2:13-cv-11296-PDB-RSW Doc # 1 Filed 03/22/13 Pg 1 of 42 Pg ID 1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

MERSINO MANAGEMENT COMPANY; KAREN A. MERSINO, Owner and Shareholder of Mersino Southwest, LLC and Mersino Enterprises, Inc., and RODNEY A. MERSINO, Owner and Shareholder of Mersino Management Company, Global Pump Company, LLC and Mersino Dewatering, Inc.,

Plaintiffs,

v.
KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; SETH D. HARRIS, Acting Secretary of the United States Department of Labor; UNITED STATES DEPARTMENT OF LABOR; JACK LEW, Secretary of the United States Department of the Treasury; and UNITED STATES DEPARTMENT OF THE TREASURY,

COMPLAINT [Civil Rights Action under 42 U.S.C. § 1983]

Defendants. __________________________________________/

THOMAS MORE LAW CENTER Richard Thompson, Esq. (P21410) Erin Mersino, Esq. (P70886) 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, MI 48106 emersino@thomasmore.org (734) 827-2001 __________________________________________/

COMPLAINT

Now come Plaintiffs Mersino Management Company (hereinafter “Mersino

Management”), Karen A. Mersino, and Rodney A. Mersino (collectively “Plaintiffs”), by and

1

2:13-cv-11296-PDB-RSW Doc # 1 Filed 03/22/13 Pg 2 of 42 Pg ID 2
through undersigned counsel, and bring this Complaint against the above-named Defendants, their employees, agents, and successors in office, and in support thereof state the following upon information and belief:
NATURE OF THE ACTION 1. This is a case about religious freedom. Thomas Jefferson, a Founding Father of our country, principal author of the Declaration of Independence, and our third president, when describing the construct of our Constitution proclaimed, “No provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority.” Letter from Thomas Jefferson, United States Office of the President, to the Soc’y of the Methodist Episcopal Church at New London, Conn. (Feb. 4, 1809) cited in People v. Dejonge, 442 Mich. 266, 278 (1993) (emphasis added). 2. This is a challenge to regulations ostensibly issued under the “Patient Protection and Affordable Care Act” (Pub. L. 111-148, March 23, 2010, 124 Stat. 119) and the “Health Care and Education Reconciliation Act” (Pub. L. 111-152, March 30, 2010, 124 Stat. 1029) (collectively known and hereinafter referred to as the “Affordable Care Act”) that force individuals to violate their deepest held religious beliefs. 3. The Affordable Care Act, through a Mandate from the United States Department of Health and Human Services, attacks and desecrates a foremost tenet of the Catholic Church, as stated by Pope Paul VI in His 1968 encyclical Humanae Vitae, that “any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation, whether as an end or as a means”—including contraception, sterilization, abortion, and abortifacients—is a grave sin.
2

2:13-cv-11296-PDB-RSW Doc # 1 Filed 03/22/13 Pg 3 of 42 Pg ID 3
4. One of the provisions of the Affordable Care Act mandates that health plans “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” and directs the Secretary of the United States Department of Health and Human Services to determine what would constitute “preventive care” under the mandate. 42 U.S.C § 300gg–13(a)(4).
5. Without notice of rulemaking or opportunity for public comment, the United States Department of Health and Human Services, the United States Department of Labor, and the United States Department of Treasury adopted the Institute of Medicine (“IOM”) recommendations in full and promulgated an interim final rule (“the Mandate”), which requires that all “group health plan[s] and . . . health insurance issuer[s] offering group or individual health insurance coverage” provide all FDA-approved contraceptive methods and procedures. 76 Fed. Reg. 46621 (published Aug. 3, 2011); 45 C.F.R. § 147.130.
6. The Mandate requires all insurance issuers (including, e.g. Administration Systems Research Corporation) to provide contraception, sterilization, abortion, and abortifacients in all of its insurance plans, group and individual.
7. Health Resources and Services Administration also issued guidelines adopting the IOM recommendations. (http://www.hrsa.gov/womensguidelines, last visited March 6, 2013).
8. Under the IOM guidelines, the Mandate requires all insurance insurers to provide not only contraception, but also abortion, because certain drugs and devices such as the “morning-after pill,” “Plan B,” and “ella” come within the Mandate’s and Health Resources and Services Administration’s definition of “Food and Drug Administration-approved contraceptive methods” despite their known abortifacient mechanisms of action.
3

