Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 1 of 54 PageID #: 1

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

)

ARCHDIOCESE OF ST. LOUIS and

)

CATHOLIC CHARITIES OF ST. LOUIS, )

)

Plaintiffs,

)

v.

)

)

KATHLEEN SEBELIUS, in her official )

capacity as Secretary of the U.S.

)

Department of Health and Human

)

Services; THOMAS PEREZ, in his official )

capacity as Secretary of the U.S.

)

Department of Labor; JACOB J. LEW, in )

his official capacity as Secretary of the

)

U.S. Department of the Treasury; U.S.

)

DEPARTMENT OF HEALTH AND

)

HUMAN SERVICES; U.S.

)

DEPARTMENT OF LABOR; and U.S. )

DEPARTMENT OF THE TREASURY, )

)

Defendants.

)

)

)

)

)

)

)

CASE NUMBER: _________ JUDGE: _________________ DATE STAMP: ___________
JURY TRIAL DEMANDED

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 2 of 54 PageID #: 2
COMPLAINT AND JURY DEMAND 1. This lawsuit is about one of America’s most cherished freedoms: the freedom to practice one’s religion without government interference. It is not about whether people have a right to abortion-inducing products, sterilization, and contraception. Those products and services are widely available in the United States, and nothing prevents the Government itself from making them more widely available. Here, however, the Government seeks to require Plaintiffs—both of which are Catholic entities—to violate their sincerely held religious beliefs by providing, paying for, and/or facilitating access to those products and services. American history and tradition, embodied in the First Amendment to the United States Constitution and the Religious Freedom Restoration Act (“RFRA”), safeguard religious entities from such overbearing and oppressive governmental action. Plaintiffs therefore seek relief in this Court to protect this most fundamental of American rights. 2. Plaintiffs provide a wide range of spiritual, educational, and social services to members of the greater St. Louis community, Catholic and non-Catholic alike. For example, Plaintiff Archdiocese of St. Louis (“Archdiocese”) is a Missouri nonprofit corporation and is the civil law corporation for the community of Roman Catholics under the pastoral care of Archbishop Robert J. Carlson. The Archdiocese not only provides pastoral care and spiritual guidance for over 520,000 Catholics, but also serves individuals throughout the St. Louis area through its schools and multiple charitable programs. The Archdiocese’s programs serve those who are most often overlooked in the community, including those with disabilities, those challenged by an unexpected prenatal diagnosis, those re-entering society after imprisonment, and those poor and marginalized with nowhere else to turn. The mission of the Archdiocese is carried out both by the Archdiocese on its own and through the work of its affiliated corporations
2

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 3 of 54 PageID #: 3
(collectively with the Archdiocese, “Archdiocesan Entities”), including Plaintiff Catholic Charities of St. Louis (“Catholic Charities”). Catholic Charities, the largest non-governmental social service provider in the region, offers a host of social services to thousands in need throughout the greater St. Louis area. For those citizens in the community who could not otherwise afford them, Catholic Charities provides free physical and mental health care, legal assistance, immigration assistance, employment training, early childhood services, education, counseling, emergency shelter, housing, and dental services.
3. Plaintiffs’ work is in every respect guided by and consistent with Roman Catholic belief, including the requirement that they serve those in need, regardless of their religion. This is perhaps best captured by words attributed to St. Francis of Assisi: “Preach the Gospel at all times. Use words if necessary.” As Pope Emeritus Benedict XVI has more recently put it, “[L]ove for widows and orphans, prisoners, and the sick and needy of every kind, is as essential to [the Catholic Church] as the ministry of the sacraments and preaching of the Gospel. The Church cannot neglect the service of charity any more than she can neglect the Sacraments and the Word.” Or as Cardinal James Hickey, former Archbishop of Washington, once commented on the role of Catholic educators: “We do not educate our students because they are Catholic; we educate them because we are Catholic.” Thus, Catholic individuals and organizations consistently work to create a more just community by serving any and all neighbors in need.
4. Catholic Church teachings also uphold the firm conviction that sexual union should be reserved to married couples who are open to the creation of life; thus, artificial interference with the creation of life, including through abortion, sterilization, and contraceptives, is contrary to Catholic doctrine.
3

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 4 of 54 PageID #: 4
5. Defendants have promulgated various rules (collectively, “the U.S. Government Mandate”) that force Plaintiffs to violate their sincerely held religious beliefs. These rules, first proposed on July 19, 2010, require Plaintiffs and other Catholic and religious organizations to provide, pay for, and/or facilitate access to abortion-inducing products, sterilization, and contraception, in violation of their sincerely held religious beliefs. In response to the intense public criticism that the Government’s original proposal provoked, including by some of the current Administration’s most ardent supporters, the Government proposed changes to the rules that, it asserted, were intended to eliminate the substantial burden that the Mandate imposed on religious exercise. In fact, however, these changes made that burden worse by significantly increasing the number of religious organizations subject to the U.S. Government Mandate, and by driving a wedge between religious organizations, such as Plaintiff Archdiocese, and their equally religious charitable arms, such as Plaintiff Catholic Charities. In particular, contrary to its initial interpretation, the Government now asserts that the U.S. Government Mandate prohibits the Archdiocese from ensuring that its religious affiliates provide health insurance consistent with Catholic doctrine.
6. In its final form, the U.S. Government Mandate contains three basic components: 7. First, it requires employer group health plans to cover, without cost-sharing requirements, all “FDA-approved contraceptive methods and contraceptive counseling”—a term that includes abortion-inducing products, contraception, sterilization, and related counseling and education. 8. Second, the Mandate creates a narrow exemption for certain “religious employers,” defined to include only organizations that are “organized and operate[] as . . . nonprofit entit[ies] and [are] referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal
4

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 5 of 54 PageID #: 5
Revenue Code of 1986, as amended.” The referenced Code section does not, nor is it intended to, address religious liberty. Instead, it is a paperwork-reduction provision that addresses whether and when tax-exempt nonprofit entities must file an annual informational tax return, known as a Form 990. As the Government has repeatedly affirmed, this exemption is intended to protect only “the unique relationship between a house of worship and its employees in ministerial positions.” 78 Fed. Reg. 8456, 8461 (Feb. 6, 2013). Consequently, the only organizations that qualify for the exemption are “churches, synagogues, mosques, and other houses of worship, and religious orders.” Id. This is the narrowest “conscience exemption” ever adopted in federal law. It grants the Government broad discretion to sit in judgment of which groups qualify as “religious employers,” thus favoring certain religious organizations and denominations over others and entangling the Government in matters of religious faith and practice.
9. Third, the U.S. Government Mandate creates a second class of religious entities that, in the Government’s view, are not sufficiently “religious” to qualify for the “religious employer” exemption. These religious entities, deemed “eligible organizations,” are subject to a so-called “accommodation” that is intended to eliminate the burden that the Mandate imposes on their religious beliefs. The “accommodation,” however, is illusory: it continues to require “eligible organizations” to provide, pay for, and/or facilitate access to the objectionable products and services for their employees.
10. In particular, Plaintiff Catholic Charities does not qualify under the Government’s narrow definition of “religious employer,” even though it is a religious organization under any reasonable definition of the term. Instead, it is an “eligible organization” subject to the so-called “accommodation.” But notwithstanding the “accommodation,” Catholic Charities is required to
5

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 6 of 54 PageID #: 6
contract with a third-party administrator, which, as a direct result, is required to provide or procure “free” abortion-inducing products, contraception, sterilization, and related counseling for Plaintiff’s employees. Consequently, Catholic Charities’ actions trigger the provision of the “free” objectionable products and services. Catholic Charities cannot avoid facilitating the provision of the objectionable products and services—for example, by contracting with an insurance company that will not provide or procure the objectionable products and services or even dropping its health insurance plans altogether—without subjecting itself to crippling fines, other negative consequences, and/or lawsuits by individuals and governmental entities.
11. Catholic Charities, moreover, must facilitate the provision of the objectionable services in other ways that further exacerbate its religiously impermissible cooperation in the provision of the objectionable products and services. For example, in order to be eligible for the so-called “accommodation,” Catholic Charities must first find and identify a third-party administrator who is willing to provide the very coverage that Plaintiffs find objectionable, and Catholic Charities’ self-certification constitutes its “designation of the third-party administrator as plan administrator and claims administrator for contraceptive benefits.” 78 Fed. Reg. at 39,879 (emphases added). Catholic Charities’ actions, therefore, directly result in provision of the objectionable products and services to its employees, contrary to its sincerely held religious beliefs.
12. Plaintiff Archdiocese of St. Louis appears to qualify as a “religious employer,” and, as such, is eligible for the “religious employer” exemption. However, the Archdiocese operates a self-insurance plan that encompasses not only individuals directly employed by the Archdiocese itself, but, in addition, individuals employed by affiliated Catholic organizations, including Plaintiff Catholic Charities. Because Catholic Charities does not itself appear to
6

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 7 of 54 PageID #: 7
qualify as an exempt “religious employer,” the U.S. Government Mandate requires that the Archdiocese either (1) sponsor a plan that will provide, pay for, and/or facilitate the provision of the objectionable products and services to the employees of Catholic Charities and other organizations, or (2) no longer extend its plan to these organizations, subjecting them to massive fines if they do not contract with another insurance provider that will provide coverage.
13. This appears to be a reversal of the Government’s original interpretation of the Mandate. As originally understood, the exemption would have allowed Plaintiff Catholic Charities to remain on the Archdiocese’s plan, which, in turn, would have shielded it from the Mandate if the Archdiocese was exempt. See 77 Fed. Reg. 16,501, 16,502 (Mar. 21, 2012). The Government’s revised interpretation of the Mandate, as contained in the Final Rule, removes this protection and thereby increases the number of religious organizations subject to the Mandate. In so doing, the Mandate seeks to divide the Catholic Church, artificially separating its “houses of worship” from its ministries, directly contrary to Pope Emeritus Benedict XVI’s admonition that “[t]he Church cannot neglect the service of charity any more than she can neglect the Sacraments and the Word.”
14. The U.S. Government Mandate is irreconcilable with the First Amendment, RFRA, the Administrative Procedure Act (“APA”), and other laws. The Government has not demonstrated any compelling interest in forcing Plaintiffs to provide, pay for, and/or facilitate access to abortion-inducing products, sterilization, and contraception. Nor has the Government demonstrated that the U.S. Government Mandate is the least restrictive means of advancing any interest it has in increasing access to these products and services, which are already widely available and which the Government could make more widely available without conscripting Plaintiffs as conduits for the dissemination of products and services to which they so strongly
7

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 8 of 54 PageID #: 8
object. The Government, therefore, cannot justify its decision to force Plaintiffs to provide, pay for, and/or facilitate access to these products and services in violation of their sincerely held religious beliefs.
15. Accordingly, Plaintiffs seek a declaration that the U.S. Government Mandate cannot lawfully be applied to Plaintiffs, an injunction barring its enforcement, and an order vacating the Mandate. I. PRELIMINARY MATTERS
16. Plaintiff Archdiocese of St. Louis is a Missouri nonprofit corporation with its principal place of business in St. Louis, Missouri. The Archdiocese is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
17. Plaintiff Catholic Charities is a Missouri nonprofit corporation affiliated with the Archdiocese. Its principal place of business is in St. Louis, Missouri. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
18. Defendant Kathleen Sebelius is the Secretary of the U.S. Department of Health and Human Services (“HHS”). She is sued in her official capacity.
19. Defendant Thomas Perez is the Secretary of the U.S. Department of Labor. He is sued in his official capacity.
20. Defendant Jacob J. Lew is the Secretary of the U.S. Department of the Treasury. He is sued in his official capacity.
21. Defendant U.S. Department of Health and Human Services is an executive agency of the United States within the meaning of RFRA and the APA.
8

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 9 of 54 PageID #: 9
22. Defendant U.S. Department of Labor is an executive agency of the United States within the meaning of RFRA and the APA.
23. Defendant U.S. Department of the Treasury is an executive agency of the United States within the meaning of RFRA and the APA.
24. This is an action for declaratory and injunctive relief under 5 U.S.C. § 702, 28 U.S.C. §§ 2201, 2202, and 42 U.S.C. § 2000bb-1.
25. An actual, justiciable controversy currently exists between Plaintiffs and Defendants. Absent a declaration resolving this controversy and the validity of the U.S. Government Mandate, Plaintiffs will be required to provide, pay for, and/or facilitate access to objectionable products and services in contravention of their sincerely held religious beliefs, as described below.
26. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
27. This Court has subject-matter jurisdiction over this action under 28 U.S.C. §§ 1331, 1343(a)(4), and 1346(a)(2).
28. Venue is proper in this Court under 28 U.S.C. § 1391(e)(1). A. The Archdiocese 29. The Archdiocese encompasses over 180 parishes serving over 520,000 Catholics (or approximately 22 percent of the total population) in St. Louis and in Missouri’s Franklin, Jefferson, Lincoln, Perry, St. Charles, St. Francois, Ste. Genevieve, St. Louis, Warren, and Washington counties. The Archdiocese was incorporated in 2004 as a nonprofit corporation. The parishes of the Archdiocese and most of its 147 schools are affiliated but separatelyincorporated entities. The charitable work of the Archdiocese is also performed through a number of separate, affiliated corporations, including (among others) Catholic Charities.
9

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 10 of 54 PageID #: 10
30. Archbishop Robert J. Carlson, formerly the Bishop of Saginaw, has led the Archdiocese since 2009. Archbishop Carlson is assisted in his ministry by an auxiliary bishop, an auxiliary bishop-emeritus, and a staff of clergy, religious brothers and sisters, and lay people. The Archdiocesan Entities have over 5,600 benefits-eligible employees.
31. The Archdiocese carries out a tripartite spiritual, educational, and social service mission, reflecting the several dimensions of its ministry. The spiritual ministry of the Archdiocese is conducted largely through its parishes. Through the ministry of its priests, the Archdiocese ensures the regular availability of the sacraments to all Catholics living in or visiting the St. Louis area. It also provides numerous other opportunities for prayer, worship, and faith formation. In 2012, more than 700 adults and nearly 350 children received formation in the Catholic faith through parish-level and Archdiocesan classes, lectures, and retreats. Approximately 700 adults enter the Catholic Church each year through programs offered by the parishes of the Archdiocese. In addition to overseeing the sacramental life of its parishes, the Archdiocese coordinates Catholic campus ministries at three colleges and universities within the geographic area of the Archdiocese.
32. The Archdiocese conducts its educational mission through its schools. The first Catholic school opened in St. Louis in 1818. Today, there are 147 Catholic schools, which educate over 42,000 children, located within the Archdiocese. The Archdiocese and its parishes operate 122 of these schools—twelve high schools and 110 elementary schools—serving close to 30,000 students, and employing approximately 2,200 teachers and other school staff. Twentyfour additional Catholic schools are independent from, but located within, the Archdiocese and fall under the spiritual jurisdiction of Archbishop Carlson.
10

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 11 of 54 PageID #: 11
33. The Archdiocesan schools welcome students in all financial conditions, from all backgrounds, and of any or no faith. In order to make a Catholic education available to as many children as possible, the Archdiocese expends substantial funds in tuition assistance programs; it provided tens of millions of dollars in tuition assistance for the 2012-2013 school year. Eleven percent of the students in the Archdiocesan elementary schools and 13.2 percent of the students in the high schools are minorities.
34. The Catholic educational system has demonstrated a particular dedication to teaching the underserved. In one of Archbishop Joseph E. Ritter’s first acts upon arrival in St. Louis, he instructed all pastors in the Archdiocese to end racial segregation in the parochial schools. It would be almost another decade before the United States Supreme Court would follow suit for the nation’s public schools. Today, schools like Cardinal Ritter Prep High School and St. Frances Cabrini Academy Elementary School continue to exemplify the Catholic church’s dedication to teaching urban, minority, and non-Catholic youth. Cardinal Ritter, which has been committed to providing exemplary education to St. Louis’s urban youth since 1979, currently serves approximately 270 students, 100 percent of whom are minorities and over 80 percent of whom are not Catholic. St. Frances Cabrini, representing a consolidation of parishes and schools and attending to a large immigrant and refugee population in St. Louis, serves over 179 students, 79 percent of whom are minorities and 36 percent of whom are not Catholic. Schools like Cardinal Ritter College Prep High School and St. Frances Cabrini Academy Elementary School are no less an expression and outgrowth of genuine Catholic belief because they primarily serve non-Catholics. Indeed, quite the opposite: the Archdiocese sees these schools as a vital part of its mission to offer to every student, in every place, a safe, morally sound, and academically rigorous education.
11

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 12 of 54 PageID #: 12
35. The schools of the Archdiocese offer a unique educational experience. As Cardinal Donald W. Wuerl has said about Catholic education, “We educate people not just for exams, but for life eternal. We educate the whole person: mind, body, and spirit.” To that end, the Archdiocesan schools have established priorities that make them stand out from other educational institutions. Students are taught faith—not just the basics of Christianity, but how to have a relationship with God that will remain with them after they leave their Catholic schools. Service, the giving of one’s time and effort to help others, is taught as both a requirement of true faith and good citizenship. Finally, high academic standards help each student reach his or her potential. Nationally, over 99 percent of students in Catholic high schools graduate.
36. The success of the Archdiocese’s approach to education is demonstrated by Rosati-Kain High School and St. Margaret of Scotland Elementary School. Rosati-Kain High School is a college preparatory school for young women who want to be challenged and supported in their faith while acquiring the knowledge and skills necessary to become their best selves and contributing in the spirit of Jesus Christ to a changing, multi-cultural world community. In 2013, the school has 362 students from 85 parishes. St. Margaret of Scotland Elementary School is a Catholic grade school committed to providing an outstanding learning environment for children, pre-kindergarten through eighth grade, in which children are challenged to meet their academic potential and recognize their giftedness in body, mind, and spirit. St. Margaret has over 386 students, of which 37 percent are non-Catholic, and 26 percent are minorities. St. Margaret students consistently score higher than the national and Archdiocesan average on standardized tests in Reading, Language Arts, Math, Science, and Social Studies. St. Margaret is a Blue Ribbon school.
12

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 13 of 54 PageID #: 13
37. Much of the social service work of the Archdiocese is performed through its parishes, which are separate corporations affiliated with the Archdiocese. The parishes that comprise the Archdiocese maintain their own charitable efforts, serving the needs of their communities with programs including employment and job training, adopt-a-family programs at Christmas, meals served to the homeless, and visits to nursing homes. The Archdiocese oversees all of the social service work undertaken by its parishes. Neither the Archdiocese nor its parishes keeps a tally of persons served through these outreach programs, nor do they request to know the religious affiliation of those served. The Archdiocese—like the entire Catholic Church—is committed to serving anyone in need, regardless of religion.
38. The Archdiocese operates a self-insured health plan. That is, the Archdiocese does not contract with a separate insurance company that provides health care coverage to its employees. Instead, the Archdiocese itself functions as the insurance company underwriting its employees’ medical costs. The Archdiocese purchases stop-loss coverage from a commercial insurance provider for its plan. Plaintiff Catholic Charities also offers coverage through the Archdiocese’s plan.
39. Consistent with Church teachings, this plan does not cover abortion-inducing products, contraception, or sterilization. In limited circumstances, the Archdiocese’s health plan administrator can override the exclusion of certain products commonly used as contraceptives if a physician certifies that they were prescribed with the intent of treating certain medical conditions, not with the intent to prevent pregnancy.
40. The Archdiocese’s self-insured health plan does not meet the Affordable Care Act’s definition of a “grandfathered” plan because, since March 23, 2010, the Archdiocese has terminated one of its two plan options, replacing it with an option offering a reduced level of
13

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 14 of 54 PageID #: 14
benefits at a reduced premium. Further, the Archdiocese has not included and does not include a statement in plan materials provided to participants or beneficiaries informing them that it believes its plan is a grandfathered health plan within the meaning of section 1251 of the Affordable Care Act. See, e.g., 26 C.F.R. § 54.9815-1251T(a)(2)(i).
41. The plan year for the Archdiocese (and the organizations it insures) begins on July 1.
B. Catholic Charities 42. Catholic Charities, the largest non-governmental social service provider in the region, provided services to over 157,000 people in 2012, 76 percent of whom live below the poverty line. Its purpose is to carry out the mandates of the Gospel and the social teaching of the Church through works of Christian charity, service, and social justice by providing competent and caring social services, special assistance to those in great need, and programs of community outreach and advocacy using the skills and talents of professional staff and volunteers. Catholic Charities pursues these goals through its own programs and through partnerships with parishes, community groups, and governmental agencies. 43. Catholic Charities is comprised of eight agencies offering more than one hundred programs, providing a panoply of services that include financial assistance, dental and medical care, pro bono legal aid, adult education, emergency shelters, care for the developmentally disabled, English as a Second Language courses, and many others. 44. For example, St. Patrick Center is one of the programs operated by Catholic Charities. It is the largest provider of homeless services in Missouri, with more than 20 housing, employment, and health programs, assisting nearly 9,000 people annually. The center helps individuals and families achieve permanent, positive change in their lives through safe and affordable housing, sound mental and physical health, and employment and financial stability.
14

