MICHAEL BINDON
Plaintiff MARK BINDON

Date Filed: 08/05/2013 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant
represented by Steven Henry Aden ALLIANCE DEFENDING FREEDOM 440 First STreet, NW Suite 600 Washington, DC 20001 (202) 393−8690 Fax: (202) 347−3622 Email: saden@adflegal.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew S. Bowman 4101 Crittenden Street Hyattsville, MD 20781 (301) 209−8363 Email: matthewsbowman@gmail.com TERMINATED: 04/05/2017 ATTORNEY TO BE NOTICED
represented by Steven Henry Aden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew S. Bowman (See above for address) TERMINATED: 04/05/2017 ATTORNEY TO BE NOTICED
represented by Steven Henry Aden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew S. Bowman (See above for address) TERMINATED: 04/05/2017 ATTORNEY TO BE NOTICED
represented by Steven Henry Aden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew S. Bowman (See above for address) TERMINATED: 04/05/2017

Case: 1:13-cv-1207 As of: 11/02/2017 11:51 PM EDT 2 of 6

ATTORNEY TO BE NOTICED

Plaintiff SHARON LYCOS

represented by Steven Henry Aden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew S. Bowman (See above for address) TERMINATED: 04/05/2017 ATTORNEY TO BE NOTICED

Plaintiff TIMOTHY BINDON

represented by Steven Henry Aden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew S. Bowman (See above for address) TERMINATED: 04/05/2017 ATTORNEY TO BE NOTICED

Plaintiff BETHANNE FALKOWSKI

represented by Steven Henry Aden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew S. Bowman (See above for address) TERMINATED: 04/05/2017 ATTORNEY TO BE NOTICED

V. Defendant KATHLEEN SEBELIUS Secretary of Health and Human Services
Defendant

represented by Benjamin Leon Berwick THE PROTECT DEMOCRACY PROJECT 2020 Pennsylvania Avenue, NW Suite 163 Washington, DC 20006 (202) 305−8573 Fax: (202) 616−8470 Email: benjamin.l.berwick@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michelle Renee Bennett U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW Washington, DC 20530 (202) 305−8902 Fax: (202) 616−8470 Email: michelle.bennett@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:13-cv-1207 As of: 11/02/2017 11:51 PM EDT 3 of 6

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES

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

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

Defendant
JACOB J. LEW Secretary of United States Department of the Treasury

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

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

Defendant
UNITED STATES DEPARTMENT OF THE TREASURY

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

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

Defendant
THOMAS E. PEREZ Secretary of United States Department of Labor

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

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

Defendant
UNITED STATES DEPARTMENT OF LABOR

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

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

Date Filed 08/05/2013

# Docket Text
1 COMPLAINT Verified against All Defendants with Jury Demand ( Filing fee $ 400 receipt number 0090−3424019) filed by TIMOTHY BINDON, MICHAEL BINDON, BETHANNE FALKOWSKI, TRIJICON, INC., MARK BINDON, STEPHEN BINDON, SHARON LYCOS. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons, # 7 Summons)(Bowman,

Case: 1:13-cv-1207 As of: 11/02/2017 11:51 PM EDT 4 of 6

08/05/2013 08/05/2013 08/07/2013
08/07/2013 08/07/2013 08/07/2013 08/08/2013 08/09/2013 08/09/2013 08/13/2013 08/13/2013 08/13/2013 08/13/2013 08/13/2013 08/13/2013