2:13-cv-11296-PDB-RSW Doc # 1 Filed 03/22/13 Pg 4 of 42 Pg ID 4
9. The Mandate forces employers and individuals to violate their religious beliefs because it requires employers and individuals to pay for insurance from insurance issuers which fund and directly provide for drugs, devices, and services which violate their deeply held religious beliefs.
10. Since under the Mandate all insurance issuers must provide what the United States Department of Health and Human Services has deemed “preventive care,” employers and individuals are stripped of any choice between insurance issuers or insurance plans to avoid violating their religious beliefs.
11. The United States Department of Health and Human Services in an unprecedented despoiling of religious rights forces religious employers and individuals, who believe that funding and providing for contraception, sterilization, abortion, and abortifacients is wrong, to participate in acts that violate their beliefs and their conscience—and are forced out of the health insurance market in its entirety in order to comply with their religious beliefs.
12. Plaintiffs seek a Preliminary Injunction and Permanent Injunction, enjoining Defendants from implementing and enforcing provisions of the regulations promulgated under the Affordable Care Act, specifically the Mandate. The Mandate violates Plaintiffs’ rights to the free exercise of religion and the freedom of speech under the First Amendment to the United States Constitution, the Religious Freedom Restoration Act, and the Administrative Procedure Act.
13. Plaintiffs also seek a Declaratory Judgment that the regulations promulgated under the Affordable Care Act, specifically the Mandate, violate Plaintiffs’ rights to the free exercise of religion and the freedom of speech under the First Amendment to the United States Constitution, the Religious Freedom Restoration Act, and the Administrative Procedure Act.
4

2:13-cv-11296-PDB-RSW Doc # 1 Filed 03/22/13 Pg 5 of 42 Pg ID 5
14. The Affordable Care Act’s contraception, sterilization, abortion, and abortifacient mandate violates the rights of Plaintiffs Mersino Management, Karen A. Mersino and Rodney A. Mersino.
15. Plaintiff Karen A. Mersino is the owner and shareholder of Plaintiff Mersino Management companies, Mersino Southwest LLC and Mersino Enterprises, Inc.
16. Plaintiff Rodney A. Mersino is the owner and shareholder of Plaintiff Mersino Management, as well as its companies Global Pump Company, LLC, Mersino Dewatering, Inc., and Mersino Enterprises, Inc.
17. Plaintiffs employ approximately 184 full-time employees and are subject to monetary penalties under the Affordable Care Act and are forced under the Mandate by penalty of heavy fines to conduct business in a manner that violates their religious faith by providing and funding contraceptives, sterilization, abortion, and abortifacients, which violates deeply held religious beliefs.
18. Plaintiffs bring this action to vindicate not only their own rights, but also to protect the rights of all Americans who care about our Constitutional guarantees of free exercise of religion and their freedom of speech, as well as the protection of innocent human life.
JURISDICTION AND VENUE 19. This action in which the United States is a defendant arises under the Constitution and laws of the United States. Jurisdiction is conferred on this Court pursuant to 28 U.S.C. §§ 1331 and 1346. 20. Plaintiffs’ claims for declaratory and preliminary and permanent injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202, by Rules 57 and 65 of the Federal Rules of Civil Procedure, by 42 U.S.C. § 2000bb-1, and by the general legal and equitable powers of this Court.
5

2:13-cv-11296-PDB-RSW Doc # 1 Filed 03/22/13 Pg 6 of 42 Pg ID 6
21. Venue is proper under 28 U.S.C. § 1391(e) because this is the judicial district in which Plaintiffs are located.
PLAINTIFFS 22. Plaintiff Mersino Management is incorporated under the laws of the State of Michigan. 23. Plaintiff Mersino Management is registered at 10162 East Coldwater Rd., Davison, Michigan 48446. 24. Plaintiff Mersino Management is treated as a subchapter S corporation for income tax purposes and employs approximately 29 employees. 25. Plaintiff Mersino Management is the management company and provides the insurance for Mersino Dewatering, Inc., Mersino Enterprises, Inc., Global Pump Company, LLC, and Mersino Southwest, LLC. 26. Mersino Dewatering, Inc. is treated as a C corporation for income tax purposes and employs approximately 110 full-time employees. 27. Mersino Enterprises, Inc. is treated as a subchapter S corporation for income tax purposes. 28. Global Pump Company, LLC is treated as a limited liability corporation for income tax purposes and employs approximately 34 full-time employees. 29. Mersino Southwest, LLC is treated as a limited liability corporation for income tax purposes and employs approximately 11 full-time employees. 30. Mersino Management and its companies are subject to the Mandate.
6