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 15 of 54 PageID #: 15
45. Queen of Peace Center, another of Catholic Charities’ flagship programs, provides services for women and their children who experience violence, substance abuse, or homelessness. The program served 2,073 women and children in 2012. Its services include trauma counseling, housing, transportation, and childcare. Both residential and outpatient services are offered at four sites through fourteen programs.
46. Catholic Charities is a corporation affiliated with the Archdiocese. 47. Catholic Charities serves people in need without regard to their religion. It does not ask whether people whom it serves are Catholic and, therefore, it does not know whether they are Catholic. 48. Catholic Charities has nearly 1600 employees. While Catholic Charities asks its employees to assent to Catholic teachings, it does not inquire about the religious commitments of its applicants for employment, and, as a result, it does not know how many of its employees are Catholic. 49. Catholic Charities does not appear to qualify as an entity described in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. Accordingly, Catholic Charities does not qualify as a “religious employer” under the exemption to the U.S. Government Mandate. 50. Catholic Charities employees are offered health insurance through the Archdiocese’s health plan. II. STATUTORY AND REGULATORY BACKGROUND A. Statutory Background 51. In March 2010, Congress enacted the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010), and the Health Care and Education Reconciliation Act, Pub. L. No. 111-152, 124 Stat. 1029 (2010) (collectively, the “Affordable Care Act” or the “Act”). The Affordable Care Act established many new requirements for “group health plan[s],”
15

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 16 of 54 PageID #: 16
broadly defined as “employee welfare benefit plan[s]” within the meaning of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1002(1), that “provide[] medical care . . . to employees or their dependents.” 42 U.S.C. § 300gg-91(a)(1).
52. As relevant here, the Act requires an employer’s group health plan to cover certain women’s “preventive care.” Specifically, it indicates that “[a] group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum[,] provide coverage for and shall not impose any cost sharing requirements for . . . with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.” 42 U.S.C. § 300gg-13(a)(4). Because the Act prohibits “cost sharing requirements,” the health plan must pay for the full costs of these “preventive care” services without any deductible or co-payment.
53. “[T]he Affordable Care Act preserves the ability of individuals to retain coverage under a group health plan or health insurance coverage in which the individual was enrolled on March 23, 2010.” 75 Fed. Reg. 41,726, 41,731 (July 19, 2010); 42 U.S.C. § 18011. These socalled “grandfathered health plans do not have to meet the requirements” of the U.S. Government Mandate. 75 Fed. Reg. at 41,731. HHS estimates that “98 million individuals will be enrolled in grandfathered group health plans in 2013.” Id. at 41,732.
54. Federal law provides several mechanisms to enforce the requirements of the Act, including the U.S. Government Mandate. For example:
a. Under the Internal Revenue Code, certain employers who fail to offer “full-time employees (and their dependents) the opportunity to enroll in minimum essential coverage under an eligible employer-sponsored plan” will be exposed to
16

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 17 of 54 PageID #: 17
significant annual fines of $2,000 per full-time employee. See 26 U.S.C. § 4980H(a), (c)(1). b. Under the Internal Revenue Code, group health plans that fail to provide certain required coverage may be subject to a penalty of $100 a day per affected beneficiary. See 26 U.S.C. § 4980D(b); see also Jennifer Staman & Jon Shimabukuro, Cong. Research Serv., RL 7-5700, Enforcement of the Preventative Health Care Services Requirements of the Patient Protection and Affordable Care Act (2012) (asserting that this applies to employers who violate the “preventive care” provision of the Affordable Care Act). c. Under ERISA, plan participants can bring civil actions against insurers for unpaid benefits. 29 U.S.C. § 1132(a)(1)(B); see also Cong. Research Serv., RL 75700. d. Similarly, the Secretary of Labor may bring an enforcement action against group health plans of employers that violate the U.S. Government Mandate, as incorporated by ERISA. See 29 U.S.C. § 1132(b)(3); see also Cong. Research Serv., RL 7-5700 (asserting that these penalties can apply to employers and insurers who violate the “preventive care” provision of the Affordable Care Act). 55. Several of the Act’s provisions, along with other federal statutes, reflect a clear congressional intent that the executive agency charged with identifying the “preventive care” required by § 300gg-13(a)(4) should exclude all abortion-related services. 56. For example, the Weldon Amendment, which has been included in every HHS and Department of Labor appropriations bill since 2004, prohibits certain agencies from discriminating against an institution based on that institution’s refusal to provide abortion-related
17

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 18 of 54 PageID #: 18
services. Specifically, it states that “[n]one of the funds made available in this Act [to the Department of Labor and the Department of 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.” Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(1), 125 Stat. 786, 1111 (2011). The term “health care entity” is defined to include “an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan.” Id. § 507(d)(2) (emphasis added).
57. The legislative history of the Act also demonstrates a clear congressional intent to prohibit the executive branch from requiring group health plans to provide abortion-related services. For example, the House of Representatives originally passed a bill that included an amendment by Congressman Bart Stupak prohibiting the use of federal funds for abortion services. See H.R. 3962, 111th Cong. § 265 (Nov. 7, 2009). The Senate version, however, lacked that restriction. See S. Amend. No. 2786 to H.R. 3590, 111th Cong. (Dec. 23, 2009). To avoid a filibuster in the Senate, congressional proponents of the Act engaged in a procedure known as “budget reconciliation” that required the House to adopt the Senate version of the bill largely in its entirety. Congressman Stupak and other pro-life House members, however, indicated that they would refuse to vote for the Senate version because it failed adequately to prohibit federal funding of abortion. In an attempt to address these concerns, President Barack Obama issued an executive order providing that no executive agency would authorize the federal funding of abortion services. See Exec. Order No. 13535, 75 Fed. Reg. 15,599 (Mar. 24, 2010).
18

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 19 of 54 PageID #: 19
58. The Act, therefore, was passed on the central premise that all agencies would uphold and follow “longstanding Federal laws to protect conscience” and to prohibit federal funding of abortion. Id. That executive order was consistent with a 2009 speech that President Obama gave at the University of Notre Dame, in which he indicated that his Administration would honor the consciences of those who disagree with abortion, and draft sensible conscience clauses.
B. Regulatory Background – Defining “Preventive Care” and the Narrow Exemption
59. In a span of less than two years, Defendants promulgated the U.S. Government Mandate, subverting the Act’s clear purpose to protect the rights of conscience. The Mandate immediately prompted intense criticism and controversy, in response to which the Government has undertaken various revisions. None of these revisions, however, alleviates the burden that the Mandate imposes on Plaintiffs’ religious beliefs. To the contrary, these revisions have resulted in a final rule that is significantly worse than the original one.
(1) The Original Mandate 60. On July 19, 2010, Defendants issued interim final rules addressing the statutory requirement that group health plans provide coverage for women’s “preventive care.” 75 Fed. Reg. 41,726 (citing 42 U.S.C. § 300gg-13(a)(4)). Initially, the rules did not define “preventive care,” instead noting that “[t]he Department of HHS is developing these guidelines and expects to issue them no later than August 1, 2011.” Id. at 41,731. 61. To develop the definition of “preventive care,” HHS outsourced its deliberations to the Institute of Medicine (“IOM”), a non-governmental “independent” organization. The IOM in turn created a “Committee on Preventive Services for Women,” composed of 16 members who were selected in secret without any public input. At least eight of the Committee members
19

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 20 of 54 PageID #: 20
had founded, chaired, or worked with “pro-choice” advocacy groups (including five different Planned Parenthood entities) that have well-known political and ideological views, including strong animus toward Catholic teachings on abortion and contraception.
62. Unsurprisingly, the IOM Committee invited presentations from several “prochoice” groups, such as Planned Parenthood and the Guttmacher Institute (named for a former president of Planned Parenthood), without inviting any input from groups that oppose government-mandated coverage for abortion, contraception, and sterilization. Instead, opponents were relegated to lining up for brief open-microphone sessions at the close of each meeting.
63. At the close of this process, on July 19, 2011, the IOM issued a final report recommending that “preventive care” for women be defined to include “the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for [all] women with reproductive capacity.” IOM, Clinical Preventive Services for Women: Closing the Gaps 164-65 (2011), available at http://www.iom.edu/Reports/ 2011/Clinical-Preventive-Services-for-Women-Closing-the-Gaps.aspx.
64. The extreme bias of the IOM process spurred one member of the Committee, Dr. Anthony Lo Sasso, to dissent from the final recommendation, writing: “[T]he committee process for evaluation of the evidence lacked transparency and was largely subject to the preferences of the committee’s composition. Troublingly, the process tended to result in a mix of objective and subjective determinations filtered through a lens of advocacy.” Id. at 232.
65. At a press briefing the next day, the chair of the IOM Committee fielded a question from a representative of the U.S. Conference of Catholic Bishops regarding the “coercive dynamic” of the Mandate, asking whether the Committee considered the “conscience rights” of those who would be forced to pay for coverage that they found objectionable on moral
20

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 21 of 54 PageID #: 21
and religious grounds. In response, the chair illustrated her cavalier attitude toward the religiousliberty issue, stating bluntly: “[W]e did not take into account individual personal feelings.” See Linda Rosenstock, Chair, Inst. of Med. Comm. on Preventive Servs. for Women, Press Briefing (July 20, 2011), available at http://www.iom.edu/Reports/2011/Clinical-Preventive-Services-forWomen-Closing-the-Gaps.aspx. The chair later expressed concern to Congress about considering religious objections to the Mandate because to do so would risk a “slippery slope” that could occur by “opening up that door” to religious liberty. See Executive Overreach: The HHS Mandate Versus Religious Liberty: Hearing Before the H. Comm. On the Judiciary, 112th Cong. (2012) (testimony of Linda Rosenstock, Chair, Inst. of Med. Comm. on Preventive Servs. for Women).
66. Less than two weeks after the IOM report, without pausing for notice and comment, HHS issued a press release on August 1, 2011, announcing that it would adopt the IOM’s definition of “preventive care,” including all “FDA-approved contraception methods and contraceptive counseling.” See U.S. Dep’t of Health & Human Servs., “Affordable Care Act Ensures Women Receive Preventive Services at No Additional Cost,” available at http://www.hhs.gov/news/press/2011pres/08/20110801b.html. HHS ignored the religious, moral, and ethical dimensions of the decision and the ideological bias of the IOM Committee and stated that it had “relied on independent physicians, nurses, scientists, and other experts” to reach a definition that was “based on scientific evidence.” Under the final “scientific” definition, the category of mandatory “preventive care” extends to “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” U.S. Dep’t of Health & Human Servs., “Women’s
21

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 22 of 54 PageID #: 22
Preventive Services: Required Health Plan Coverage Guidelines,” http://www.hrsa.gov/womensguidelines/.
67. The Government’s definition of mandatory “preventive care” also includes abortion-inducing products. For example, the FDA has approved “emergency contraceptives” such as the morning-after pill (otherwise known as Plan B), which can prevent an embryo from implanting in the womb, and Ulipristal (otherwise known as “HRP 2000” or “ella”), which likewise can induce abortions.
68. Shortly after announcing its definition of “preventive care,” the Government proposed a narrow exemption from the Mandate for a small category of “religious employers” that met all of the following four criteria: “(1) The inculcation of religious values is the purpose of the organization”; “2) The organization primarily employs persons who share the religious tenets of the organization”; “3) The organization serves primarily persons who share the religious tenets of the organization”; and “(4) The organization is a 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 46,621, 46,626 (Aug. 3, 2011) (codified at 45 C.F.R. § 147.130(a)(iv)(B)).
69. As the Government itself admitted, this narrow exemption was intended to protect only “the unique relationship between a house of worship and its employees in ministerial positions.” Id. at 46,623. It provided no protection for most religious universities, elementary and secondary schools, hospitals, and charitable organizations.
70. The sweeping nature of the Mandate was subject to widespread and withering criticism. Religious leaders from across the country protested that they should not be punished or considered less religious simply because they chose to live out their faith by serving needy
22

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 23 of 54 PageID #: 23
members of the community who might not share their beliefs. As Cardinal Wuerl later wrote, “Never before has the government contested that institutions like Archbishop Carroll High School or Catholic University are religious. Who would? But HHS’s conception of what constitutes the practice of religion is so narrow that even Mother Teresa would not have qualified.”
71. Despite such pleas, the Government at first refused to reconsider its position. Instead, the Government “finalize[d], without change,” the narrow exemption as originally proposed. 77 Fed. Reg. at 8,725, 8,729 (Feb. 15, 2012). At the same time, the Government announced that it would offer “a one-year safe harbor from enforcement” for religious organizations that remained subject to the Mandate. Id. at 8,728. As noted by Timothy Cardinal Dolan, the “safe harbor” effectively gave religious groups “a year to figure out how to violate our consciences.”
72. A month later, under continuing public pressure, the Government issued an Advance Notice of Proposed Rulemaking (“ANPRM”) that, it claimed, set out a solution to the religious-liberty controversy created by the Mandate. 77 Fed. Reg. 16,501. The ANPRM did not revoke the Mandate, and in fact reaffirmed the Government’s view at the time that the “religious employer” exemption would not be changed. Id. at 16,501-08. Instead, the ANPRM offered hypothetical “possible approaches” that would, in the Government’s view, somehow solve the religious-liberty problem without granting an exemption for objecting religious organizations. Id. at 16,507. As the U.S. Conference of Catholic Bishops soon recognized, however, any semblance of relief offered by the ANPRM was illusory. Although it was designed to “create an appearance of moderation and compromise, it [did] not actually offer any change in the Administration’s earlier stated positions on mandated contraceptive coverage.” See
23

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 24 of 54 PageID #: 24
Comments of the U.S. Conference of Catholic Bishops, at 3 (May 15, 2012), available at http://www.usccb.org/about/general-counsel/rulemaking/upload/comments-on-advance-noticeof-proposed-rulemaking-on-preventive-services-12-05-15.pdf.
(2) Plaintiffs’ First Lawsuit and the Government’s Promise of NonEnforcement
73. On May 21, 2012, Plaintiffs filed suit in the U.S. District Court for the Eastern District of Missouri seeking to enjoin the U.S. Government Mandate on the ground that, among other things, it violated their rights of religious conscience under RFRA and the First Amendment. See Archdiocese of St. Louis, et al. v. Sebelius, et al., Docket No. 4:12-cv-00924. In response to this and similar litigation, the Government promised that “the regulations [would] never be enforced in their present form” and that “the amendment process in progress . . . [would] ‘alter the very regulations’ at issue in [the] case.” Id., Defs.’ Resp. to Pls.’ Notice of Supp. Auth. [Dkt. # 35], at 6 (emphasis added).
74. According to the Government, “the forthcoming amendments [were] intended to address the very issue that plaintiffs raise here by establishing alternative means of providing contraceptive coverage without cost-sharing while accommodating religious organizations’ religious objections to covering contraceptive services.” Mem. of Law in Support of Defs.’ Mot. to Dismiss [Dkt. # 17], at 15. Indeed, the Government assured this Court, “[o]nce defendants complete the rulemaking outlined in the ANPRM plaintiffs’ challenge to the current regulations likely will be moot.” Id. at 17.
75. In response to the Government’s motion to dismiss, Plaintiffs made clear that even if the ANPRM were enacted, it would still require them to provide, pay for, and/or facilitate the provision of objectionable insurance coverage for their employees and, therefore, would not relieve the burden on their religious exercise. Indeed, Plaintiffs submitted an uncontested factual
24

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 25 of 54 PageID #: 25
declaration expressly so stating. See Pls. Opp. to Defs.’ Mot. To Dismiss, Ex. A [Dkt. #26-1], Declaration of the Archdiocese of Saint Louis and Catholic Charities, at 9 (noting that “[u]nder the ANPRM’s proposed accommodations, the Archdiocesan Plaintiffs [would] . . . facilitate the provision of abortifacients, sterilization, and contraception by providing both the insurer relationship and the employment through which their employees [would] have access to health care coverage and, thus, coverage for the services at issue”).
76. Confronted with this undisputed declaration, the Government assured the Court that “the ANPRM is a mere starting point, and plaintiffs have ample opportunity to express their concerns and help shape the forthcoming amendments,” elaborating: “The entire purpose of amending the preventive services coverage regulations is to accommodate religious objections such as those raised by plaintiffs. But plaintiffs simply assume that no such amendment could ever alleviate the need for judicial review. That assumption is baseless, and prejudges defendants’ ongoing rulemaking process.” Defs.’ Reply Mem. in Support of Mot. to Dismiss [Dkt. # 28], at 10 & 11 n.10.
77. Based on the Government’s representations, the district court granted the Government’s motion to dismiss for lack of ripeness and standing because “Defendants [had] stated they [would] issue a new rule specifically to accommodate Plaintiffs’ religious objections.” Memorandum and Order [Dkt. # 42], at 13. Importantly, the Court noted that the Government was “presumed to act in good faith” and had made a “binding commitment” not to enforce the Mandate as it then existed. Id.
(3) The Government’s Final Offer and the Empty “Accommodation” 78. On February 1, 2013, the Government issued a Notice of Proposed Rulemaking (“NPRM”), setting forth in further detail its proposal to “accommodate” the rights of Plaintiffs
25

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 26 of 54 PageID #: 26
and other religious organizations. Contrary to the Government’s previous assurances, however, the NPRM adopted the proposals contained in the ANPRM. The NPRM, like the Government’s previous proposals, was once again met with strenuous opposition, including over 400,000 comments. For example, the U.S. Conference of Catholic Bishops stated that “the ‘accommodation’ still requires the objecting religious organization to fund or otherwise facilitate the morally objectionable coverage. Such organizations and their employees remain deprived of their right to live and work under a health plan consonant with their explicit religious beliefs and commitments.” Comments of U.S. Conference of Catholic Bishops, at 3 (Mar. 20, 2013), available at http://www.usccb.org/about/general-counsel/rulemaking/upload/2013-NPRMComments-3-20-final.pdf. Likewise, the Archdiocese of Washington noted that the NPRM’s proposed “accommodation” was nothing more than “an accounting maneuver” and did not redress the burden that the Mandate imposes on religious liberty and that, as a result, the Archdiocese had no choice but to “continue[] to strenuously oppose the Mandate, including the proposed changes.” Comments of Archdiocese of Washington, at 2 (Apr. 4, 2013), available at http://www.becketfund.org/wp-content/uploads/2013/04/Comments-4-4-13-Archdiocese-ofWashington.pdf.
79. Defendants apparently gave no consideration to these or other comments submitted in opposition to the NPRM’s proposed “accommodation.”
80. In fact, on April 8, 2013, the same day the notice-and-comment period ended, Defendant Sebelius indicated that the accommodation would be implemented, regardless of opposition. She 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
26

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 27 of 54 PageID #: 27
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.” The Forum at Harvard School of Public Health, A Conversation with Kathleen Sebelius, U.S. Secretary of Health and Human Services, Apr. 8, 2013, available at http://theforum.sph.harvard.edu/events/ conversation-kathleen-sebelius (Episode 9 at 2:25) (last visited July 12, 2013).
81. Unsurprisingly, therefore, on June 28, 2013, the Government issued a final rule that adopted substantially all of the NPRM’s proposal without significant change. See 78 Fed. Reg. 39,870 (July 2, 2013) (“Final Rule”).
82. The Final Rule makes three changes to the Mandate. As described below, none of these changes relieves the unlawful burdens placed on Plaintiffs and other religious organizations. Indeed, one of them appears to significantly increase that burden by significantly increasing the number of religious organizations subject to the Mandate.
83. First, the Final Rule makes what the Government concedes to be a nonsubstantive, cosmetic change to the definition of “religious employer.” In particular, it eliminates the first three prongs of that definition, such that, under the new definition, an exempt “religious employer” is simply “an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 78 Fed. Reg. at 39,896 (codified at 45 C.F.R. § 147.131(a)). As the Government has admitted, this new definition does “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. at 8,461. Instead, it continues to “restrict[]the exemption primarily to group health plans established or maintained by churches, synagogues, mosques, and other houses of worship, and
27