Matthew) (Entered: 08/05/2013)
2 Corporate Disclosure Statement by MARK BINDON, MICHAEL BINDON, STEPHEN BINDON, TIMOTHY BINDON, BETHANNE FALKOWSKI, SHARON LYCOS, TRIJICON, INC.. (Bowman, Matthew) (Entered: 08/05/2013)
Case Assigned to Judge Emmet G. Sullivan. (md, ) (Entered: 08/06/2013)
3 ELECTRONIC SUMMONS ISSUED (6) as to JACOB J. LEW, THOMAS E. PEREZ, KATHLEEN SEBELIUS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES,, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Attachments: # 1 Summons 2nd, # 2 Summons 3rd, # 3 Summons 4th, # 4 Summons 5th, # 5 Summons 6th, # 6 Notice of Consent, # 7 Consent Form)(md, ) (Entered: 08/07/2013)
4 NOTICE Summons for Attorney General Eric Holder, Jr. by MARK BINDON, MICHAEL BINDON, STEPHEN BINDON, TIMOTHY BINDON, BETHANNE FALKOWSKI, SHARON LYCOS, TRIJICON, INC. (Bowman, Matthew) (Entered: 08/07/2013)
5 NOTICE Summons of Ronald C. Machen, Jr. by MARK BINDON, MICHAEL BINDON, STEPHEN BINDON, TIMOTHY BINDON, BETHANNE FALKOWSKI, SHARON LYCOS, TRIJICON, INC. (Bowman, Matthew) (Entered: 08/07/2013)
6 MOTION for Preliminary Injunction and Memorandum of Law In Support by MARK BINDON, MICHAEL BINDON, STEPHEN BINDON, TIMOTHY BINDON, BETHANNE FALKOWSKI, SHARON LYCOS, TRIJICON, INC. (Attachments: # 1 Text of Proposed Order)(Bowman, Matthew) (Entered: 08/07/2013)
7 ELECTRONIC SUMMONS Issued (2) as to U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons 2nd)(md, ) (Entered: 08/08/2013)
8 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General August 8, 2013. (Bowman, Matthew) (Entered: 08/09/2013)
9 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 8/8/2013. Answer due for ALL FEDERAL DEFENDANTS by 10/7/2013. (Bowman, Matthew) (Entered: 08/09/2013)
10 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. KATHLEEN SEBELIUS served on 8/12/2013 (Attachments: # 1 Certificate of Service Exhibit to Affidavit of Service)(Bowman, Matthew) (Entered: 08/13/2013)
11 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES served on 8/12/2013 (Attachments: # 1 Certificate of Service Exhibit to Affidavit of Service)(Bowman, Matthew) (Entered: 08/13/2013)
12 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. JACOB J. LEW served on 8/12/2013 (Attachments: # 1 Certificate of Service Exhibit to Affidavit of Service)(Bowman, Matthew) (Entered: 08/13/2013)
13 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF THE TREASURY served on 8/12/2013 (Attachments: # 1 Certificate of Service Exhibit to Affidavit of Service)(Bowman, Matthew) (Entered: 08/13/2013)
14 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. THOMAS E. PEREZ served on 8/12/2013 (Attachments: # 1 Certificate of Service Exhibit to Affidavit of Service)(Bowman, Matthew) (Entered: 08/13/2013)
15 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF LABOR served on 8/12/2013 (Attachments: # 1 Certificate of Service Exhibit to Affidavit of Service)(Bowman, Matthew) (Entered: 08/13/2013)

Case: 1:13-cv-1207 As of: 11/02/2017 11:51 PM EDT 5 of 6

08/13/2013 08/13/2013
08/13/2013 08/13/2013
08/13/2013
08/14/2013 08/14/2013 08/15/2013 08/28/2014 08/29/2014 08/29/2014 09/08/2014
09/08/2014 09/09/2014 10/08/2014

16 NOTICE of Appearance by Benjamin Leon Berwick on behalf of All Defendants (Berwick, Benjamin) (Entered: 08/13/2013)
17 Unopposed MOTION to Stay Proceedings by JACOB J. LEW, THOMAS E. PEREZ, KATHLEEN SEBELIUS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY (Attachments: # 1 Text of Proposed Order)(Berwick, Benjamin). (Entered: 08/13/2013)
NOTICE OF ERROR re 17 Motion to Stay; emailed to benjamin.l.berwick@usdoj.gov, cc'd 3 associated attorneys −− The PDF file you docketed contained errors: 1. Two−part docket entry, 2. Please refile document, 3. under the Notice cateogry (jf, ) (Entered: 08/13/2013)
18 NOTICE of Non−Opposition by JACOB J. LEW, THOMAS E. PEREZ, KATHLEEN SEBELIUS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY re 6 MOTION for Preliminary Injunction and Memorandum of Law In Support (Attachments: # 1 Text of Proposed Order)(Berwick, Benjamin) (Entered: 08/13/2013)
MINUTE ORDER. Upon review of defendants' 17 unopposed motion to stay proceedings and 18 notice of non−opposition, the Court hereby GRANTS defendants' motion. These proceedings are hereby stayed pending the issuance of a mandate by the United States Court of Appeals for the District of Columbia in Gilardi v. Department of Health and Human Services, No. 13−5069. The parties are directed to file a joint recommendation for further proceedings within 30 days of the issuance of the mandate in that action. In the event that counsel are unable to agree on a joint recommendation, each party shall file an individual recommendation within that time. Signed by Judge Emmet G. Sullivan on August 13, 2013. (lcegs1) (Entered: 08/13/2013)
MINUTE ORDER. The Court hereby vacates its August 13, 2013 minute order staying proceedings in this matter. The Court regrets any confusion this may have caused. Signed by Judge Emmet G. Sullivan on August 14, 2013. (lcegs1) (Entered: 08/14/2013)
19 ORDER granting 6 motion for preliminary injunction and 17 motion to stay. Signed by Judge Emmet G. Sullivan on August 14, 2013. (lcegs1) (Entered: 08/14/2013)
Case Stayed (mac) (Entered: 08/15/2013)
20 NOTICE of recommendation for further proceedings as ordered by the court by MARK BINDON, MICHAEL BINDON, STEPHEN BINDON, TIMOTHY BINDON, BETHANNE FALKOWSKI, SHARON LYCOS, TRIJICON, INC. (Bowman, Matthew) (Entered: 08/28/2014)
MINUTE ORDER. The Court directs the government to file its recommendation for further proceedings by no later than September 8, 2014. Signed by Judge Emmet G. Sullivan on August 29, 2014. (lcegs4) (Entered: 08/29/2014)
Set/Reset Deadlines: Recommendation due by 9/8/2014. (mac) (Entered: 08/29/2014)
21 NOTICE of Recommendation for Further Proceedings by JACOB J. LEW, THOMAS E. PEREZ, KATHLEEN SEBELIUS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY (Berwick, Benjamin) (Entered: 09/08/2014)
MINUTE ORDER. Upon consideration of 20 and 21 , it is hereby ORDERED that the government file a recommendation for further proceedings by no later than October 8, 2014. Signed by Judge Emmet G. Sullivan on September 8, 2014. (lcegs4) (Entered: 09/08/2014)
Set/Reset Deadlines: Recommendation For Further Proceedings due by 10/8/2014. (mac) (Entered: 09/09/2014)
22 NOTICE of Consent to Injunction and Judgment by JACOB J. LEW, THOMAS E. PEREZ, KATHLEEN SEBELIUS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR,