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 28 of 54 PageID #: 28
religious orders.” Id. In this respect, the Final Rule mirrors the intended scope of the original “religious employer” exemption, which focused on “the unique relationship between a house of worship and its employees in ministerial positions.” 76 Fed. Reg. at 46,623. Religious organizations that have a broader mission are still not, in the Government’s view, “religious employers.”
84. The “religious employer” exemption, moreover, creates an official, Governmentfavored category of religious groups that are exempt from the Mandate, while denying this favorable treatment to all other religious groups. The exemption applies only to those groups that are “refer[red] to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code.” This category, however, includes only (i) “churches, their integrated auxiliaries, and conventions or associations of churches,” and (iii) “the exclusively religious activities of any religious order.” The IRS, moreover, has adopted an intrusive 14-factor test to determine whether a group meets these qualifications. See Found. of Human Understanding v. United States, 88 Fed. Cl. 203, 220 (2009). Among these 14 factors is whether the group has “ a recognized creed and form of worship,” “a definite and distinct ecclesiastical government,” “a formal code of doctrine and discipline,” “a distinct religious history,” “an organization of ordained ministers” “a literature of its own,” “established places of worship,” “regular congregations, “regular religious services,” “Sunday schools for the religious instruction of the young,” and “schools for the preparation of its ministers.” Id. Not only do these factors favor some religious denominations and organizations at the expense of others, but they also require the Government to make intrusive judgments regarding religious beliefs, practices, and organizational features to determine which entities fall into the favored category.
28

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 29 of 54 PageID #: 29
85. Second, the Final Rule establishes an illusory “accommodation” for certain nonexempt objecting religious entities that qualify as “eligible organizations.” To qualify as an “eligible organization,” a religious entity must (1) “oppose[] providing coverage for some or all of [the] contraceptive services,” (2) be “organized and operate[] as a non-profit entity,” (3) “hold[] itself out as a religious organization,” and (4) self-certify that it meets the first three criteria, and provide a copy of the self-certification either to its insurance company or, if the religious organization is self-insured, to its third-party administrator. 26 C.F.R. § 54.98152713A(a). The provision of this self-certification then automatically requires the insurance issuer or third-party administrator to provide or arrange “payments for contraceptive services” for the organization’s employees, without imposing any “cost-sharing requirements (such as a copayment, coinsurance, or a deductible).” Id. § 54.9816-2713A(b)(2), (c)(2). The objectionable coverage, moreover, is directly tied to the organization’s health plan, lasting only as long as the employee remains on that plan. See 29 C.F.R. § 2590.715-2713; 45 C.F.R. § 147.131(c)(2)(i)(B). In addition, self-insured organizations are prohibited from “directly or indirectly, seek[ing] to influence the[ir] third-party administrator’s decision” to provide or procure contraceptive services. 26 C.F.R. § 54.9815-2713.
86. This so-called “accommodation” fails to relieve the burden on religious organizations. Under the original version of the Mandate, a non-exempt religious organization’s decision to offer a group health plan resulted in the provision of coverage for abortion-inducing products, contraception, sterilization, and related counseling. Under the Final Rule, a nonexempt religious organization’s decision to offer a group health plan, coupled with a selfcertification, still results in the provision of coverage—now in the form of “payments”—for abortion-inducing products, contraception, sterilization, and related counseling. Id. § 54.9816-
29

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 30 of 54 PageID #: 30
2713A(b)-(c). In both scenarios, Plaintiffs’ actions trigger the provision of “free” contraceptive coverage to Catholic Charities’ employees in a manner contrary to their beliefs. The provision of the objectionable products and services is directly tied to Plaintiffs’ insurance policies, as the objectionable “payments” are available only so long as an employee is on the organizations’ health plan. See 29 C.F.R. § 2590.715-2713A (for self-insured employers, the third-party administrator “will provide or arrange separate payments for contraceptive services . . . for so long as [employees] are enrolled in [their] group health plan”); 45 C.F.R. § 147.131(c)(2)(i)(B) (for employers that offer insured plans, the insurance issuer must “[p]rovide separate payments for any contraceptive services . . . for plan participants and beneficiaries for so long as they remain enrolled in the plan”). For self-insured organizations, moreover, the self-certification constitutes the religious organization’s “designation of the third-party administrator(s) as plan administrator and claims administrator for contraceptive benefits.” 78 Fed. Reg. at 39,879 (emphasis added). Thus, employer health plans offered by non-exempt religious organizations are the vehicle by which “free” abortion-inducing products, contraception, sterilization, and related counseling are delivered to the organizations’ employees.
87. Needless to say, this shell game does not address Plaintiffs’ fundamental religious objection to improperly facilitating access to the objectionable products and services. As before, Plaintiffs are coerced, through threats of crippling fines and other pressure, into facilitating access to contraception, abortion-inducing products, sterilization, and related counseling for their employees, contrary to their sincerely held religious beliefs.
88. The so-called “accommodation,” moreover, requires Plaintiffs to cooperate in the provision of objectionable coverage in other ways as well. For example, in order to be eligible for the so-called “accommodation,” a non-exempt organization like Plaintiff Catholic Charities
30

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 31 of 54 PageID #: 31
must provide a “certification” to its insurance provider or third-party administrator setting forth its religious objections to the Mandate. For self-insured organizations, like Plaintiffs, before Plaintiff Catholic Charities can even provide the certification, Plaintiffs must first find and identify a third-party administrator who is willing to provide the very coverage Plaintiffs find objectionable. Once the “certification” is provided, it automatically triggers an obligation on the part of the insurance provider or third-party administrator to provide or procure the objectionable products and services for Plaintiff Catholic Charities’ employees. Moreover, it is only through Plaintiff Archdiocese’s contractual relationship with the third-party administrator that any employee of the “eligible” Plaintiff (Catholic Charities) will receive the objectionable coverage.
89. The U.S. Government Mandate also requires Plaintiffs to subsidize the objectionable products and services.
90. For organizations that procure insurance through a separate insurance provider, the Government asserts that the cost of the objectionable products and services will be “cost neutral” and, therefore, that the religious organizations will not actually be paying for them.
91. The Government’s “cost-neutral” assertion, however, is implausible. It rests on the assumption that cost “savings” from “fewer childbirths” will be at least as large as the direct costs of paying for contraceptive products and services and the costs of administering individual policies. 78 Fed. Reg. at 8,463. Some employees, however, will choose not to use contraception notwithstanding the Mandate. Others would use contraception regardless of whether it is being paid for by an insurance company. And yet others will shift from less expensive to more expensive products once coverage is mandated and cost-sharing is prohibited. Consequently, there can be no assurance that cost “savings” from “fewer childbirths” will offset the cost of providing contraceptive services.
31

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 32 of 54 PageID #: 32
92. More importantly, even if the Government’s “cost-neutral” assertion were true, it is irrelevant. The so-called “accommodation” is nothing more than a shell game. Premiums previously paid by the objecting employers to cover, for example, “childbirths,” will now be redirected to pay for contraceptive products and services. Thus, the objecting employer is still required to pay for the objectionable products and services.
93. For self-insured organizations, the Government’s “cost-neutral” assumption appears to be similarly implausible. The Government asserts that third-party administrators required to provide or procure the objectionable products and services will be compensated by reductions in user fees that they otherwise would pay for participating in federally-facilitated health exchanges. See 78 Fed. Reg. 39,882. Such fee reductions are to be established through a highly regulated and bureaucratic process for evaluating, approving, and monitoring fees paid in compensation to third-party administrators. Such regulatory regimes, however, do not fully compensate the regulatory entities for the costs and risks incurred. As a result, few if any thirdparty administrators are likely to participate in this regime, and those that do are likely to increase fees charged to the self-insured organizations.
94. Either way, as with insured plans, self-insured organizations likewise will be required to subsidize contraceptive products and services notwithstanding the so-called “accommodation.”
95. For all of these reasons, the U.S. Government Mandate continues to require Plaintiffs to provide, pay for, and/or facilitate access to abortion-inducing products, contraception, sterilization, and related education and counseling, in violation of their sincerelyheld religious beliefs.
32

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 33 of 54 PageID #: 33
96. Third, the Government’s interpretation of the Final Rule appears to actually increase the number of religious organizations that are subject to the U.S. Government Mandate. Under the Government’s initial interpretation of the “religious employer” exemption, if a nonexempt religious organization “provided health coverage for its employees through” a plan offered by a separate, “affiliated” organization that was “exempt from the requirement to cover contraceptive services, then neither the [affiliated organization] nor the [nonexempt entity would be] required to offer contraceptive coverage to its employees.” 77 Fed. Reg. at 16,502.
97. For example, Plaintiff Archdiocese of St. Louis operates a self-insurance plan that covers not only the Archdiocese itself, but other affiliated Catholic organizations—including Plaintiff Catholic Charities. Under the original interpretation of the exemption, if the Archdiocese was an exempt “religious employer,” then Catholic Charities would have received the benefit of that exemption, regardless of whether it independently qualified as a “religious employer,” since it could have continued to participate in the Archdiocese’s exempt plan. Catholic Charities, therefore, could have benefitted from the Archdiocese’s exemption even if it, itself, could not meet the Government’s unprecedentedly narrow definition of “religious employer.”
98. The Final Rule eliminates this safeguard. Instead, it interprets the exemption to require “each employer” to “independently meet the definition of eligible organization or religious employer in order to take advantage of the accommodation or the religious employer exemption with respect to its employees and their covered dependents.” 78 Fed. Reg. at 39,886; see also 78 Fed. Reg. at 8467 (NPRM). Since Plaintiff Catholic Charities does not appear to meet the Government’s narrow definition of “religious employer,” it is now subject to the U.S. Government Mandate.
33

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 34 of 54 PageID #: 34
99. Moreover, since Plaintiff Catholic Charities is part of Plaintiff Archdiocese of St. Louis’s self-insurance plan, the Archdiocese is now required by the Mandate to do one of two things: sponsor a plan that will provide Catholic Charities’ employees with “free” contraception, abortion-inducing products, sterilization, and related counseling, or, alternatively, decline to extend its plan to these organizations, subjecting them to massive fines if they do not contract with another insurance provider that will provide the objectionable coverage.
100. The first option forces the Archdiocese to act contrary to its sincerely-held religious beliefs. The second option compels the Archdiocese to submit to the government’s interference with its structure and internal operations by accepting a construct that divides churches from their ministries.
101. In this respect, the Mandate seeks to divide the Catholic Church. The Church’s faith in action, carried out through its charitable and educational arms, is every bit as central to the Church’s religious mission as is the administration of the Sacraments. In the words of Pope Emeritus Benedict XVI, “[t]he Church cannot neglect the service of charity any more than she can neglect the Sacraments and the Word.” Yet the Mandate seeks to separate these consubstantial aspects of the Catholic faith, treating one as “religious” and the other as not. The Mandate therefore deeply intrudes into internal Church governance.
102. In sum, the Final Rule not only fails to alleviate the burden that the U.S. Government Mandate imposes on Plaintiffs’ religious beliefs; it in fact makes that burden significantly worse by increasing the number of religious organizations that are subject to the Mandate. The U.S. Government Mandate, therefore, requires Plaintiffs to act contrary to their sincerely held religious beliefs.
34

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 35 of 54 PageID #: 35
III. THE U.S. GOVERNMENT MANDATE IMPOSES A SUBSTANTIAL BURDEN ON PLAINTIFFS’ RELIGIOUS LIBERTY A. The U.S. Government Mandate Substantially Burdens Plaintiffs’ Religious Exercise 103. Responding to the U.S. Government Mandate, Archbishop Carlson has noted that
it is “an alarming and serious matter that strikes at our fundamental rights to religious freedom.” And indeed it is. Since the founding of this country, our law and society have recognized that individuals and institutions are entitled to freedom of conscience and religious practice. Absent a compelling reason, no government authority may compel any group or individual to act contrary to their religious beliefs. As noted by Thomas Jefferson, “[n]o provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of civil authority.”
104. The U.S. Government Mandate violates Plaintiffs’ rights of conscience by forcing them to participate in an employer-based scheme to provide insurance coverage to which they strenuously object on moral and religious grounds.
105. It is a core tenet of Plaintiffs’ religion that abortion, contraception, and sterilization are serious moral wrongs.
106. Plaintiffs’ Catholic beliefs therefore prohibit them from providing, paying for, and/or facilitating access to abortion-inducing products, contraception, or sterilization, including by contracting with an insurance company or third-party administrator that will, as a result, provide or procure the objectionable products and services to Plaintiffs’ employees. Likewise, Plaintiffs object to being forced to take other actions that facilitate access to the objectionable products and services, including the Mandate’s self-certification requirement.
107. Plaintiffs’ beliefs are deeply and sincerely held.
35

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 36 of 54 PageID #: 36
108. The U.S. Government Mandate, therefore, requires Plaintiffs to do precisely what their sincerely held religious beliefs prohibit—provide, pay for, and/or facilitate access to objectionable products and services or else incur crippling sanctions or other negative consequences.
109. The U.S. Government Mandate, therefore, imposes a substantial burden on plaintiffs’ religious beliefs.
110. The Mandate’s exemption for “religious employers” does not alleviate the burden. 111. The “religious employer” exemption does not apply to Plaintiff Catholic Charities. 112. Although Plaintiff Archdiocese is a “religious employer,” the Mandate still requires it either to (1) sponsor a plan that will provide Plaintiff Catholic Charities and other affiliated Catholic organizations with access to the objectionable products and services, or (2) no longer extend its plan to these organizations, subjecting them to massive fines if they do not contract with another insurance provider that will provide the objectionable coverage. 113. The first option forces the Archdiocese to act contrary to its sincerely-held religious beliefs. 114. The second option compels the Archdiocese to submit to the government’s interference with its structure and internal operations by accepting a construct that divides churches from their ministries. 115. The so-called “accommodation” does not alleviate the burden on Plaintiffs’ sincerely held religious beliefs. 116. Notwithstanding the so-called “accommodation,” Plaintiffs are still required to provide, pay for, and/or facilitate access to the objectionable products and services.
36

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 37 of 54 PageID #: 37
117. Plaintiffs’ Catholic beliefs do not simply prohibit them from using or directly paying for the objectionable coverage. Their beliefs also prohibit them from facilitating access to the objectionable products and services in the manner required by the Mandate.
118. Finally, Plaintiffs cannot avoid the U.S. Government Mandate without incurring crippling fines or other negative consequences. If they eliminate their employee health plans, for those Plaintiffs with more than 50 employees, they are subject to annual fines of $2,000 per fulltime employee. If they keep their health plans but refuse to provide or facilitate the objectionable coverage, they are subject to daily fines of $100 a day per affected beneficiary.
119. Potential liability for significant fines and uncertainty regarding Plaintiffs’ ability to offer and provide health benefits undermines Plaintiffs’ ability to retain and recruit employees. Were Plaintiffs to stop offering health benefits, they would be at a competitive disadvantage to institutions who do not have religious objections to the Mandate.
120. The fines and other negative consequences therefore coerce Plaintiffs into violating their religious beliefs.
121. In short, while the President claims to have “found a solution that works for everyone” and that ensures that “religious liberty will be protected,” his promised “accommodation” does neither. Unless and until this issue is definitively resolved, the U.S. Government Mandate does and will continue to impose a substantial burden on Plaintiffs’ religious beliefs.
B. The U.S. Government Mandate Is Not a Neutral Law of General Applicability
122. The U.S. Government Mandate is not a neutral law of general applicability. It offers multiple exemptions from its requirement that employer-based health plans include or facilitate coverage for abortion-inducing products, sterilization, contraception, and related
37

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 38 of 54 PageID #: 38
education and counseling. It was, moreover, implemented by and at the behest of individuals and organizations who disagree with Plaintiffs’ religious beliefs regarding abortion and contraception, and thus targets religious organizations for disfavored treatment.
123. For example, the Mandate exempts all “grandfathered” plans from its requirements, thus excluding tens of millions of people from the mandated coverage. As the government has admitted, “98 million individuals will be enrolled in grandfathered group health plans in 2013.” 75 Fed. Reg. at 41,732 (July 19, 2010). According to one district court last year, “191 million Americans belong to plans which may be grandfathered under the ACA.” Newland v. Sebelius, 881 F. Supp. 2d 1287, 1291 (D. Colo. 2012).
124. Similarly, small employers (i.e., those with fewer than 50 employees) are exempt from certain enforcement mechanisms to compel compliance with the Mandate. See 26 U.S.C. § 4980H(a) (exempting small employers from the assessable payment for failure to provide health coverage).
125. In addition, the Mandate exempts an arbitrary subset of religious organizations that qualify for tax-reporting exemptions under Section 6033 of the Internal Revenue Code.
126. The U.S. Government Mandate, moreover, was promulgated by Government officials, and supported by non-governmental organizations, who strongly oppose certain Catholic teachings and beliefs. For example, on October 5, 2011, Defendant Sebelius spoke at a fundraiser for NARAL Pro-Choice America. Defendant Sebelius has long supported abortion rights and criticized Catholic teachings and beliefs regarding abortion and contraception. NARAL Pro-Choice America is a pro-abortion organization that likewise opposes many Catholic teachings. At that fundraiser, Defendant Sebelius criticized individuals and entities whose beliefs differed from those held by her and the other attendees of the NARAL Pro-Choice
38

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 39 of 54 PageID #: 39
America 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.”
127. In addition, the Mandate was modeled on a California law that was motivated by discriminatory intent against religious groups that oppose contraception.
128. The IOM Committee that initially adopted the definition of “preventive care” was overwhelmingly stacked with individuals who similarly oppose many Catholic teachings, leading the lone dissenter on the Committee to lament that the Committee’s recommendation reflected the members’ “subjective determinations filtered through a lens of advocacy.” IOM, supra, at 232.
129. Consequently, Plaintiffs allege that the purpose of the U.S. Government Mandate, including the narrow exemption, is to discriminate against religious institutions and organizations that oppose abortion and contraception.
C. The U.S. Government Mandate Is Not the Least Restrictive Means of Furthering a Compelling Governmental Interest
130. The U.S. Government Mandate is not narrowly tailored to serve a compelling governmental interest.
131. The Government has no compelling interest in forcing Plaintiffs to violate their sincerely held religious beliefs by requiring them to participate in a scheme for the provision of abortion-inducing products, sterilization, contraceptives, and related education and counseling. The Government itself has relieved numerous other employers from this requirement by exempting grandfathered plans and plans of employers it deems to be sufficiently religious. Moreover, these services are widely available in the United States. The U.S. Supreme Court has
39

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 40 of 54 PageID #: 40
held that individuals have a constitutional right to use such services. And nothing that Plaintiffs do inhibits any individual from exercising that right.
132. Even assuming the interest was compelling, the Government has numerous alternative means of furthering that interest without forcing Plaintiffs to violate their religious beliefs. For example, the Government could have provided or paid for the objectionable services itself through other programs established by a duly enacted law. Or, at a minimum, it could have created a broader exemption for religious employers, such as those found in numerous state laws throughout the country and in other federal laws. The Government therefore cannot possibly demonstrate that requiring Plaintiffs to violate their consciences is the least restrictive means of furthering its interest.
133. The U.S. Government Mandate, moreover, would simultaneously undermine both religious freedom—a fundamental right enshrined in the U.S. Constitution—and access to the wide variety of social and educational services that Plaintiffs provide. The Archdiocese educates children who otherwise may not have adequate educational opportunities, and Catholic Charities provides a range of social services to the citizens of St. Louis. As President Obama acknowledged in his February 10, 2012 remarks on preventive care, religious organizations like Plaintiffs do “more good for a community than a government program ever could.” The negative consequences resulting from a refusal to comply with the U.S. Government Mandate, however, would undermine these good works.
134. That is unconscionable. Accordingly, Plaintiffs seek a declaration that the U.S. Government Mandate cannot lawfully be applied to Plaintiffs, an injunction barring its enforcement, and an order vacating the Mandate.
40

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 41 of 54 PageID #: 41
IV. THE U.S. GOVERNMENT MANDATE THREATENS PLAINTIFFS WITH IMMINENT INJURY THAT SHOULD BE REMEDIED BY A COURT 135. The U.S. Government Mandate is causing serious, ongoing hardship to Plaintiffs
that merits relief now. 136. On June 28, 2013, Defendants finalized the U.S. Government Mandate, including
the narrow “religious employer” exemption and the so-called “accommodation” proposed in the NPRM. By the terms of the Final Rule, Plaintiffs must comply with the Mandate by the beginning of the next plan year on or after January 1, 2014.
137. For Plaintiffs, the next plan year begins on July 1, 2014. 138. Defendants have given no indication that they will not enforce the essential provisions of the Mandate that impose a substantial burden on Plaintiffs’ rights. Consequently, absent the relief sought herein, Plaintiffs will be required to provide, pay for, and/or facilitate access to contraception, abortion-inducing products, sterilization, and related education and counseling, in violation of their sincerely held religious beliefs. 139. The U.S. Government Mandate is also harming Plaintiffs in other ways. 140. Health plans do not take shape overnight. A number of analyses, negotiations, and decisions must occur each year before Plaintiffs can offer a health benefits package to their employees. For example, an employer that is self-insured—like the Archdiocese—must work with actuaries to evaluate its funding reserves, and then negotiate with a third-party administrator to determine the cost of the products and services it wants to offer its employees. 141. Under normal circumstances, Plaintiffs must begin the process of determining their health care package for a plan year nearly one year before the plan year begins. The multiple levels of uncertainty surrounding the U.S. Government Mandate make this already lengthy process even more complex.
41

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 42 of 54 PageID #: 42
142. In addition, if Plaintiffs do not comply with the U.S. Government Mandate, they may be subject to government fines and penalties. Plaintiffs require time to budget for any such additional expenses.
143. The U.S. Government Mandate and its uncertain legality, moreover, undermine Plaintiffs’ ability to hire and retain employees, thus placing them at a competitive disadvantage in the labor market relative to organizations that do not have a religious objection to the Mandate.
144. Plaintiffs therefore need judicial relief now in order to prevent the serious, ongoing harm that the U.S. Government Mandate is already imposing on them. V. CAUSES OF ACTION
COUNT I Substantial Burden on Religious Exercise
in Violation of RFRA 145. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 146. RFRA prohibits the Government from substantially burdening an entity’s exercise of religion, even if the burden results from a rule of general applicability, unless the Government demonstrates that the burden furthers a compelling governmental interest and is the least restrictive means of furthering that interest. 147. RFRA protects organizations as well as individuals from Government-imposed substantial burdens on religious exercise. 148. RFRA applies to all federal law and the implementation of that law by any branch, department, agency, instrumentality, or official of the United States. 149. The U.S. Government Mandate requires Plaintiffs to provide, pay for, and/or facilitate access to abortion-inducing products, contraception, sterilization procedures, and related counseling, in a manner that is directly contrary to their religious beliefs.
42

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 43 of 54 PageID #: 43
150. The U.S. Government Mandate substantially burdens Plaintiffs’ exercise of religion.
151. The Government has no compelling governmental interest to require Plaintiffs to comply with the U.S. Government Mandate.
152. Requiring Plaintiffs to comply with the U.S. Government Mandate is not the least restrictive means of furthering a compelling governmental interest.
153. By enacting and threatening to enforce the U.S. Government Mandate against Plaintiffs, Defendants have violated RFRA.
154. Plaintiffs have no adequate remedy at law. 155. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT II Substantial Burden on Religious Exercise in Violation of
the Free Exercise Clause of the First Amendment 156. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 157. The Free Exercise Clause of the First Amendment prohibits the Government from substantially burdening an entity’s exercise of religion. 158. The Free Exercise Clause protects organizations as well as individuals from Government-imposed burdens on religious exercise. 159. The U.S. Government Mandate requires Plaintiffs to provide, pay for, and/or facilitate access to abortion-inducing products, contraception, sterilization procedures, and related counseling, in a manner that is directly contrary to their religious beliefs. 160. The U.S. Government Mandate substantially burdens Plaintiffs’ exercise of religion.
43

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 44 of 54 PageID #: 44
161. The U.S. Government Mandate is not a neutral law of general applicability because it is riddled with exemptions for which there is not a consistent, legally defensible basis. It offers multiple exemptions from its requirement that employer-based health plans include or facilitate access to abortion-inducing products, sterilization, contraception, and related education and counseling.
162. The U.S. Government Mandate is not a neutral law of general applicability because it was passed with discriminatory intent.
163. The U.S. Government Mandate implicates constitutional rights in addition to the right to free exercise of religion, including, for example, the rights to free speech, free association, and freedom from excessive government entanglement with religion.
164. The Government has no compelling governmental interest to require Plaintiffs to comply with the U.S. Government Mandate.
165. The U.S. Government Mandate is not narrowly tailored to further a compelling governmental interest.
166. By enacting and threatening to enforce the U.S. Government Mandate, the Government has burdened Plaintiffs’ religious exercise in violation of the Free Exercise Clause of the First Amendment.
167. Plaintiffs have no adequate remedy at law. 168. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT III Compelled Speech in Violation of the Free Speech Clause of the First Amendment 169. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint.
44

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 45 of 54 PageID #: 45
170. The First Amendment protects against the compelled affirmation of any religious or ideological proposition that the speaker finds unacceptable.
171. The First Amendment protects organizations as well as individuals against compelled speech.
172. Expenditures are a form of speech protected by the First Amendment. 173. The First Amendment protects against the use of a speaker’s money to support a viewpoint that conflicts with the speaker’s religious beliefs. 174. The U.S. Government Mandate would compel Plaintiffs to provide health care plans to their employees that include or facilitate access to products and services that violate their religious beliefs. 175. The U.S. Government Mandate would compel Plaintiffs to subsidize, promote, and facilitate education and counseling services regarding these objectionable products and services. 176. The U.S. Government Mandate would compel Plaintiffs to issue a certification of their beliefs that, in turn, would result in the provision of objectionable products and services to Plaintiffs’ employees. 177. By imposing the U.S. Government Mandate, Defendants are compelling Plaintiffs to publicly subsidize or facilitate the activity and speech of private entities that are contrary to their religious beliefs, and compelling Plaintiffs to engage in speech that will result in the provision of objectionable products and services to Plaintiffs’ employees. 178. The U.S. Government Mandate is viewpoint-discriminatory and subject to strict scrutiny. 179. The U.S. Government Mandate furthers no compelling governmental interest.
45

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 46 of 54 PageID #: 46
180. The U.S. Government Mandate is not narrowly tailored to further a compelling governmental interest.
181. Plaintiffs have no adequate remedy at law. 182. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT IV Prohibition of Speech in Violation of the First Amendment 183. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 184. The First Amendment protects the freedom of speech, including the right of religious groups to speak out to persuade others to refrain from engaging in conduct that may be considered immoral. 185. The Mandate violates the First Amendment freedom of speech by imposing a gag order that prohibits Plaintiffs from speaking out in any way that might “influence,” “directly or indirectly,” the decision of a third-party administrator to provide or procure contraceptive products and services to Plaintiffs’ employees. 186. Plaintiffs have no adequate remedy at law. 187. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT V Official “Church” Favoritism and Excessive Entanglement with Religion
in Violation of the Establishment Clause of the First Amendment 188. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 189. The Establishment Clause of the First Amendment prohibits the Government from adopting an official definition of a “religious employer” that favors some religious groups while excluding others.
46

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 47 of 54 PageID #: 47
190. The Establishment Clause also prohibits the Government from becoming excessively entangled in the affairs of religious groups by scrutinizing their beliefs, practices, and organizational features to determine whether they meet the Government’s favored definition.
191. The “ religious employer” exemption violates the Establishment Clause in two ways.
192. First, it favors some religious groups over others by creating an official definition of “religious employers” that excludes legitimate religious ministries. Religious groups that meet the Government’s official definition receive favorable treatment in the form of an exemption from the Mandate, while other religious groups do not. This also has the effect of discriminating among religious denominations.
193. Second, the “religious employer” exemption also violates the Establishment Clause because it requires the Government to determine whether groups qualify as “religious employers” based on intrusive judgments about their beliefs, practices, and organizational features. The exemption turns on an intrusive 14-factor test to determine whether a group meets the requirements of section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. These 14 factors probe into matters such as whether a religious group has “a distinct religious history” or “a recognized creed and form of worship.” But it is not the Government’s place to determine whether a group’s religious history is “distinct,” or whether the group’s “creed and form of worship” are “recognized.” By directing the Government to engage in such inquiries, the “religious employer” exemption runs afoul of the Establishment Clause prohibition on excessive entanglement with religion.
194. Plaintiffs have no adequate remedy at law.
47

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 48 of 54 PageID #: 48
195. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT VI Interference in Matters of Internal Church Governance in Violation of
the Religion Clauses of the First Amendment 196. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 197. The Free Exercise Clause and Establishment Clause and the Religious Freedom Restoration Act protect the freedom of religious organizations to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine. 198. Under these Clauses, the Government may not interfere with a religious organization’s internal decisions concerning the organization’s religious structure, ministers, or doctrine. 199. Under these Clauses, the Government may not interfere with a religious organization’s internal decision if that interference would affect the faith and mission of the organization itself. 200. Plaintiffs are religious organizations affiliated with the Roman Catholic Church. 201. The Catholic Church views abortion, sterilization, and contraception as intrinsically immoral, and prohibits Catholic organizations from condoning or facilitating those practices. 202. Plaintiffs have abided and must continue to abide by the teaching of the Catholic Church on these issues. 203. The Government may not interfere with or otherwise question the final decision of the Catholic Church that its religious organizations must abide by these views. 204. Plaintiffs have therefore made the internal decision that the health plans they offer to their employees may not cover, subsidize, or facilitate abortion, sterilization, or contraception.
48

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 49 of 54 PageID #: 49
205. Plaintiff Archdiocese of St. Louis has further made the internal decision that its affiliated religious entities, including Plaintiff Catholic Charities, should offer their employees health-insurance coverage through the Archdiocese’s plan, which allows the Archdiocese to ensure that these affiliates do not offer coverage for services that are contrary to Catholic teaching.
206. The U.S. Government Mandate interferes with Plaintiffs’ internal decisions concerning their structure and mission by requiring them to facilitate practices that directly conflict with Catholic beliefs.
207. The U.S. Government Mandate’s interference with Plaintiffs’ internal decisions affects their faith and mission by requiring them to facilitate practices that directly conflict with their religious beliefs.
208. Because the U.S. Government Mandate interferes with the internal decisionmaking of Plaintiffs in a manner that affects Plaintiffs’ faith and mission, it violates the Establishment Clause and the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act.
209. Plaintiffs have no adequate remedy at law. 210. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT VII Illegal Action in Violation of the APA 211. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 212. The APA requires that all Government agency action, findings, and conclusions be “in accordance with law.”
49

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 50 of 54 PageID #: 50
213. The U.S. Government Mandate, its exemption for “religious employers,” and its so-called “accommodation” for “eligible” religious organizations are illegal and therefore in violation of the APA.
214. The Weldon Amendment states that “[n]one of the funds made available in this Act [to the Department of Labor and the Department of 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.” Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(1), 125 Stat. 786, 1111 (2011).
215. The term “health care entity” is defined to include “an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan.” Id. § 507(d)(2) (emphasis added).
216. The U.S. Government Mandate requires employer-based health plans to provide coverage for abortion-inducing products, contraception, sterilization, and related education. By issuing the U.S. Government Mandate, Defendants have exceeded their authority, and ignored the direction of Congress.
217. The U.S. Government Mandate violates RFRA. 218. The U.S. Government Mandate violates the First Amendment. 219. The U.S. Government Mandate is not in accordance with law and thus violates 5 U.S.C. § 706(2)(A).
50

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 51 of 54 PageID #: 51
220. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
221. Plaintiffs have no adequate remedy at law. 222. Defendants’ failure to act in accordance with law imposes an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT VIII Erroneous Interpretation of the Exemption
with Respect to Multi-Employer Plans 223. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 224. The Mandate explicitly exempts “group health plan[s] established or maintained by a religious employer (and health insurance coverage provided in connection with a group health plan established or maintained by a religious employer)” from “any requirement to cover contraceptive services.” 45 C.F.R. § 147.131(a). 225. In the ANPRM, Defendants acknowledged that the religious employer exemption was “available to religious employers in a variety of arrangements.” 77 Fed. Reg. at 16,502. 226. Specifically, Defendants indicated that a nonexempt entity could “provide[] health coverage for its employees through” a plan offered by a separate, “affiliated” organization that is a “distinct common-law employer.” Id. 227. In such a situation, Defendants stated that if the “affiliated” organization was “exempt from the requirement to cover contraceptive services, then neither the [affiliated organization] nor the [nonexempt entity would be] required to offer contraceptive coverage to its employees.” Id.
51

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 52 of 54 PageID #: 52
228. This reading reflects the plain and unambiguous text of the regulation, which by its terms exempts “group health plan[s]” so long as they are “established or maintained by a religious employer.”
229. Nonetheless, when issuing the Final Rule, Defendants reversed course, rejecting a “plan-based approach” and adopting an “employer-by-employer approach” whereby “each employer [must] independently meet the definition of religious employer . . . in order to avail itself of the exemption.” 78 Fed. Reg. at 39,886.
230. An employer-based approach contradicts the plain text of the regulation, which exempts “group health plan[s],” not individual employers.
231. The Archdiocese meets the Mandate’s definition of a religious employer, and therefore, the group health plan it has “established or maintained” is exempt from providing coverage for abortion-inducing products, sterilization, contraception, and related education and counseling.
232. The Defendants erroneous interpretation of the religious employer exemption, however, precludes the Archdiocese’s affiliated entities, including Plaintiff Catholic Charities, from obtaining the benefit of the exemption by participating in the exempt group health plan established and maintained by the Archdiocese.
233. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
234. Plaintiffs have no adequate remedy at law. 235. Defendants’ erroneous interpretation imposes an immediate and ongoing harm on Plaintiffs that warrants relief.
52

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 53 of 54 PageID #: 53
DEMAND FOR JURY TRIAL Plaintiffs hereby make demand for a trial by jury of all issues so triable.
WHEREFORE, Plaintiffs respectfully pray that this Court: 1. Enter a declaratory judgment that the U.S. Government Mandate violates
Plaintiffs’ rights under RFRA; 2. Enter a declaratory judgment that the U.S. Government Mandate violates
Plaintiffs’ rights under the First Amendment; 3. Enter a declaratory judgment that the U.S. Government Mandate was
promulgated in violation of the APA; 4. Enter an injunction prohibiting the Defendants from enforcing the U.S.
Government Mandate against Plaintiffs; 5. Enter an order vacating the U.S. Government Mandate; 6. Enter a declaratory judgment that Defendants have erroneously interpreted the
scope of the religious employer exemption, and that nonexempt organizations may obtain the benefit of the religious employer exemption if they provide insurance through a group health plan established and maintained by a religious employer; 7. Award Plaintiffs attorneys’ and expert fees under 42 U.S.C. § 1988; and 8. Award all other relief as the Court may deem just and proper.
53

Case: 4:13-cv-02300-JAR Doc. #: 1 Filed: 11/14/13 Page: 54 of 54 PageID #: 54
Respectfully submitted, this the 14th day of November, 2013.
JONES DAY /s/ Mark P. Rotatori Daniel E. Reidy (pro hac vice pending) dereidy@jonesday.com Carol A. Hogan (pro hac vice pending) chogan@jonesday.com Mark P. Rotatori (pro hac vice pending) mprotatori@jonesday.com Brian J. Murray (pro hac vice pending) bjmurray@jonesday.com Dennis Murashko (pro hac vice pending) dmurashko@jonesday.com 77 West Wacker Drive Chicago, IL 60601 (312) 782-3939 (telephone) (312) 782-8585 (facsimile) Counsel for Plaintiffs
54

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ARCHDIOCESE OF ST. LOUIS and CATHOLIC CHARITIES OF ST. LOUIS,
Plaintiffs,
V.
SYLVIA M. BURWELL', in her official capacity as Secretary, United States Department of Health and Human Services, et al.,
Defendants.

) ) ) ) ) ) No. 4: 13-CV-2300-JAR ) ) ) ) ) ) )

MEMORANDUM AND ORDER

This matter is before the Court on Plaintiffs Motion for Preliminary Injunction and

Request for Oral Argument.2 (Doc. No. 48) The motion is fully briefed and ready for disposition.

On June 13, 2014 and June 26, 2014, Defendants filed Notices of Supplemental Authority related

to the pending motion for preliminary injunction. (Doc. Nos. 56, 57)

I. Background

This action is one of many cases filed throughout the United States challenging a provision of the Affordable Care Act ("ACA")3 and the regulations issued under it, which

mandate that certain employers provide health coverage for contraceptives to their employees, or

1 Pursuant to Federal Rule of Civil Procedure 25(d), Sylvia M. Burwell has been substituted in her official capacity for Kathleen Sebelius as Secretary of Health and Human Services.
2 Plaintiffs' request for oral argument on their motion for preliminary injunction will be denied. The parties have thoroughly briefed the motion and the Court has determined it can resolve the issues presented without the need for oral argument.
3 Patient Protection and Affordable Care Act, Pub.L. No. 111-148, 124 Stat. 119 (2010), and the Health Care and Education Reconciliation Act, Pub.L. No. 111-152, 124 Stat. 1029 (2010).

face fines for failing to do so. The relevant statutory and regulatory background of the ACA has

been set out in detail in several recent opinions. See, ~' Michigan Catholic Conference and

Catholic Family Services v. Burwell, 2014 WL 2596753, at *2-3 (6th Cir. Jun. 11, 2014); The

Catholic Benefits Association LCA v. Sebelius, 2014 WL 2522357, at *1-3 (W.D. Okla. June 4,

2014); The Roman Catholic Archdiocese of Atlanta v. Sebelius, 2014 WL 1256373, at *2-4

(N.D.Ga. Mar. 26, 2014).

Briefly, under the ACA, "employment-based group health plans covered by the

Employee Retirement Income Security Act (ERISA) must provide certain types of preventive

health services." Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1122 (10th Cir.2013),

aff'd sub nom. Burwell v. Hobby Lobby Stores, Inc., -- S.Ct. --, 2014 WL 2921709 (Jun. 30,

2014) (citing 42 U.S.C. § 300gg-13; 29 U.S.C. § 1185(d)). The provision of the ACA at issue,

herein referred to as the contraceptive mandate, "mandates coverage, without cost-sharing by

plan participants or beneficiaries, of 'preventive care and screenings' for women 'as provided for

in comprehensive guidelines supported by the Health Resources and Services Administration.' "

Id. (citing 42 U.S.C. § 300gg-13(a)(4)). The scope of "preventive care" includes "[a]ll Food and

Drug

Administration

approved

contraceptive

methods

4 ,

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 (last visited June 29, 2014).

The mandate exempts "religious employers" from the contraceptive requirement. Hobby

Lobby, 723 F.3d at 1123. This exemption is limited, however, and includes only "churches,

4 FDA-approved contraceptive methods include oral contraceptives, the so-called morning after pill, also known as Plan B, the so-called week after pill, also known as Ella, and intra uterine devices. Catholic Benefits Ass'n, 2014 WL 2522357, at *10 fu.3 (citing Food & Drug Administration, "Birth Control: Medicines to Help You," www.fda.gov/forconsumers/byaudience/forwomen/freepublications/ucm313215.htrn (last visited June 29, 2014).