Case: 1:13-cv-1207 As of: 11/02/2017 11:51 PM EDT 6 of 6

10/08/2014 10/08/2014
10/08/2014 10/29/2014
10/29/2014 07/17/2015 07/17/2015 04/05/2017 04/05/2017

UNITED STATES DEPARTMENT OF THE TREASURY (Attachments: # 1 Text of Proposed Order)(Berwick, Benjamin) (Entered: 10/08/2014)
23 RESPONSE re 22 Notice (Other), and updated Plaintiffs' recommendation, filed by MARK BINDON, MICHAEL BINDON, STEPHEN BINDON, TIMOTHY BINDON, BETHANNE FALKOWSKI, SHARON LYCOS, TRIJICON, INC.. (Bowman, Matthew) (Entered: 10/08/2014)
MINUTE ORDER. The Court has reviewed 22 , 23 the recommendations submitted by each party. The parties agree that plaintiffs are entitled to judgment in their favor on their RFRA claim, that a permanent injunction of some kind should be entered, and that any petition for attorneys fees or costs shall be submitted on or before 45 days from entry of final judgment. There is a "significant" dispute, however, concerning the nature and scope of the permanent injunction that this Court should enter. The parties both provided their respective positions and proposed orders concerning this dispute. In light of this, the parties are directed to file supplemental memorandum in support of their position. The parties should, among other things, identify the specific language in each proposed permanent injunction that they object to, and provide all relevant authority in support of their position. The parties' supplemental memorandums are due by no later than October 29, 2014. Signed by Judge Emmet G. Sullivan on October 8, 2014. (lcegs4) (Entered: 10/08/2014)
Set/Reset Deadlines: Parties Supplemental Memorandum due by 10/29/2014. (mac) (Entered: 10/08/2014)
24 MEMORANDUM re 23 Response to Document filed by BETHANNE FALKOWSKI, STEPHEN BINDON, TIMOTHY BINDON, MICHAEL BINDON, SHARON LYCOS, MARK BINDON, TRIJICON, INC., 22 Notice (Other), filed by THOMAS E. PEREZ, JACOB J. LEW, UNITED STATES DEPARTMENT OF LABOR, KATHLEEN SEBELIUS, UNITED STATES DEPARTMENT OF THE TREASURY, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES by JACOB J. LEW, THOMAS E. PEREZ, KATHLEEN SEBELIUS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Attachments: # 1 Exhibit Gilardi Order, # 2 Exhibit Johnson Welded Products Order, # 3 Exhibit Midwest Fastener Order, # 4 Exhibit Barron Industries Order, # 5 Exhibit Lindsay Motion)(Berwick, Benjamin) (Entered: 10/29/2014)
25 SUPPLEMENTAL MEMORANDUM to re Order,,,, filed by MARK BINDON, MICHAEL BINDON, STEPHEN BINDON, TIMOTHY BINDON, BETHANNE FALKOWSKI, SHARON LYCOS, TRIJICON, INC.. (Attachments: # 1 Exhibit Conestoga Order, # 2 Exhibit Seneca Order)(Bowman, Matthew) (Entered: 10/29/2014)
26 NOTICE OF SUPPLEMENTAL AUTHORITY by JACOB J. LEW, THOMAS E. PEREZ, KATHLEEN SEBELIUS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY (Attachments: # 1 Tyndale Order)(Bennett, Michelle) (Entered: 07/17/2015)
27 NOTICE of Appearance by Michelle Renee Bennett on behalf of All Defendants (Bennett, Michelle) (Entered: 07/17/2015)
28 NOTICE of Appearance by Steven Henry Aden on behalf of All Plaintiffs (Aden, Steven) (Entered: 04/05/2017)
29 NOTICE OF WITHDRAWAL OF APPEARANCE as to MARK BINDON, MICHAEL BINDON, STEPHEN BINDON, TIMOTHY BINDON, BETHANNE FALKOWSKI, SHARON LYCOS, TRIJICON, INC.. Attorney Matthew S. Bowman terminated. (Bowman, Matthew) (Entered: 04/05/2017)