-2-

synagogues, mosques, and other houses of worship, and religious orders." Diocese of Cheyenne v. Sebelius, 2014 WL 1911873, at *2 (D.Wyo. May 13, 2014) (quoting 78 Fed.Reg. 8456, 8461 (Feb. 6, 2013)).
The mandate also includes an "accommodation" for certain non-exempt employers who do not want to provide coverage for the required contraceptive services based on religious objections. See 45 C.F.R. § 147.131 (b). Id. A non-exempt employer is eligible for this accommodation if it satisfies the following requirements:
(1) it opposes providing coverage for some or all of the required contraceptive services due to religious objections; (2) it is a nonprofit entity; (3) it "holds itself out as a religious organization;" and (4) it "self-certifies, in a form and manner specified by the Secretaries of Health and Human Services and Labor, that it satisfies the [previous three] criteria." 29 C.F.R. § 2590.715-2713A(a)(l)-(4). To meet this last requirement, self-certification, an employer must provide the selfcertification form to its insurance company, or, if the employer has a self-insured health plan (as is the case here), to its third-party administrator ("TPA"). 26 C.F.R. § 54.9815-2713A(b)-(c); 29 C.F.R. § 2590.715-2713A(b)-(c); 45 C.F.R. § 147.131(c); 78 Fed.Reg. at 39,878-79. The law then requires the TPA to provide or arrange separate payments for contraceptive products and services, without participation, payment, or interference from the eligible organization. 26 C.F.R. § 54.9815-2713A(b)-(d); 29 C.F.R. § 2590.715-2713A(b)-(d); 45 C.F.R. § 147.131(c)-(d); 78 Fed.Reg. at 39,878-80. The TPA is reimbursed for the costs it incurs when it provides such coverage. See 45 C.F.R. 156.50(d)(3)(ii).
-3-

If an employer subject to the contraceptive mandate fails to provide the required contraceptive coverage in its health plan, then the employer faces fines of $100 per day per employee, or up to $36,500 per year per employee. 26 U.S.C. § 4980D(b)(l). Further, if the employer fails to provide any health plan whatsoever to its employees, then the employer faces fines of $2,000 per year per full time employee (less 30 employees). 26 U.S.C. § 4980H(a), (c)(l).
Plaintiffs, the Archdiocese of St. Louis ("Archdiocese") and Catholic Charities of St. Louis ("Catholic Charities"), describe themselves as Catholic entities "that provide a wide range of spiritual, educational, and social services to members of the greater St. Louis community, Catholic and non-Catholic alike." (Compl., Doc. No. 1, ~ 2) Catholic Church teachings uphold the firm conviction that sexual union should be reserved to married couples who are open to the creation of life; thus, artificial interference with the creation of life, including through abortion, sterilization, and contraceptives, is contrary to Catholic doctrine. (Id., ~ 4) The Archdiocese operates a self-insured health plan that encompasses not only individuals directly employed by the Archdiocese itself, but also individuals employed by affiliated Catholic organizations, including Catholic Charities. (Id.,~ 12) Consistent with Church teachings, the Archdiocese's plan does not cover abortion-inducing drugs, sterilization, or contraceptives. (Id., ~ 39) The Archdiocese is exempt from the contraceptive mandate as a religious employer. (Id.,~ 12) Catholic Charities is eligible for the "accommodation" as a nonprofit religious organization that objects to providing coverage for contraceptive services. (Id.,~ 10)
Plaintiffs have brought this action against the Secretary of the United States Department of Health and Human Services, along with other government officials and agencies ("the Government"), alleging that the contraceptive mandate violates their rights under the Religious Freedom Restoration Act (RFRA), 42 U.S.C. §§ 2000bb et seq., the First Amendment, and the
-4 -

Administrative Procedure Act. Plaintiffs also allege claims for interference with internal church governance and erroneous interpretation of regulations by the Government.
On May 8, 2014, Plaintiffs moved for a preliminary injunction against the Government's enforcement of the contraceptive mandate against them in light of the July 1, 2014 mandate, when their new plan year begins for its employee group health plan. The motion was fully briefed on May 30, 2014. On June 13 and June 26, 2014, Defendants filed Notices of Supplemental Authority related to the pending motion for preliminary injunction.
II. Legal standard "[T]he basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies." Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506-07 (1959). A district court has broad discretion when ruling on a request for injunction. Novus Franchising, Inc. v. Dawson, 725 F.3d 885, 893 (8th Cir. 2013). In determining whether a preliminary injunction should be issued, a district court must consider: (1) the threat of irreparable harm to the movant, (2) the balance between this harm and the harm to the other party if the injunction is granted, (3) the probability of movant's success on the merits, and (4) the public interest. Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109, 114 (8th Cir.1981). III. Discussion A. Standing In its opposition to Plaintiffs' motion for preliminary injunction, the Government challenges Plaintiffs' standing. To establish standing, Plaintiffs "must show an injury that is (1) concrete, particularized, and actual or imminent; (2) fairly traceable to the challenged action; and (3) redressable by a favorable ruling." Hobby Lobby, 723 F.3d at 1126 (quoting Clapper v. Amnesty Int'l USA, 133 S.Ct. 1138, 1147 (2013) (internal quotation omitted). The first element
-5-

requires that Plaintiffs "must have suffered an 'injury in fact'- an invasion of a legally protected interest." See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
The asserted injury in this case flows from the mandate's requirement that Plaintiffs provide, pay for, and/or facilitate access to insurance coverage for contraceptive services, including contracting with a TPA that will, as a result, provide or procure contraceptive products and services to Plaintiffs' employees. Likewise, Plaintiffs object to being forced to take other actions that facilitate access to the products and services they believe to be objectionable, including the self-certification requirement.
The Government argues it has no ERISA authority to require a church plan to contract with a TPA to provide contraceptive coverage or compel a TPA to provide contraceptive coverage after it agrees to enter into a contract with the Plaintiffs and receives the selfcertification form. 5 (Doc. No. 52, p. 2) Thus, Plaintiffs cannot demonstrate an injury in fact since the regulations will not actually force Plaintiffs' TPA to provide coverage for the objectionable services.
A number of courts have already addressed the standing argument the Government raises here and rejected it, reasoning that it is the fact of the requirement that is important, not whether the Government will or will not choose to enforce it. In Roman Catholic Archdiocese of New York, 2013 WL 6579764 (E.D.N.Y. Dec. 16, 2013), the district court analyzed the plaintiffs' injury in fact as follows:
5 Under the ACA regulations, Defendants may enforce the contraceptive mandate against TPAs through ERISA's enforcement authority. See 78 Fed.Reg. at 39,879-39,880. However, self-insured, church sponsored health care plans ("church plans") are specifically excluded from ERISA. See 29 U.S.C § 1003(b)(2). (Doc. No. 52, p. 2) Curiously, Defendants assert that Plaintiffs state "for the first time that they have a 'self-insured church plan"' in their motion for preliminary injunction. (Doc. No. 52, p. 2) In the complaint, however, Plaintiffs state "the Archdiocese operates a self-insurance plan that encompasses not only individuals directly employed by the Archdiocese itself, but in addition, individuals employed by affiliated Catholic organizations ... " (Comp!., ,, 12, 38)
-6 -

[P]laintiffs' alleged injury is that the [m]andate renders them complicit in a scheme aimed at providing coverage to which they have a religious objection. This alleged spiritual complicity is independent of whether the scheme actually succeeds at providing contraceptive coverage. It is undisputed that all of the non-exempt plaintiffs will still have to either comply with the mandate and provide the objectionable coverage or selfcertify that they qualify for the accommodation. Plaintiffs allege that their religion forbids them from completing this self-certification, because to them, authorizing others to provide services that plaintiffs themselves cannot is tantamount to an endorsement or facilitation of such services. Therefore, regardless of the effect on plaintiffs' TPAs, the regulations still require plaintiffs to take actions they believe are contrary to their religion. As for the plaintiffs that qualify for the religious employer exemption, plaintiffs allege that the[y] ... will have to choose between complying with the [m]andate by providing the objectionable coverage or ejecting their non-exempt affiliates from their health plans. Leaving aside for now the merits of these claims, as a court must, ... plaintiffs have adequately alleged an injury-in-fact.
Id. at *7.
Likewise, in Roman Catholic Archdiocese of Atlanta v. Sebelius, 2014 WL 1256373, at
*23 (N.D.Ga. Mar. 26, 2014), the district court instructed that "[i]t is, at the core, irrelevant
whether the government has the authority to enforce the contraceptive mandate against a TPA
which undertakes to provide coverage for preventive care, and there is no legitimate basis to
speculate that the TPA will not provide coverage offensive to the Plaintiffs here. That a TPA of a
church plan may voluntarily comply with the contraceptive mandate and ultimately provide
contraceptive services underscores the legitimacy and reality of Plaintiffs' concern that the self-
certification form causes them to be complicit in a scheme to provide contraceptive services,
devices and products that violate their longstanding and deeply-help religious beliefs." See also,
Catholic Diocese of Beaumont v. Sebelius, 2014 WL 31652, at *5 (E.D.Tex. Jan. 2, 2014);
Reaching Souls Int'l, Inc. v. Sebelius, 2013 WL 6804259, at *7 (W.D. Okla. Dec. 20, 2013). Cf.
Roman Catholic Archbishop of Washington v. Sebelius, 2013 WL 6729515, at *25-26 n. 22
(D.D.C. Dec. 20, 2013), injunction pending appeal granted, No. 13-5371 (D.C. Cir. Dec. 31,
2013).
-7-

As discussed in detail in these cases, Plaintiffs' injury is not related to whether the TPA can be penalized for noncompliance with the mandate. Rather, Plaintiffs' injury arises when the provision of contraceptive coverage has been facilitated by their actions and their beliefs have thereby been violated. This constitutes a sufficient injury to satisfy the constitutional minimum of standing. Reaching Souls Intern., 2013 WL 6804259 at *5.
B. Likelihood of success6 "[P]arties moving to preliminarily enjoin a statute or regulation must establish that they are 'likely to prevail on the merits,' because such promulgations came about by a 'presumptively reasoned democratic process [].'"Barrett v. Claycomb, 705 F.3d 315, 321n.4 (8th Cir. 2013) (quoting Planned Parenthood Minn. v. Rounds, 530 F.3d 724, 732 (8th Cir.2008) (en bane) ("If the party with the burden of proof makes a threshold showing that it is likely to prevail on the merits, the district court should then proceed to weigh the other Dataphase factors."); Shrink Mo. Government PAC v. Adams, 151 F.3d 763, 765 (8th Cir.1998) (describing this consideration as the most important of the four factors). 1. RFRA A plaintiff establishes a prima facie case under RFRA by showing the government's action is (1) a substantial burden on (2) a sincere (3) religious exercise. Hobby Lobby, 723 F.3d at 1125-26. If a prima facie case is established, the burden then shifts to the government to show that application of the burden to the person - the particular claimant whose sincere exercise of religion is being substantially burdened - (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. Id. at 1126 (quoting Gonzales v. 0 Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418,
6 The parties agreed to incorporate by reference their summary judgment briefing with respect to the likelihood of success element for a preliminary injunction. (Doc. No. 49, p. 5 n.2)
-8-

420 (2006). Notably, even at the preliminary injunction stage, RFRA's burden shifting approach applies. Id. (citing Gonzales. 546 U.S. at 429).
(a) Substantial burden Under RFRA, an act by 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." Catholic Benefits Ass'n LCA v. Sebelius, 2014 WL 2522357, at *6-7 (W.D.Okla. June 4, 2014) (quoting Hobby Lobby, 723 F.3d at 1138). The term "substantial burden" is not defined by RFRA; however, the plain meaning of "substantial" suggests the burden on religious exercise must be more than insignificant or remote, and case law confirms this common-sense conclusion. O'Brien v. U.S. Dept. of Health and Human Services, 894 F.Supp.2d 1149, 1158 (E.D.Mo. 2012) (citing Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir.2004) ("[A] substantial burden must place more than an inconvenience on religious exercise; a substantial burden is akin to significant pressure which directly coerces the religious adherent to conform his or her behavior accordingly.") See also The Roman Catholic Archdiocese of Atlanta, 2014 WL 1256373, at *10 ("The Court evaluates, on the facts of this case, whether the regulations put "substantial pressure" on the Plaintiffs to modify their behavior and violate their sincerely held religious beliefs."). Plaintiffs assert their Catholic beliefs prohibit them from "providing, paying for, and/or facilitating access to abortion-inducing products, contraception, or sterilization, including by contracting with an insurance company or third-party administrator that will, as a result, provide or procure the objectionable products and services to Plaintiffs' employees." (Compl., ,-i 106) In
-9 -

addition, Plaintiffs object to being forced to take other actions that facilitate access to the objectionable products and services, including the mandate's self-certification requirement. (Id.)
The Archdiocese contends that pursuant to the contraceptive mandate, it must either (1) sponsor a plan that will provide, pay for, and/or facilitate the provision of the objectionable products and services to the employees of Catholic Charities and other organizations, or (2) no longer extend its plan to these organizations, subjecting them to substantial financial penalties if they do not contract with another insurance provider that will provide coverage. (Id., ~ 12) In turn, Catholic Charities contends that its self-certification triggers or initiates a process resulting in the provision of the objectionable products and services to its employees, contrary to its religious beliefs. (Id., ~ 11)
The Government does not appear to dispute that Plaintiffs' beliefs are sincerely held religious beliefs or that their opposition to the contraceptive mandate is a religious exercise. Rather, the Government contends the challenged regulations do not impose a substantial burden on their exercise of religion. (Doc. No. 24-1, p. 10) The Archdiocese is entirely exempt from the contraceptive coverage mandate, and Catholic Charities, as an eligible organization, need only self-certify that it objects to providing coverage for contraceptive services and provide that selfcertification to its TPA, a de minimus burden. (Id., pp. 11-16) The Government characterizes Plaintiffs' claim as similar to the one rejected in Kaemmerling v. Lappin, 553 F.3d 669 (D.C. Cir. 2008). (Id., p. 12) There, the plaintiff, a federal prisoner, claimed the collection of DNA samples from him "defile[d] God's temple" in violation of his Free Exercise rights. Id. at 677. The court concluded that Kaemmerling did "not allege facts sufficient to state a substantial burden on his religious exercise because he cannot identify any 'exercise' which is the subject of
- 10 -

the burden to which he objects." Id. at 679. His only objection was directed at the independent actions of a third party, the FBI, not his own actions.
Plaintiffs respond that the Government's argument reflects a misunderstanding of their religious objection, which is directed not only to using contraceptives, but also to taking actions that facilitate their use. (Doc. No. 38, p. 18) The mandate requires Plaintiffs to either provide a health care plan that includes the required coverage or authorize the provision of those services through self-certification, acts they are required to perform independent of any third party's act. (Id., pp. 11-12) Plaintiffs argue they cannot avoid these requirements without subjecting themselves to significant financial penalties. (Id., p. 12)
Defendants further argue that even if the regulations were found to impose more than a de minimus burden on Plaintiffs' exercise of religion, any such burden would be far too attenuated to be "substantial" under RFRA. (Id., pp. 16-19) In other words, the services to which Plaintiffs object will only be provided if one of their employees independently requests the services. In the event such a request is made, the regulation prohibits any costs of those services, directly or indirectly, to be imposed on Plaintiffs.
Plaintiffs respond that the touchstone of the substantial burden analysis is whether they are compelled to act in violation of their religious beliefs. RFRA contains no requirement that the actions required of Plaintiffs be "significant" or "substantial" - "any exercise of religion" is protected. (Id., pp. 13-14) Moreover, it is not the Court's role to determine whether facilitating access to contraceptive services violates Plaintiffs' religious beliefs. (Id., pp. 15-18)
The case law on this issue is quickly developing. Plaintiffs note that the vast majority of courts faced with similar challenges have enjoined enforcement of the contraceptive mandate, holding that religious entities in similar challenges have shown a likelihood of success on their
- 11 -

RFRA claims. See,~., Ave Maria Foundation v. Sebelius, 2014 WL 117425 (E.D. Mich. Jan.
13, 2014); Sharpe Holdings, Inc. v. U.S. Dep't of Health & Human Servs., 2013 WL 6858588
(E.D. Mo. Dec. 30, 2013); Diocese of Fort Wayne-S. Bend, Inc. v. Sebelius, 2013 WL 6843012
(N.D. Ind. Dec. 27, 2013); S. Nazarene Univ., 2013 WL 6804265; Geneva Coll. v. Sebelius,
2013 WL 6835094 (W.D. Pa. Dec. 23, 2013); Legatus v. Sebelius, 2013 WL 6768607 (E.D.
Mich. Dec. 20, 2013); The Roman Catholic Archdiocese of New York, 2013 WL 6579764; Zubik v. Sebelius, 2013 WL 6118696 (W.D.Pa. Nov. 21, 2013). (Doc. No. 38, p. 9, n.1). 7 C.f.,
Charities of the Archdiocese of Philadelphia v. Burwell, 2014 WL 2892502 (E.D. Pa. Jun. 26,
2014); Wheaton College v. Burwell, 2014 WL 2826336 (N.D.Ill. Jun. 23, 2014); Michigan
Catholic Conf. v. Burwell, 2014 WL 2596753 (6th Cir. Jun. 11, 2014); University of Notre Dame
v. Sebelius, 743 F.3d 547 (ih Cir. 2014); Diocese of Cheyenne v. Sebelius, 2014 WL 1911873
(D.Wyo. May 13, 2014); Priests for Life v. United States Department of Health and Human
Services, 2013 WL 6672400 (D.D.C. Dec. 19, 2013).
Most recently in Colorado Christian Univ., 2014 WL 2804038, the district court
examined two competing cases, Zubik, 2013 WL 6118696 and Univ. of Notre Dame, 743 F.3d
547. In Zubik, the district court agreed with the plaintiffs that the affirmative act of signing the
exemption form and delivering it to a TPA ("the accommodation") was an action which imposes
a substantial burden on their exercise of religion:
[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
7 More recent cases include Colorado Christian University v. Sebelius, 2014 WL 2804038 (D.Colo. June 20, 2014); Catholic Benefits Ass'n, 2014 WL 2522357; Dobson v. Sebelius, 2014 WL 1571967 (D. Colo. Apr. 17, 2014); and Roman Catholic Archdiocese of Atlanta, 2014 WL 1256373. While none of these rulings are binding on this Court, the Court finds them persuasive.
- 12 -

the "accommodation"; to the contrary, it still substantially burdens their sincerely-held religious beliefs.
Colorado Christian University, 2014 WL 2804038 at *5 (quoting Zubik, 2013 WL 6118696, at
*25).
In Notre Dame, the Seventh Circuit concluded 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 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.
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. Notre Dame's signing the form no more "triggers" [the health insurance provider]'s obligation to provide contraceptive services than a tortfeasor's declaring bankruptcy "triggers" his co-tortfeasors' joint and several liability for damages. [The health insurance provider] must provide the services no matter what; signing the form simply shifts the financial burden from the university to the government.
I
Colorado Christian University, 2014 WL 2804038 at *6 (quoting Notre Dame, 743 F.3d at 555,
557).
After careful review, Judge Blackburn adopted the district court's reasoning in Zubik.
Noting that analysis of the burden imposed on a plaintiffs religious beliefs can begin to "bleed"
into an assessment of the validity or credibility of those beliefs or the sincerity of those beliefs,
he ruled that such an assessment is not appropriate, particularly where the sincerity of the
plaintiffs beliefs is conceded. 2014 WL 2804038, at *6. "Courts may still evaluate whether a
law pressures a litigant to modify her behavior and whether that pressure is significant. But
- 13 -

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. at *7 (quoting Ave Maria Foun., 2014 WL 117425, at *5).
This Court agrees with the reasoned opinion of Judge Blackbum. Plaintiffs have a sincere religious belief that artificial interference with the creation of life, including through abortion, sterilization and contraceptives is contrary to Catholic doctrine. By requiring Plaintiffs to choose between providing contraceptive coverage to their employees and paying substantial financial penalties if they refuse to do so, the mandate applies substantial pressure on Plaintiffs to engage in conduct contrary to their religious beliefs. Therefore, Plaintiffs have established a substantial burden under RFRA. Catholic Benefits Ass'n, 2014 WL 2522357, at *8 (citing Hobby Lobby, 723 F.3d at 1142; S. Nazarene Univ., 2013 WL 6804265, at *8).
(b) Compelling interest Because Plaintiffs have demonstrated a substantial burden on their religious exercise, the Government must show the mandate is the "least restrictive means of furthering a compelling governmental interest." 42 U.S.C. § 2000bb-l(b). The Government advances two compelling interests: the "promotion of public health" and "assuring that women have equal access to health care services," i.e., gender equality. (Doc. No. 24-1, pp. 19-21) There is no question that promoting public health and gender equality are of "tremendous societal significance." Conestoga Wood Specialties Corp. v. Secretary of U.S. Dept. of Health and Human Services, 724 F.3d 377, 412 (3rd Cir. 2013), rev 'd sub nom. Burwell v. Hobby Lobby Stores, Inc., -- S.Ct. -
- 14 -

-, 2014 WL 2921709 (Jun. 30, 2014). "The Government can certainly claim "a compelling interest in safeguarding the public health by regulating the health care and insurance markets." Id. (quoting Mead v. Holder, 766 F.Supp.2d 16, 43 (D.D.C.2011)). Moreover, given the "undoubted importance, both to the individual and to society, [to] remov[e] the barriers to economic advancement and political and social integration that have historically plagued certain disadvantaged groups, including women, ... there is a compelling interest in "[a]ssuring women equal access to ... goods, privileges, and advantages" enjoyed by men." Id. (internal citations omitted).
Indeed, Congress enacted the contraceptive mandate because "women have different health needs than men, and these needs often generate additional costs." Michigan Catholic Conf., 2014 WL 2596753, at *2 (quoting 155 Cong. Rec. 29049, 29070 (Dec. 2, 2009) (statement of Sen. Feinstein)). Prior to the ACA, "[w]omen of childbearing age spent 68 percent more in out-of-pocket health care costs than men." Id. These disproportionately high costs discouraged women from seeking treatment: "[w]omen are more likely than men to neglect care or treatment because of cost." Id. (quoting 155 Cong. Rec. Sl 1985, Sl 1987 (daily ed. Nov. 30.2009) (statement of Sen. Mikulski)). The ACA thus requires coverage for, "with respect to women, such additional preventive care and screenings ... as provided for in comprehensive guidelines supported by the Health Resources and Services Administration." Id. (quoting 42 U.S.C. § 300gg-13(a)(4); Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services under the Patient Protection and Affordable Care Act, 77 Fed.Reg. 872501, 8725 (Feb. 15, 2012) (to be codified at 29 C.F.R. pt. 2590; 45 C.F.R. pt. 147). See also, Univ. of Notre Dame, 743 F.3d at 549 ("Because out-of-pocket expenditures on female contraceptives can be substantial for many women, providing contraceptives without cost to the user can be
- 15 -

expected to increase contraceptive use and reduce the number of unintended pregnancies and of abortions ... [W]omen who can successfully delay a first birth and plan the subsequent timing and spacing of their children are more likely than others to enter or stay in school and to have more opportunities for employment and for full social or political participation in their community.") These are not "broadly formulated interests justifying the general applicability of government mandates," Gonzales, 546 U.S. at 431, but rather concrete and specific interests supported by empirical evidence.
Plaintiffs argue the Government has not shown its interests would be seriously undermined by granting them an exemption from the mandate, particularly given the numerous exemptions the Government has already made for what it defines as "religious employers," as well as for grandfathered plans and employers with less than fifty employees. (Doc. No. 38, pp. 21-24) These limited exemptions do not, in the Court's opinion, necessarily undermine the Government's interests and instead reflect the Government's attempts to balance the competing interests at stake. "Even a compelling interest may be outweighed in some circumstances by another even weightier consideration."8 Burwell, --S.Ct.--, 2014 WL 2921709. Accordingly, the Court finds the Government's interests in promoting public health and gender equality are compelling within the meaning of RFRA and that the contraceptive mandate furthers those interests.
(c) Least restrictive means
8 The Supreme Court noted in particular that the interest served by the exception for grandfathered plans is simply the interest of employers in avoiding the inconvenience of amending an existing plan. "Grandfathered plans are required 'to comply with a subset of the [ACA]'s health reform provisions' that provide what HHS has described as 'particularly significant protections' ... But the contraceptive mandate is expressly excluded from this subset." Burwell, --S.Ct.--, 2014 WL 2921709 (internal citation omitted). The Supreme Court assumed without deciding that the Government has a compelling interest in providing women FDA-approved contraception at no cost, and proceeded to consider whether the Government had shown that the contraceptive mandate was the least restrictive means of furthering that interest. Id.
- 16 -

However, this Court cannot see how the mandate is the least restrictive means to further the Government's compelling interests. The least restrictive means inquiry is "exceptionally demanding," see Burwell, --S.Ct.--, 2014 WL 2921709 (citing City of Boerne v. Flores, 521 U.S. 507, 532 (1997), and involves "comparing the cost to the government of altering its activity to continue unimpeded versus the cost to the religious interest imposed by the government activity." Ave Maria Foun., 2014 WL 117425, at *7 (quoting S. Ridge Baptist Church v. Indus. Comm'n of Ohio, 911 F.2d 1203, 1206 (6th Cir.1990)). Plaintiffs suggest several alternative means by which the Government could provide contraceptive services without burdening their religious exercise, including providing the coverage directly to Plaintiffs' employees, or through grants or tax credits. (Doc. No. 38, pp. 31-32) The Court notes these options have been recognized as feasible alternatives by other courts. Roman Catholic Archdiocese of New York, 2013 WL 6579764, at *18 (citing Korte v. Sebelius, 735 F.3d 654, 686 (?1h Cir. 2013)). See also, East Texas Baptist Univ., 2013 WL 6838893, at *24. Indeed, the Supreme Court has observed that the most straightforward way for the Government to achieve its goal without imposing a substantial burden on the exercise of religion would be to assume the cost of providing contraceptives to any women unable to obtain them under their health insurance policies due to their employers' religious objections. Burwell, --S.Ct.--, 2014 WL 2921709.
The Government argues it considered Plaintiffs' alternative and determined it was not feasible because "the agencies lacked statutory authority to implement it, it would impose considerable new costs and other burdens on the government, and it would otherwise be impracticable." (Doc. No. 24-2, p. 26) (citing 78 Fed.Reg. at 39,888). This exact argument was considered and rejected by the district court in Ave Maria Foun.:
First, the government's assertion that it would need additional statutory authority misses the point of the compelling interest test, which probes whether the government as a whole
- 17 -

could have acted differently . . . And second, the government is not persuasive in attempting to convince that implementing the plaintiffs' proposals would entail great expense. The government's only support is a portion of the administrative record that explains other proposals were considered and deemed less effective ... Without somehow quantifying the loss of effectiveness, the government cannot show that the [mandate] is the least restrictive means of promoting public health and gender equality in light of the numerous other options available and the myriad of exceptions to it. 2014 WL 117425, at *9 (internal citations omitted). Similarly, the Court finds the Government has not met its burden under RFRA to show that application of the mandate to Plaintiffs is the least restrictive means of furthering its compelling interests. In summary, Plaintiffs have shown they are likely to succeed on their RFRA claim. Having so found, the Court need not address this factor as to Plaintiffs' remaining claims. .Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 445 (1988) ("A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.") (internal citations omitted). C. Irreparable harm Regardless of the strength of its claim on the merits, a movant for preliminary injunctive relief must show a threat of irreparable harm. See Dataphase, 640 F.2d at 113 ("the likelihood that plaintiff ultimately will prevail is meaningless in isolation . . . [and] must be examined in the context of the relative injuries to the parties and the public."). Establishing a likely RFRA violation satisfies the irreparable harm factor. Hobby Lobby, 723 F.3d at 1146. D. Balance of harms The balance of harms analysis examines the harm of granting or denying the injunction upon both of the parties to the dispute and upon other interested parties, including the public. Noodles Development, LP v. Ninth Street Partners, LLP, 507 F.Supp.2d 1030, 1038-39 (E.D.Mo. 2007) (internal citations omitted). The Court finds the harm to Plaintiffs without the
- 18 -

injunction outweighs any harm to the Government's interest in carrying out the mandate. As noted in Hobby Lobby, the Government has already granted an exemption from the contraceptive mandate to many religious organizations. And while a preliminary injunction would prevent the Government from requiring that health insurance of Plaintiffs' employees provide coverage for contraceptive services, other coverages required by the Preventative Care Coverage Requirement would not be affected. Colorado Christian Univ., 2014 WL 2804038, at *8. Conversely, absent an injunction, Plaintiffs remain subject to a requirement that likely constitutes a violation of their rights under federal law. Id.; Reaching Souls Intern., Inc., 2013 WL 6804259, at *8. Thus, the balance of equities weighs in favor of Plaintiffs.
D. Public interest Finally, in light of the current legal uncertainty regarding the enforceability of the contraceptive mandate as to nonprofit organizations with religious objections, see, Little Sisters of the Poor v. Sebelius, 134 S.Ct. 1022 (2014) (remanding to the Tenth Circuit and enjoining defendants from enforcing the contraceptive mandate during the pendency of the appeal, so long as plaintiffs submit written objections based on religious beliefs directly to the Secretary of Health and Human Services), the Court finds it in the public interest to preserve the status quo and enjoin enforcement of the mandate until Plaintiffs' claims are resolved. Reaching Souls Intern., 2013 WL 6804259, at *8. Accordingly, IT IS HEREBY ORDERED THAT Plaintiffs Motion for Preliminary Injunction [48] is GRANTED. IT IS FURTHER ORDERED THAT Defendants, their agents, officers, and employees, and all others in active concert or participation with them, are hereby ENJOINED AND
- 19 -

RESTRAINED from any application or enforcement against the Plaintiffs of the substantive requirements at issue in this case imposed by 42 U.S.C. § 300gg-13(a)(4) and its related regulations, including any penalties, fines and assessments for noncompliance with these provisions, until further order of the Court.

cJO~ay Dated this

of June, 2014.

- 20 -

 
 SETTLEMENT AGREEMENT This Settlement Agreement ("Agreement") is made th is 13th day of October 2017, by and between the entities and individuals listed in Exhibit A ("Plaintiffs") and the United States of America, acting by and through Eric D. Hargan, in hi s offic ial capacity as Acting Secretary of Health and Human Services; R. A lexander Acosta, in hi s offic ial capacity as Secretary ofLabor; Steven T. M nuchin, in his official capacity as Secretary of the Treasury; the United States Department of Health and Human Services; the United States Department ofLabor; and the United States Department of the Treasury (the "Government" or the " D epartme nts") (collectively, the " Parties").
R EC ITALS WHEREAS, there is now pending a series of lawsuits listed in Exh ibit B (collectively, the " Litigation'") in which Pla intiffs a llege that the Government has, among other things, vio lated the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb-I et seq., by promulgating and enforcing regulations pursuant to 42 U.S.C. § 300gg-13 that required Plaintiffs to take actions that facilitated the prov is ion, through or in connection with their health plans, of Food and Drug Administration-approved contraceptive methods and abortifacients, as wel I as sterilization procedures and re lated patient education and counseling to which Plaintiffs object on relig ious grounds ("the Objectionable Coverage"). The regulations were found at 26 C.F.R. § 54.98 l 5-27 I 3A (Sept. 14, 20 15), 26 C.F. R. § 54.98 15-27 13(a)(l)(iv) (July 19, 2010), 29 C.F.R. § 2590.7 152713A (Sept. 14, 2015), 29 C.F. R. § 2590.715- 2713(a)(l)(iv) (July 19, 20 10), 45 C.F.R.
I of 10

§ 147.13 1 (Sept. 14, 20 15), and 45 C.F.R. § 147.l30(a)(l)(iv) (July 19, 20 10) (the ·' Regulations' ').
\\'HEREAS, the Departments of Hea lth and Huma n Services, Labor, and T reasury have issued new regulations afford ing Plaintiffs an exemption. 82 Fed. Reg. 47.792 (Oct. 13, 20 17), available at https://www.gpo.gov/ fd sys/pkg/F R-20 17-I 013/pd f/2 017-21851 .pdf.
WHEREAS, those new regulations state that " requiring certain objecting entities or indiv idua ls to choose between the Mandate, the accommodatio n, o r penalties fo r noncompliance imposes a substantia l burden on relig ious exercise under RFRA," that " the application of the Mandate to certa in o bjecting employers [i]s [not] necessary to serve a compelli ng governmental interest,"' and that "alternati ve approaches can further the interest the Departments prev ious ly identified behind the Mandate." 82 Fed. Reg. 47,792, 4 7,800. 47,806 (O ct. 13, 20 17), available at https://www.gpo.gov/fdsys/pkg/FR-20 17- 1013/pdf/20 17-2 185 1.pdf.
WH EREAS, recent Executi ve Orders establish that it is the po licy of the Government •·to vigorous ly enfo rce Federal law's robust protecti ons for re ligious freed om." and to '·exercise al l authority and discretion available ... to waive, defer, grant exem ptio ns from, o r delay the implementation o f any provision o r req uire ment of the [Affordab le Ca re] Act that wou ld impose ... a cost, fee, tax, pena lty, o r regulatory burden on ... health insurers, ... [o r] purchasers of hea lth insurance ." Executi ve Order 13798, Promoting Free Speech and Religio us Liberty 82 Fed. Reg.2 1,675 (May4, 20 17); Executi ve
2of 10

Order 13765, Minimizing the Economic Burden on the Patient Protectio n and Affordable Care Act Pending Repeal 82 Fed. Reg. 8,351 (Jan. 20, 2017).
WHEREAS, after yea rs of liti gatio n, the Supreme Court considered the claims m these cases and, instead of reso lving the legal issues, remanded the cases to allow the parties to "resolve any o utstanding issues between them." Zubik v. Burwell, 136 S. Ct. 1557, 1560(2016).
WHEREAS, the Supreme Court's remand orders provided that "the Government may not impose taxes o r penalties on [Plaintiffs] for fa il ure to provide the ... notice" required by the Regu lations. Id. at 1561.
WHEREAS, the new regulations, the Supreme Court's remand order, and the President's Executive Orders have placed this litigation in an extraordi nary posture.
WHEREAS, it is the desire of the Parties to resolve finally and permanently a ll disputes, asserted or unasserted, arising out o f, or related to the matters set forth , a lleged , embraced by, o r otherwi se referred to in the Litigation.
NOW THEREFORE, in consideration of the Rec itals and mutual promises contained herein, including the discontinuation of the pending Litigation, and fo r other good and valuable consideration hereby deemed rece ived , the Parties agree as follows :
TERMS OFAGREEMENT
I. The Paities agree that, under the Supreme Court's decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), the Affordable Care Act's "contraceptive mandate." if applied as set out in 26 C.F.R. § 54.98 l 5-27 l 3(a)(l )(iv) (July 19, 2010), 29 C.F.R. §2590.715- 2713(a)(l)(iv) (July 19, 20 10), and 45 C.F.R. § 147.130(a)( l)( iv) (Ju ly
3of10

19, 2010), would .. impose(] a substantial burden on [Plaintiffs'] exercise of religion," id. at 2779, and "violate[] RFRA," id. at 2785. The Government therefore agrees that the "contraception mandate" as described in Hobby lobby cannot be legal ly enforced. under RFRA, against Plaintiffs or their health plans.
2. The Government agrees, with respect to all Plaintiffs, to abide by the terms of the permanent injunction in Zubik v. Sebelius, 13-cv- 1459, l3-cv-303. 20 13 WL 6922024 (W.D. Pa. Dec. 20, 20 13), as it relates to the Objectionable Coverage. The Government accordingly will treat Plaintiffs and their health plans, including their insurance issuers and/or third party administrators in connection with those health plans, as exempt from the Regulations or any materially similar regulation or agency policy. A materially similar regulation or agency policy includes any requirement that Plaintiffs, their insurance issuers, or their third-pa11y administrators provide any of the Objectionable Coverage through or in connection with Plaintiffs' health plans, wh ich means:
a. Plainti ffs (and their insurers and third-party administrators acting in connection with Plaintiffs' health plans) may provide health coverage without the Objectionable Coverage, and no procedure for providing any of the Objectionable Coverage may require any action by Plaintiffs;
b. If the Objectionable Coverage is provided, it may not be provided as part of any health plan sponsored by Plaintiffs, but instead must be provided through a separate and distinct health plan or other arrangement that is separate and distinct from Plaintiffs' health plan;
4of10

c. Plaintiffs or the ir health plans may not be requ ired to pay fo r the provision of the Objectionable Coverage, either directly or indirectly (though Plai ntiffs are not excused from paying generally appl icable taxes);

d. An insurance or health plan card issued in conjunction with Plaintiffs ' hea lth plans may not be used by any person to obtain any of the products or services included within the Objecti onab le Coverage, or payment or reimbursement therefor:

e. No person may receive the Objectionable Coverage as an automatic consequence of enro llment in any health plan sponsored by Plaintiffs;

f.

If the Government seeks to prov ide the Objectionable Coverage to individuals

partic ipating in Plaintiffs' health plans, such provis ion may only be through

separate enrollments by those individuals in a separate and distinct hea lth pl an

or other separate and disti nct arrangement to obtain the Objectionable Coverage;

a nd

g. Any communications regarding the Objectionable Coverage, other than disc losures in plan documents required by federal law that the Obj ectionable Coverage is not covered by the plan or notice provided for in foo tnote I of this agreement, must be separate from communications relating to Plaintiffs' health plans.

3. The Government further agrees to withd raw any letters sent to Plaintiffs· issuers and/or third-party admini strators. pursuant to 29 C.F.R. §2590.715-27 13A and 45

5 of I0

C.F. R. § 147.1 3 1, as they re late to the provision of any of the Objectionable Coverage with in 14 days of the effective date of this agreement. 1
4. The Government furth er agrees, in light of interim relief ordered by several courts. including the Supreme Court in Zubik, that neither Plaintiffs that are party to this Agreement nor their health plans, insurers, or third-party administrators acting in connection with Plainti ffs' health plans shall be subject to any penalties or other adverse consequences, since August 20 11 , as a result of their non-compIiance with any law or regulati on requiring the provision of the Objectionable Coverage that the government is prohibited from enforcing by the terms of this agreement.
5. Notwithstanding this Agreement, the Plaintiffs retain their full legal rights to challenge any new law, regulation, or other requirement that the government may enact or impose relating to the provision of Objectionable Coverage and to challenge or defend against such action on any grounds they choose (including the Constitution, federal law, and/or this Agreement). Nothing herein shall be construed as an admission or indication that any law, regulation, or other requirement wou ld be lawful or unobj ectionable to Plaintiffs.
6. The Parties agree to resolve all proceedings identified above and to fil e such papers as are necessary to terminate the Litigation. In all cases where appeals are current ly pending, the parties will file dismissals of appea l under Federal Rule of Appellate Procedure
1 The effective date of the withdrawal may be contingent on proper notice being given to participants. If contraception coverage is currently being offered by an issuer or third-party adm inistrator. the cessation of coverage wou ld be effective no sooner than the first day of the first plan year that begins thirty days after the date of this Settlement Agreement (to allow for the provision of notice to plan participants in cases where contraceptive bene fits will no longer be provided). Alternatively, sixty-days advance notice may be given pursuant to 42 U.S.C. § 300ggl 5(d)(4) if app licab le.
6of 10

42(b). After the appea ls are dism issed, the parties agree that they wil ljointly file stipulations of dismissal or motions fo r dismissa l under Federa l Rule of Civ il Procedure 41 (a), except in cases where there is a final judgment in the district court. This agreement shall not be effective until the Parties fil e dismissals of all appeals currently pending.
7. The Government agrees to pay Plaintiffs $3 million in costs and fees . 8. The Parties agree that this Agreement constitutes a good-fa ith settlement of the Litigation for good and va luable consideration and acknowledge that it is entered into freely and voluntarily. 9. The Parties further agree that thi s Agreement has been full y read and understood by them, and that each of them has received independent legal advice from their respective attorney(s) as to the effect and import of its prov isions. The Parties furth er agree that this Agreement is being entered into for the express purpose and intention of mak ing and entering inco a full and final compromise, adjustment, and settlement of all c laims which were or could have been asserted in the Litigation, whether or not referred to therein. I0. This Agreement constitutes the sole and entire agreement between Plaintiffs and the Government. and supersedes all prior agreements, negotiations, and discuss ions between the Parties with respect to the subject matter covered hereby. It is express ly understood and agreed that this Agreement may not be altered, amended, waived, mod ified, or otherwise changed except by writing, du ly executed by authorized representatives of Pla intiffs and the Gove rnment, respectively. The Parties furth er acknowledge and agree that they wi ll make no claim at any time or place that this Agreement has been orally supp lemented, mod ified, or altered.
7of 10

11. AII signatories represent that they have authority to enter into this Agreement on behalf of the ir respective clients.
12. This Agreement may be executed in counterparts. IN WITNESS WHEREOF, thi s Agreement is executed as of the date and year first indicated above.
8 of10

of!O

ON BEHALF OF THE GOVERNM ENT: Deputy Assistant Attorney General Civil Division, U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, District of Columbia 20530 Counsel.for Defendants
10 of10

EXHIBIT A

EXHIBIT A
The term "Plaintiffs," as used in the attached settlement agreement includes the fo llowing organ izations and individuals; their subsidi ari es, a ffili ates, and s uccessors; and re lated entities that offer coverage through the health plan of any signatory:
• The Roman Catholic Archdiocese of New York • The Roman Catholic Diocese of Rockville Centre, New York • Catholic Health Care System • Catholic Health Services of Long Island • Cardinal Spe llm an High School • Monsignor Farrell High School • Most Reverend David A. Zubik • Roman Catho lic Diocese of Pittsburgh • Catholic Charities of the Diocese of Pittsburgh, Inc. • Most Reverend Lawrence T. Persico • Roman Catholic Diocese of Erie • St. Martin Center, Inc. • Prince of Peace Center, Inc. • Erie Catho li c Preparatory School • Most Reverend Lawrence Brandt • Most Reverend Edward Matesic • Diocese of Greensburg • Catholic Charities of the Diocese of Greensburg • St. John the Evangelist Regional Catho lic School • Catho lic Diocese of Beaumont • Catholi c Charities of Southeast Texas • Catho li c Chari ties, Diocese of Fort Worth, Inc. • Uni versity of Dallas • Catholic Diocese of Biloxi, Inc.

• The Most Reverend Roger P. Morin, Bishop and President of The Cathol ic Diocese of Biloxi, Inc. and hi s successors in office, as Trustee fo r and on behalf of the Resurrection Catholic School and the Sacred Heart Catho lic School.
• De L'Eppe Deaf Center, Inc. • Catholic Social and Community Services, Inc. of Biloxi • Catholic Diocese of Jackson • The Most Reve rend Joseph N. Latino, Bishop and Chief Executive Officer of the
Catholic Diocese of Jackson, and his successors in office, in accordance with the discipline and government of the Roman Catho lic Church;
• Vicksburg Catho lic Schoo l, Inc. • St. Joseph Catholic School • Catholic Charities, Inc. of Jackson • St. Dominic-Jackson Memorial Hospi tal
• Catholic Diocese of Nashville
• Catholic Charities of Tennessee, Inc.
• Camp Marymount, Inc. • St. Mary Villa, Inc. • Mary, Queen of Angels, Inc.
• St. Cecilia Congregation • Aquinas College
• Michigan Catholic Conference
• Catholic Famil y Services d/b/a Catholic Chari ties Diocese of Kalamazoo • Franciscan Universi ty of Steubenville
• University of Notre Dame • Diocese of Fort Wayne-South Bend, Inc. • Catholic Charities of the Diocese of Fort Wa yne-South Bend, Inc. • St. Anne Home of the Diocese off0 11 Wayne-South Bend, Inc. • Franciscan All iance, Inc. • Specialty Physicians of Illinois, LLC • University of Sa int Francis of Fort Wayne, Ind iana, Inc.

• Our Sunday Visitor, Inc. • Archdiocese of St. Louis • Catholic Charities of St. Louis • Diocese of Cheyenne • Catho li c Charities of Wyoming • St. Joseph's Children's Home • St. Anthony Tri-Parish School (a.k.a, St. Anthony's Tri-Parish Catholic School) • Wyoming Catholic College • The Archdi ocese of Atlanta, an association of churches and schools • Archbishop Wilton 0. Gregory • Catholic Education of North Georgia, Inc. • CathoIic Charities of the Archdiocese of Atlanta, Inc. • The Roman Catho lic Diocese of Savannah; • The Most Rev. Gregory J. Hartmayer, OFM Conv., as Bishop and his successors in
office. • Donald W. Wuerl , Roman Catholic Archbishop of Washi ngton, and his s uccessors in
office, in accordance with the discipline and government of the Roman Catholic Church, a corporation sole (the Archdiocese of Washington) • Consortium of Catholic Academies of the Archdiocese of Washington, Inc. • Archbishop Can·o ll Hi gh School, Inc. • Don Bosco Cristo Rey High School of the Archdiocese of Washington, Inc. • Mary of Nazareth Elementary School, Inc. • Catholic Charities of the Archdiocese of Washington , Inc. • Victory Housing, Inc. • The Catholic Information Center, Inc. • The Catholic University of America • Thomas Aqu inas College

EXHIBITB

E XHIBIT B

District Court Roman Catholic Archdiocese ofN. Y. v. Sebelius , No. I2-cv-2542 (E.D.N.Y.). Zubik v. Sebelius,No. 13-cv-1459 (W.D. Pa.).
Persico v. Sebelius, No. l 3-cv-0303 (W.D. Pa.)
Brandl v. Burwell. , No. I4-cv-681 (W.D. Pa.).

Court of Appeals Catholic Health Care Sys. v. Burwell, No. 14-427, (2d Cir.)
Zubik v. Sec'y US Dep't of Health & Human Servs. , Nos. 14-1376, 14-1377 (3d Cir.) Brandl v. Burwell, Nos. 14-4087 & 14-3663 (3d Cir.)

Catholic Diocese ofBiloxi Inc. , et al. v. Burwell, No. l 4-cv-00146 (S.D. Miss.). Universily ofDallas v. Burwell, No. l 2-cv-00314 (N. D. Texas) Catholic Diocese ofBeaumont v. Sebelius, No. I :13-cv-709 (E.D. Texas) Michigan Catholic Co1?ference v. Sebelius, No. l 3-cv-1247 (W.D. Mich.) Catholic Diocese ofNashville v. Sebelius, No. 3:13-01303 (M.D . Tenn.)
Franciscan University a_(Steubenville v. Sebelius, No. 12-CV-440 (S.D. Ohio) University ofNotre Dame v. Sebelius No. 13-cv- 1276 (N.D. Ind.)
Diocese ofFt. Wayne-South Bend v. Burwell, No. 12-cv- 159, (N.D. Ind. 2013). Archdiocese ofSt. Louis v. Burwell, No. I3-cv-2300 (E.D. Mo.).

No ne
Catholic Diocese ofBeaumont v. Burwell, Nos. 14-40212, 14-1024 1, 14-1066 I. (5th Cir.),
Michigan Catholic Conference v. Burwell, Nos. 13-2723, 13-6640 (6th Cir.).
None
University ofNotre Dame v. Sebelius, No. 13-3853 (7th Cir.). Diocese ofFt. Wayne-South Bend v. Bunvell, No. 14-1431 (7th Cir.) Archdiocese ofSt. Louis, et al v. Burwell, No. 14-3016 (8th Cir.)

Diocese ofCheyenne v. Sebelius, No. I4-cv-00021 (0. Wyo.) Roman Catholic Archdiocese ofAtlanta v. Sebelius , No. 12-cv-03489 (N.0. Ga.). Roman Catholic Archbishop o.fWashington v. Sebelius, No. l 3-cv-144 l (0 .0.C.).

Diocese ofCheyenne v. Burwell, No. 14-8040 (10th Cir.). Roman Catholic Archdiocese ofAtlanta v. Burwell, Nos. 14-12890, 14-13239 (11th Cir.). Roman Catholic Archbishop ofWashington v. Burwell, Nos. 13-5371 , 14-5021 (0.C. Cir.)

2

 
 Case: 4:13-cv-2300 As of: 04/04/2018 09:39 PM CDT 1 of 10
U.S. District Court Eastern District of Missouri (St. Louis) CIVIL DOCKET FOR CASE #: 4:13−cv−02300−JAR

CLOSED

Archdiocese of St. Louis et al v. Kathleen Sebelius et al. Assigned to: District Judge John A. Ross Related Case: 4:12−cv−00924−JAR Cause: 05:702 Administrative Procedure Act
Plaintiff

Date Filed: 11/14/2013 Date Terminated: 10/23/2017 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Archdiocese of St. Louis

represented by Brian J. Murray JONES DAY 77 W. Wacker Drive Suite 3500 Chicago, IL 60601−1692 312−869−1570 Fax: 312−782−8585 Email: bjmurray@jonesday.com

Carol A. Hogan JONES DAY 77 W. Wacker Drive Suite 3500 Chicago, IL 60601−1692 312−269−4241 Fax: 312−782−8585 Email: chogan@jonesday.com ATTORNEY TO BE NOTICED

Daniel E. Reidy JONES DAY 77 W. Wacker Drive Suite 3500 Chicago, IL 60601−1692 312−269−4140 Fax: 312−782−8585 Email: dereidy@jonesday.com ATTORNEY TO BE NOTICED

Dennis Murashko JONES DAY 77 W. Wacker Drive Suite 3500 Chicago, IL 60601−1692 312−269−4121 Fax: 312−782−8585 Email: dMurashko@jonesday.com

Mark P. Rotatori JONES DAY 77 W. Wacker Drive Suite 3500 Chicago, IL 60601−1692 312−269−4294 Fax: 312−782−8585 Email: mprotatori@jonesday.com ATTORNEY TO BE NOTICED

Plaintiff Catholic Charities of St. Louis

represented by Brian J. Murray (See above for address)

Case: 4:13-cv-2300 As of: 04/04/2018 09:39 PM CDT 2 of 10

Carol A. Hogan (See above for address) ATTORNEY TO BE NOTICED
Daniel E. Reidy (See above for address) ATTORNEY TO BE NOTICED
Dennis Murashko (See above for address)
Mark P. Rotatori (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Kathleen Sebelius in her official capacity as Secretary of the U.S. Department of Health and Human Services,
Defendant Thomas E. Perez in his official capacity as Secretary of the U.S. Department of Labor,
Defendant Jacob J. Lew in his official capacity as Secretary of the U.S. Department of the Treasury,
Defendant U.S. Department of Health and Human Services
Defendant U.S. Department of Labor
Defendant U.S. Department of Treasury

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

Case: 4:13-cv-2300 As of: 04/04/2018 09:39 PM CDT 3 of 10

Amicus American Civil Liberties Union
Amicus American Civil Liberties Union of Missouri

represented by Jennifer Lee AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street 18th Floor New York, NY 10004 212−549−2633 Fax: 212−549−2650 Email: jlee@aclu.org LEAD ATTORNEY
Brigitte Amiri AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street 18th Floor New York, NY 10004 212−549−2633 Fax: 212−549−2650 Email: bamiri@aclu.org ATTORNEY TO BE NOTICED
Daniel I. Mach AMERICAN CIVIL LIBERTIES UNION FOUNDATION 915 15th Street, NW 6th Floor Washington, DC 20005 202−548−6604 Fax: 202−546−0738 Email: dmach@aclu.org ATTORNEY TO BE NOTICED
represented by Anthony E. Rothert AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION 906 Olive St. Suite 1130 St. Louis, MO 63101−1448 314−669−3420 Fax: 314−652−3112 Email: trothert@aclu−mo.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Lee (See above for address) LEAD ATTORNEY
Brigitte Amiri (See above for address) ATTORNEY TO BE NOTICED
Daniel I. Mach (See above for address) ATTORNEY TO BE NOTICED

Date Filed # Docket Text

Case: 4:13-cv-2300 As of: 04/04/2018 09:39 PM CDT 4 of 10

11/14/2013
11/14/2013 11/14/2013 11/14/2013 11/14/2013 11/14/2013 11/14/2013 11/14/2013 11/15/2013 11/15/2013

1 COMPLAINT against defendant Kathleen Sebelius, Thomas E. Perez, Jacob J. Lew, Department of Health and Human Services, Department of Labor, Department of the Treasury with receipt number 0865−4071657, in the amount of $400 Jury Demand,, filed by Archdiocese of St. Louis, Catholic Charities of St. Louis. (Attachments: # 1 Civil Cover Sheet, # 2 Original Filing Form, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons, # 7 Summons, # 8 Summons, # 9 Summons, # 10 Summons)(Rotatori, Mark) (Attachment 2 replaced on 11/14/2013) (DLT). (Entered: 11/14/2013)
2 MOTION for Leave to Appear Pro Hac Vice Mark P. Rotatori. The Certificate of Good Standing was attached.(Filing fee $100 receipt number 0865−4071808) by Plaintiffs Archdiocese of St. Louis, Catholic Charities of St. Louis. (Attachments: # 1 Certificate of Good Standing)(Rotatori, Mark) (Entered: 11/14/2013)
3 DISCLOSURE OF CORPORATION INTERESTS CERTIFICATE by Plaintiff Archdiocese of St. Louis. Parent companies: None, Subsidiaries: None, Publicly held company: None,. (Rotatori, Mark) (Entered: 11/14/2013)
4 DISCLOSURE OF CORPORATION INTERESTS CERTIFICATE by Plaintiff Catholic Charities of St. Louis. Parent companies: None, Subsidiaries: None, Publicly held company: None,. (Rotatori, Mark) (Entered: 11/14/2013)
5 MOTION for Leave to Appear Pro Hac Vice Daniel E. Reidy. The Certificate of Good Standing was attached.(Filing fee $100 receipt number 0865−4071848) by Plaintiffs Archdiocese of St. Louis, Catholic Charities of St. Louis. (Attachments: # 1 Certificate of Good Standing)(Reidy, Daniel) (Entered: 11/14/2013)
6 MOTION for Leave to Appear Pro Hac Vice Carol A. Hogan. The Certificate of Good Standing was attached.(Filing fee $100 receipt number 0865−4071881) by Plaintiffs Archdiocese of St. Louis, Catholic Charities of St. Louis. (Attachments: # 1 Certificate of Good Standing)(Hogan, Carol) (Entered: 11/14/2013)
7 MOTION for Leave to Appear Pro Hac Vice Brian J. Murray. The Certificate of Good Standing was attached.(Filing fee $100 receipt number 0865−4071931) by Plaintiffs Archdiocese of St. Louis, Catholic Charities of St. Louis. (Attachments: # 1 Certificate of Good Standing)(Murray, Brian) (Entered: 11/14/2013)
8 MOTION for Leave to Appear Pro Hac Vice Dennis Murashko. The Certificate of Good Standing was attached.(Filing fee $100 receipt number 0865−4071947) by Plaintiffs Archdiocese of St. Louis, Catholic Charities of St. Louis. (Attachments: # 1 Certificate of Good Standing)(Murashko, Dennis) (Entered: 11/14/2013)
Case Opening Notification: No summonses issued due to pending Pro Hac Vice motions. Judge Assigned: U.S. District Judge John A. Ross. Modified on 11/15/2013 (DLT). (Entered: 11/15/2013)
9 Docket Text ORDER: Re: 2 MOTION for Leave to Appear Pro Hac Vice Mark P. Rotatori. The Certificate of Good Standing was attached.(Filing fee $100 receipt number 0865−4071808) by Plaintiffs Archdiocese of St. Louis, Catholic Charities of St. Louis. (Attachments: # 1 Certificate of Good Standing)(Rotatori, Mark) filed by Archdiocese of St. Louis, Catholic Charities of St. Louis, 6 MOTION for Leave to Appear Pro Hac Vice Carol A. Hogan. The Certificate of Good Standing was attached.(Filing fee $100 receipt number 0865−4071881) by Plaintiffs Archdiocese of St. Louis, Catholic Charities of St. Louis. (Attachments: # 1 Certificate of Good Standing)(Hogan, Carol) filed by Archdiocese of St. Louis, Catholic Charities of St. Louis, 7 MOTION for Leave to Appear Pro Hac Vice Brian J. Murray. The Certificate of Good Standing was attached.(Filing fee $100 receipt number 0865−4071931) by Plaintiffs Archdiocese of St. Louis, Catholic Charities of St. Louis. (Attachments: # 1 Certificate of Good Standing)(Murray, Brian) filed by Archdiocese of St. Louis, Catholic Charities of St. Louis, 5 MOTION for Leave to Appear Pro Hac Vice Daniel E. Reidy. The Certificate of Good Standing was attached.(Filing fee $100 receipt number 0865−4071848) by Plaintiffs Archdiocese of St. Louis, Catholic Charities of St. Louis. (Attachments: # 1 Certificate of Good Standing)(Reidy, Daniel) filed by Archdiocese of St. Louis, Catholic Charities of St. Louis, 8 MOTION for Leave to Appear Pro Hac Vice Dennis Murashko. The Certificate of Good Standing was attached.(Filing fee $100 receipt number 0865−4071947) by Plaintiffs Archdiocese of St. Louis, Catholic Charities of St. Louis. (Attachments: # 1 Certificate of Good

Case: 4:13-cv-2300 As of: 04/04/2018 09:39 PM CDT 5 of 10

11/19/2013 12/10/2013
12/11/2013 12/12/2013 12/12/2013 12/12/2013 12/12/2013 12/12/2013 12/12/2013 12/12/2013 12/12/2013 12/12/2013 01/21/2014
01/21/2014

Standing)(Murashko, Dennis) filed by Archdiocese of St. Louis, Catholic Charities of St. Louis ; ORDERED GRANTED. Signed by District Judge John A. Ross on 11/15/13. (ARL) (Entered: 11/15/2013)
10 Summons Issued (8), as to defendants − All Defendants. The summonses were emailed to mprotatori@jonesday.com. (DLT) (Entered: 11/19/2013)
11 SUMMONS Returned Executed filed by Catholic Charities of St. Louis, Archdiocese of St. Louis. defendantJacob J. Lew served on 12/6/2013, answer due 2/4/2014; Thomas E. Perez served on 11/25/2013, answer due 1/24/2014; Kathleen Sebelius served on 11/25/2013, answer due 1/24/2014; U.S. Department of Labor served on 11/25/2013, answer due 1/24/2014; U.S. Department of Health and Human Services served on 11/25/2013, answer due 1/24/2014; U.S. Department of Treasury served on 12/6/2013, answer due 2/4/2014; Richard G. Callahan served on 11/21/2013, answer due 1/21/2014; Eric H. Holder, Jr served on 11/25/2013, answer due 1/24/2014. (Attachments: # 1 Summons Sebelius, # 2 Summons Perez, # 3 Summons Lew, # 4 Summons HHS, # 5 Summons Labor, # 6 Summons Treasury, # 7 Summons Holder)(Rotatori, Mark) (Entered: 12/10/2013)
***REMARK − atty Mark Rotatori called and instructed to efile executed summons individually. (LAH) (Entered: 12/11/2013)
***REMARK − attorney Mark Rotatori called and instructed to re−efile summons individually linking them to individual defendants. (LGK) (Entered: 12/12/2013)
12 SUMMONS Returned Executed filed by Catholic Charities of St. Louis, Archdiocese of St. Louis on Eric Holder, Attorney General, on 11/25/13. (LGK) (Entered: 12/12/2013)
13 SUMMONS Returned Executed filed by Catholic Charities of St. Louis, Archdiocese of St. Louis by serving Thomas Perez on 11/25/13. (LGK) (Entered: 12/12/2013)
14 SUMMONS Returned Executed filed by Catholic Charities of St. Louis, Archdiocese of St. Louis by serving Jacob Lew on 12/6/13. (LGK) (Entered: 12/12/2013)
15 SUMMONS Returned Executed filed by Catholic Charities of St. Louis, Archdiocese of St. Louis by serving Kathleen Sebelius on 11/25/13. (LGK) (Entered: 12/12/2013)
16 SUMMONS Returned Executed filed by Catholic Charities of St. Louis, Archdiocese of St. Louis by serving U. S. Department of Treasury on 12/6/13. (LGK) (Entered: 12/12/2013)
17 SUMMONS Returned Executed filed by Catholic Charities of St. Louis, Archdiocese of St. Louis by serving the U.S. Department of Labor on 11/25/13. (LGK) (Entered: 12/12/2013)
18 SUMMONS Returned Executed filed by Catholic Charities of St. Louis, Archdiocese of St. Louis by serving United States Department of Health and Human Services on 11/25/13. (LGK) (Entered: 12/12/2013)
19 SUMMONS Returned Executed filed by Catholic Charities of St. Louis, Archdiocese of St. Louis by serving Richard Callahan, U.S. Attorney, on 11/21/13. (LGK) (Entered: 12/12/2013)
20 MOTION for Extension of: Time to Respond to Complaint by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, U.S. Department of Labor, U.S. Department of Health and Human Services, U.S. Department of Treasury. (Bennett, Michelle) (Entered: 01/21/2014)
21 Docket Text ORDER: Re: 20 MOTION for Extension of: Time to Respond to Complaint by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, U.S. Department of Labor, U.S. Department of Health and Human Services, U.S. Department of Treasury. (Bennett, Michelle) filed by U.S. Department of Labor, U.S. Department of Treasury, Kathleen Sebelius, Jacob J. Lew, Thomas E. Perez, U.S. Department of Health and Human Services − GRANTED Signed by District Judge John A. Ross on 1/21/14. (LAH) (Entered: 01/21/2014)

Case: 4:13-cv-2300 As of: 04/04/2018 09:39 PM CDT 6 of 10

01/22/2014 01/22/2014 01/22/2014 01/23/2014
01/23/2014 01/23/2014 01/23/2014 01/23/2014 01/23/2014 01/23/2014
01/24/2014

22 NOTICE Filing of Administrative Record: by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, U.S. Department of Labor, U.S. Department of Health and Human Services, U.S. Department of Treasury (Attachments: # 1 Index of Administrative Record, # 2 Certification of Administrative Record)(Bennett, Michelle) (Entered: 01/22/2014)
23 MOTION for Leave to File in Excess of Page Limitation by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, U.S. Department of Labor, U.S. Department of Health and Human Services, U.S. Department of Treasury. (Bennett, Michelle) (Entered: 01/22/2014)
24 MOTION to Dismiss Case , MOTION for Summary Judgment by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, U.S. Department of Labor, U.S. Department of Health and Human Services, U.S. Department of Treasury. (Attachments: # 1 Memorandum in Support, # 2 Statement of Material Facts)(Bennett, Michelle) (Entered: 01/22/2014)
25 Docket Text ORDER: Re: 23 MOTION for Leave to File in Excess of Page Limitation by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, U.S. Department of Labor, U.S. Department of Health and Human Services, U.S. Department of Treasury. (Bennett, Michelle) filed by U.S. Department of Labor, U.S. Department of Treasury, Kathleen Sebelius, Jacob J. Lew, Thomas E. Perez, U.S. Department of Health and Human Services − GRANTED Signed by District Judge John A. Ross on 1/23/14. (LAH) (Entered: 01/23/2014)
26 MOTION for Leave to Appear Pro Hac Vice Jennifer Lee. The Certificate of Good Standing was attached.(Filing fee $100 receipt number 0865−4160842) by Amicus American Civil Liberties Union. (Attachments: # 1 Certificate of Good Standing)(Lee, Jennifer) (Entered: 01/23/2014)
27 MOTION for Leave to Appear Pro Hac Vice Brigitte Amiri. The Certificate of Good Standing was attached.(Filing fee $100 receipt number 0865−4160896) by Amicus American Civil Liberties Union. (Attachments: # 1 Certificate of Good Standing)(Amiri, Brigitte) (Entered: 01/23/2014)
28 MOTION for Leave to Appear Pro Hac Vice Daniel Mach. The Certificate of Good Standing was attached.(Filing fee $100 receipt number 0865−4160915) by Amicus American Civil Liberties Union. (Attachments: # 1 Certificate of Good Standing)(Mach, Daniel) (Entered: 01/23/2014)
29 ENTRY of Appearance by Anthony E. Rothert for Amicus American Civil Liberties Union of Missouri. (Rothert, Anthony) (Entered: 01/23/2014)
30 MOTION to File Amicus Brief by Amicus Parties American Civil Liberties Union, American Civil Liberties Union of Missouri. (Attachments: # 1 Attachment Proposed Amicus Brief)(Lee, Jennifer) (Entered: 01/23/2014)
31 ADMINISTRATIVE RECORD ELECTRONIC RECORD (THREE CDs) re 22 NOTICE OF FILING OF CERTIFIED ADMINISTRATIVE RECORD by Defendants Richard G. Callahan, Eric H. Holder, Jr, Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, U.S. Department of Labor, U.S. Department of Health and Human Services, U.S. Department of Treasury. (Please note CD's are filed and maintained by Clerk's Office.) (ARL) (Entered: 01/24/2014)
32 Docket Text ORDER: Re: 28 MOTION for Leave to Appear Pro Hac Vice Daniel Mach. The Certificate of Good Standing was attached.(Filing fee $100 receipt number 0865−4160915) by Amicus American Civil Liberties Union. (Attachments: # 1 Certificate of Good Standing)(Mach, Daniel) filed by American Civil Liberties Union, 26 MOTION for Leave to Appear Pro Hac Vice Jennifer Lee. The Certificate of Good Standing was attached.(Filing fee $100 receipt number 0865−4160842) by Amicus American Civil Liberties Union. (Attachments: # 1 Certificate of Good Standing)(Lee, Jennifer) filed by American Civil Liberties Union, 27 MOTION for Leave to Appear Pro Hac Vice Brigitte Amiri. The Certificate of Good Standing was attached.(Filing fee $100 receipt number 0865−4160896) by Amicus American Civil Liberties Union. (Attachments: # 1 Certificate of Good Standing)(Amiri, Brigitte) filed by American Civil Liberties Union ; ORDERED GRANTED. Signed by District Judge John A. Ross on 1/24/14. (ARL) (Entered: 01/24/2014)

Case: 4:13-cv-2300 As of: 04/04/2018 09:39 PM CDT 7 of 10

01/24/2014 01/24/2014 02/04/2014 02/05/2014
02/26/2014 02/26/2014 02/26/2014 02/27/2014 02/28/2014
04/02/2014 04/02/2014

33 Docket Text ORDER: Re: 30 MOTION to File Amicus Brief by Amicus Parties American Civil Liberties Union, American Civil Liberties Union of Missouri. (Attachments: # 1 Attachment Proposed Amicus Brief)(Lee, Jennifer) filed by American Civil Liberties Union, American Civil Liberties Union of Missouri ; ORDERED GRANTED. Signed by District Judge John A. Ross on 1/24/14. (ARL) (Entered: 01/24/2014)
34 BRIEF IN SUPPORT of Motion re 24 MOTION to Dismiss Case MOTION for Summary Judgment filed by Amicus Parties American Civil Liberties Union, American Civil Liberties Union of Missouri. (ARL) (Entered: 01/24/2014)
35 MOTION for Leave to File in Excess of Page Limitation in Response to Defendants' Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, MOTION for Extension of Time to File Response/Reply to Defendants' Motion to Dismiss, or in the Alternative, Motion for Summary Judgment by Plaintiffs Archdiocese of St. Louis, Catholic Charities of St. Louis. (Murashko, Dennis) (Entered: 02/04/2014)
36 Docket Text ORDER: Re: 35 MOTION for Leave to File in Excess of Page Limitation in Response to Defendants' Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, MOTION for Extension of Time up to and including February 26, 2014, to File Response/Reply to Defendants' Motion to Dismiss, or in the Alternative, Motion for Summary Judgment by Plaintiffs Archdiocese of St. Louis, Catholic Charities of St. Louis. (Murashko, Dennis) ; ORDERED GRANTED. Signed by District Judge John A. Ross on 2/5/14. (KXS) (Entered: 02/05/2014)
37 MOTION for Summary Judgment by Plaintiffs Archdiocese of St. Louis, Catholic Charities of St. Louis. (Rotatori, Mark) (Entered: 02/26/2014)
38 MEMORANDUM in Support of Motion re 37 MOTION for Summary Judgment and Opposition to Defendants' Motion to Dismiss, or in the Alternative, Motion for Summary Judgment filed by Plaintiffs Archdiocese of St. Louis, Catholic Charities of St. Louis. (Attachments: # 1 Attachment Plaintiffs' Statement of Undisputed Material Facts in Support of MSJ, # 2 Attachment Plaintiffs' Responses and Objections to Defendants' Statement of Material Facts)(Rotatori, Mark) (Entered: 02/26/2014)
39 Plaintiffs' Appendix in Support re 38 of Plaintiffs' Opposition to Defendants' Motion to Dismiss, or, in the Alternative, for Summary Judgment, and Motion for Summary Judgment by Plaintiffs Archdiocese of St. Louis, Catholic Charities of St. Louis. (Attachments: # 1 Appendix Part 1 of 3, # 2 Appendix Part 2 of 3, # 3 Appendix Part 3 of 3)(Rotatori, Mark) Modified on 3/14/2014 to term entry as a Motion. (ARL). (Entered: 02/26/2014)
40 Consent MOTION for Extension of Time to File Response/Reply by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, U.S. Department of Labor, U.S. Department of Health and Human Services, U.S. Department of Treasury. (Bennett, Michelle) (Entered: 02/27/2014)
41 Docket Text ORDER: Re: 40 Consent MOTION for Extension of Time to File Response/Reply by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, U.S. Department of Labor, U.S. Department of Health and Human Services, U.S. Department of Treasury. (Bennett, Michelle) filed by U.S. Department of Labor, U.S. Department of Treasury, Kathleen Sebelius, Jacob J. Lew, Thomas E. Perez, U.S. Department of Health and Human Services ; ORDERED GRANTED. Signed by District Judge John A. Ross on 2/28/14. (ARL) (Entered: 02/28/2014)
42 Consent MOTION for Leave to File in Excess of Page Limitation by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, U.S. Department of Labor, U.S. Department of Health and Human Services, U.S. Department of Treasury. (Bennett, Michelle) (Entered: 04/02/2014)
43 MEMORANDUM in Opposition re 37 MOTION for Summary Judgment AND Reply in Support of Defs.' Motion to Dismiss or, in the Alternative, for Summary Judgment filed by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, U.S. Department of Labor, U.S. Department of Health and Human Services, U.S. Department of Treasury. (Attachments: # 1 Attachment 1, # 2 Attachment 2, # 3 Defs.' Response to Pls.' Statement of Undisputed Material Facts)(Bennett, Michelle) (Entered: 04/02/2014)

Case: 4:13-cv-2300 As of: 04/04/2018 09:39 PM CDT 8 of 10

04/03/2014
04/04/2014 04/04/2014 04/23/2014 05/08/2014 05/08/2014 05/15/2014 05/16/2014
05/23/2014 05/23/2014 05/30/2014 06/09/2014 06/13/2014

44 Docket Text ORDER: Re: 42 Consent MOTION for Leave to File in Excess of Page Limitation by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, U.S. Department of Labor, U.S. Department of Health and Human Services, U.S. Department of Treasury. (Bennett, Michelle) filed by U.S. Department of Labor, U.S. Department of Treasury, Kathleen Sebelius, Jacob J. Lew, Thomas E. Perez, U.S. Department of Health and Human Services ; ORDERED GRANTED. Signed by District Judge John A. Ross on 4/3/14. (LGK) (Entered: 04/03/2014)
45 Consent MOTION for Extension of Time to File Response/Reply and Motion to File Overlength Reply Memorandum by Plaintiffs Archdiocese of St. Louis, Catholic Charities of St. Louis. (Murashko, Dennis) (Entered: 04/04/2014)
46 Docket Text ORDER: Re: 45 Consent MOTION for Extension of Time up to and including April 23, 2014, to File Response/Reply and Motion to File Overlength Reply Memorandum by Plaintiffs Archdiocese of St. Louis, Catholic Charities of St. Louis. (Murashko, Dennis) ; ORDERED GRANTED. Signed by District Judge John A. Ross on 4/4/14. (KXS) (Entered: 04/04/2014)
47 REPLY to Response to Motion re 37 MOTION for Summary Judgment filed by Plaintiffs Archdiocese of St. Louis, Catholic Charities of St. Louis. (Rotatori, Mark) (Entered: 04/23/2014)
48 MOTION for Preliminary Injunction by Plaintiffs Archdiocese of St. Louis, Catholic Charities of St. Louis. (Rotatori, Mark) (Entered: 05/08/2014)
49 MEMORANDUM in Support of Motion re 48 MOTION for Preliminary Injunction filed by Plaintiffs Archdiocese of St. Louis, Catholic Charities of St. Louis. (Rotatori, Mark) (Entered: 05/08/2014)
50 Consent MOTION for Extension of Time to File Response/Reply as to 48 MOTION for Preliminary Injunction by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, U.S. Department of Labor, U.S. Department of Health and Human Services, U.S. Department of Treasury. (Bennett, Michelle) (Entered: 05/15/2014)
51 Docket Text ORDER: Re: 50 Consent MOTION for Extension of Time to File Response/Reply as to 48 MOTION for Preliminary Injunction by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, U.S. Department of Labor, U.S. Department of Health and Human Services, U.S. Department of Treasury ORDERED GRANTED. Signed by District Judge John A. Ross on 5/16/14. (JWD) (Entered: 05/16/2014)
52 MEMORANDUM in Opposition re 48 MOTION for Preliminary Injunction filed by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, U.S. Department of Labor, U.S. Department of Health and Human Services, U.S. Department of Treasury. (Bennett, Michelle) (Entered: 05/23/2014)
53 Second MOTION to Dismiss for Lack of Jurisdiction by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, U.S. Department of Labor, U.S. Department of Health and Human Services, U.S. Department of Treasury. (Bennett, Michelle) (Entered: 05/23/2014)
54 REPLY to Response to Motion re 48 MOTION for Preliminary Injunction , 53 Second MOTION to Dismiss for Lack of Jurisdiction REPLY AND RESPONSE filed by Plaintiffs Archdiocese of St. Louis, Catholic Charities of St. Louis. (Attachments: # 1 Exhibit A)(Rotatori, Mark) (Entered: 05/30/2014)
55 REPLY to Response to Motion re 53 Second MOTION to Dismiss for Lack of Jurisdiction filed by Defendants Richard G. Callahan, Eric H. Holder, Jr, Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, U.S. Department of Labor, U.S. Department of Health and Human Services, U.S. Department of Treasury. (Bennett, Michelle) (Entered: 06/09/2014)
56 NOTICE Supplemental Authority: by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, U.S. Department of Labor, U.S. Department of Health and Human Services, U.S. Department of Treasury re 24 MOTION to Dismiss Case MOTION for Summary Judgment , 52 Memorandum in Opposition to Motion, (Bennett, Michelle) (Entered: 06/13/2014)

Case: 4:13-cv-2300 As of: 04/04/2018 09:39 PM CDT 9 of 10

06/26/2014
06/30/2014 06/30/2014
08/28/2014 08/29/2014
09/03/2014
09/03/2014 10/08/2014
11/12/2015 05/24/2016 06/23/2016

57 NOTICE Supplemental Authorities: by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, U.S. Department of Labor, U.S. Department of Health and Human Services, U.S. Department of Treasury re 24 MOTION to Dismiss Case MOTION for Summary Judgment , 52 Memorandum in Opposition to Motion, (Attachments: # 1 Eternal Word Television Network v. Burwell, ECF No. 61, # 2 Eternal Word Television Network v. Burwell, ECF No. 62, # 3 Wheaton College v. Burwell, # 4 Catholic Charities of the Archdiocese of Philadelphia v. Burwell)(Bennett, Michelle) (Entered: 06/26/2014)
58 NOTICE by Plaintiffs Archdiocese of St. Louis, Catholic Charities of St. Louis re 57 Notice (Other),, Notice of Supplemental Authority (Attachments: # 1 Exhibit A)(Rotatori, Mark) (Entered: 06/30/2014)
59 MEMORANDUM AND ORDER: IT IS HEREBY ORDERED THAT Plaintiff's Motion for Preliminary Injunction 48 is GRANTED. IT IS FURTHER ORDERED THAT Defendants, their agents, officers, and employees, and all others in active concert or participation with them, are hereby ENJOINED AND RESTRAINED from any application or enforcement against the Plaintiffs of the substantive requirements at issue in this case imposed by 42 U.S.C. § 300gg−13(a)(4) and its related regulations, including any penalties, fines and assessments for noncompliance with these provisions, until further order of the Court. Signed by District Judge John A. Ross on 6/30/14. (JWD) (Entered: 06/30/2014)
60 NOTICE OF APPEAL as to 59 Memorandum & Order,, by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, U.S. Department of Labor, U.S. Department of Health and Human Services, U.S. Department of Treasury. (Entered: 08/28/2014)
61 NOTIFICATION OF APPEAL AND NOA SUPPLEMENT by clerk to USCA regarding 60 Notice of Appeal. Notice of Appeal filed on 08/28/2014 by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, U.S. Department of Labor, U.S. Department of Health and Human Services, U.S. Department of Treasury. NOTIFICATION TO COUNSEL AND PRO SE PARTY: FILE REQUEST FOR TRANSCRIPT WITH DISTRICT COURT CLERKS OFFICE.(DLT) (Entered: 08/29/2014)
62 Initial Notification and or Briefing Schedule from USCA for 60 Notice of Appeal filed by U.S. Department of Labor, U.S. Department of Treasury, Kathleen Sebelius, Jacob J. Lew, Thomas E. Perez, U.S. Department of Health and Human Services. USCA Appeal Number: 14−3016. Method of Appendix due: 14 days from today. Designation of record due: 14 days from today. Appellants Briefs due: 10/14/14... See Briefing Schedule for full details. (Attachment: # 1 Briefing Schedule)(ARL) (Entered: 09/03/2014)
63 Record Transmittal Sheet: The following record has been forwared to: Clerk, US Court of Appeals, Eastern District of Missouri. One yellow expansion file folder marked EO1 holding doucment #31 − Administrative Reocrd on 3CD's. (ARL) (Entered: 09/04/2014)
64 ORDER of USCA as to 60 Notice of Appeal filed by U.S. Department of Labor, U.S. Department of Treasury, Kathleen Sebelius, Jacob J. Lew, Thomas E. Perez, U.S. Department of Health and Human Services USCA Appeal #: 14−3016 The motion to hold this case in abeyance pending the court's decisions in Dordt College v. Burwell, No. 14−2726, and Sharpe Holdings, Inc., v. Burwell, No. 14−1507, has been considered and is granted. The briefing schedule shall nonetheless continue. Appellants' motion for a seven−day extension to file appellants brief is granted. Appellants brief is due October 15, 2014. (LGK) (Entered: 10/08/2014)
65 ORDER of USCA: On the court's own motion, this case will be held in abeyance pending the United States Supreme Court's decision in 14−1418, Zubik v. Burwell and consolidated cases. USCA Appeal #: 14−3016 (KMS) (Entered: 11/12/2015)
66 ORDER of USCA as to 60 Notice of Appeal: The court will continue to hold this matter in abeyance. The parties are directed to file a status report no later than July 1, 2016. USCA Appeal #: 14−3016 (JAB) (Entered: 05/24/2016)
67 LETTER from USCA re status report. USCA Appeal #: 14−3016(JAB) (Entered: 06/23/2016)

Case: 4:13-cv-2300 As of: 04/04/2018 09:39 PM CDT 10 of 10

06/30/2016 08/02/2016 08/05/2016
09/27/2016
12/01/2016 01/11/2017 09/20/2017 10/11/2017
10/11/2017 10/23/2017 10/23/2017 10/25/2017

68 LETTER from USCA USCA Appeal #: 14−3016: The Archdiocese of St. Louis and Catholic Charities of St. Louis are directed to file a status report on or before August 1, 2016. re 60 Notice of Appeal :(KKS) (Entered: 06/30/2016)
69 LETTER from USCA re 60 Notice of Appeal : USCA Appeal #: 14−3016; The status report has been filed and the appeal will remain in abeyance. Please file with this office a status report regarding developments in the case by October 7, 2016. (KKS) (Entered: 08/02/2016)
70 ORDER: IT IS HEREBY ORDERED that Defendants' Motion to Dismiss or, in the Alternative for Summary Judgment (Doc. No. 24 ), Plaintiffs Motion for Summary Judgment (Doc. No. 37 ), and Defendants' Second Motion to Dismiss (Doc. No. 53 ) are DISMISSED without prejudice, subject to refiling following the Eighth Circuit's adjudication of the pending appeal. Signed by District Judge John A. Ross on 8/5/16. (JAB) (Entered: 08/05/2016)
71 LETTER from USCA to Mr. Mark B. Stern U.S. DEPARTMENT OF JUSTICE re 60 Notice of Appeal : USCA Appeal #: 14−3016: The status report due on September 26, 2016, has been filed pursuant to this Court's Order. Please file with this office a status report regarding developments in the case by November 30, 2016.(KKS) (Entered: 09/27/2016)
72 LETTER from USCA re Status Report: USCA Appeal #: 14−3016. The status report due on December 12, 2016 has been filed pursuant to this Court's Order of October 11, 2016. Please file with this office a status report regarding developments in the case by March 3, 2017. (CLO) (Entered: 12/01/2016)
73 LETTER from USCA re 60 Notice of Appeal : USCA Appeal #: 14−3016. Please file with this office a status report regarding developments in the case by March 3, 2017.(CLO) (Entered: 01/11/2017)
74 LETTER from USCA re 60 Notice of Appeal : USCA Appeal #: 14−3016. The latest status report has been filed. Please file with this office a status report regarding developments in the case by November 20, 2017. (CLO) (Entered: 09/20/2017)
75 USCA JUDGMENT as to 60 Notice of Appeal filed by U.S. Department of Labor, U.S. Department of Treasury, Kathleen Sebelius, Jacob J. Lew, Thomas E. Perez, U.S. Department of Health and Human Services. Appellant's motion to dismiss the appeal is granted. The appeal is hereby dismissed in accordance with the Federal Rules of Appellate Procedure 42(b).The Court's mandate shall issue forthwith. (CLO) (Entered: 10/11/2017)
76 MANDATE of USCA as to 60 Notice of Appeal filed by U.S. Department of Labor, U.S. Department of Treasury, Kathleen Sebelius, Jacob J. Lew, Thomas E. Perez, U.S. Department of Health and Human Services USCA #:14−3016 DISMISSED. (CLO) (Entered: 10/11/2017)
77 STIPULATION − Joint Stipulation of Dismissal by Plaintiffs Archdiocese of St. Louis, Catholic Charities of St. Louis. (Rotatori, Mark) (Entered: 10/23/2017)
78 ORDER: IT IS HEREBY ORDERED that the Clerk of Court is directed to close the case. Signed by District Judge John A. Ross on 10/23/2017. (CLO) (Entered: 10/23/2017)
79 Records Transmittal re 60 Notice of Appeal : USCA Appeal #: 14−3016. The following has been returned from USCA: 1 expandable folder of miscellaneous record.(JAB) (Entered: 10/26/2017)