2:13-cv-11296-PDB-RSW Doc # 1 Filed 03/22/13 Pg 7 of 42 Pg ID 7
31. Plaintiff Karen A. Mersino is the owner and shareholder of Plaintiff Mersino Management companies Mersino Southwest, LLC and Mersino Enterprises, Inc. Plaintiff Karen A. Mersino is an individual and a citizen of the State of Michigan and the United States.
32. Plaintiff Rodney A. Mersino is the owner and shareholder of Plaintiff Mersino Management, as well as its companies Mersino Dewatering, Inc. and Global Pump, Inc. Plaintiff Rodney A. Mersino is an individual and a citizen of the State of Michigan and the United States.
33. Plaintiffs Karen A. Mersino and Rodney A. Mersino founded their family-owned Mersino Management companies.
34. Plaintiffs are a true example that hard work and faith formulate success. 35. Plaintiff Rodney A. Mersino began his career as an hourly wage construction worker. 36. Plaintiffs Karen A. Mersino and Rodney A. Mersino placed a second mortgage on their family home to start their first company, Mersino Drilling & Dewatering, Inc. 37. Plaintiffs first purchased a used drill rig and a crate of pumping equipment. 38. Plaintiff Rodney A. Mersino worked out of the Plaintiffs’ garage to repair the used equipment and keep the equipment working while running the day to day operations. Plaintiff Karen A Mersino worked on the other aspects of business such as the accounting, marketing and all other office functions. 39. In their decades of work and leadership of Mersino Management companies, Plaintiffs “have remained unwaveringly dedicated to their values of family, hard work and a faith in God and each other.” (http://mersino.com/index.php?mainLevelCurrent=aboutUs&secLevel Current=history, last visited March 6, 2013).
7

2:13-cv-11296-PDB-RSW Doc # 1 Filed 03/22/13 Pg 8 of 42 Pg ID 8
40. Plaintiffs Karen A. Mersino and Rodney A. Mersino display in each of its offices a document written by their oldest son and company Chief Executive Officer, Rodney A. Mersino, Jr. The document lists, first and foremost, Plaintiffs’ core value to “Honor God in all we do by serving our customers and employees with honesty and integrity.” (Exhibit 1).
41. Plaintiffs Karen A. Mersino and Rodney A. Mersino have devoted their lives and resources to Catholicism and furthering Catholic philanthropic causes.
42. Plaintiffs Karen A. Mersino and Rodney A. Mersino are Catholic and follow the teachings of the Catholic faith as defined by the Magisterium (teaching authority) of the Catholic Church.
43. Plaintiffs Karen A. Mersino and Rodney A. Mersino are guided by their religious beliefs.
44. Plaintiffs Karen A. Mersino and Rodney A. Mersino promote and spread Catholic education, Catholic media, community projects, and other Catholic charities.
45. Plaintiffs Karen A. Mersino and Rodney A. Mersino are active members of Legatus, an organization founded in 1987 to bring together the three key areas of a Catholic business leader’s life – Faith, Family and Business.
46. Legatus is the Latin word for “ambassador,” and its members are called upon to become “ambassadors for Christ” in living and sharing their Catholic Faith in their business, professional and personal lives. (http://www.legatus.org/, last visited March 6, 2013).
47. Legatus “is an international organization of practicing Catholic laymen and laywomen, comprised of Chief Executive Officers, Presidents, Managing Partners and Business Owners, with their spouses, from the business community and professional enterprises.” Legatus Amended and Restated International Bylaws § 2.1.
8

2:13-cv-11296-PDB-RSW Doc # 1 Filed 03/22/13 Pg 9 of 42 Pg ID 9
48. Legatus is comprised of over 4,000 members, including 2,124 dues paying members and their member spouses and has a total of 73 chapters in the United States located in 31 states with 3 international chapters.
49. Legatus, its employees, and its members work to follow the teachings of the Catholic faith as defined by the Magisterium (teaching authority) of the Catholic Church, and carry and live out their religious beliefs daily by helping and assisting their members follow the teachings of the Catholic Church and strengthen their faith.
50. The members of Legatus share religious beliefs that prevent them from participating in, paying for, training others to engage in, or otherwise supporting contraception, abortion, and abortifacients.
51. Furthermore, Legatus provides education to its members pertaining to the teachings and tenets of the Catholic Faith.
52. Plaintiffs Karen A. Mersino and Rodney A. Mersino also are members of the Knights and Ladies of the Holy Sepulchre of Jerusalem, past and present Chairs of the Pastoral Council of Immaculate Conception, Knights of Columbus, and active participants of Eucharistic Adoration, as well as serving on the boards of Holy Cross Children’s Services and Catholic Charities of Southeast Michigan.
53. Plaintiffs Karen A. Mersino and Rodney A. Mersino hold religious beliefs that prevent them from participating in, paying for, training others to engage in, or otherwise supporting contraception, sterilization, abortion, and abortifacients.
54. Plaintiffs Karen A. Mersino and Rodney A. Mersino strive to follow the tenets of the Catholic faith in their business practices.
9

2:13-cv-11296-PDB-RSW Doc # 1 Filed 03/22/13 Pg 10 of 42 Pg ID 10
55. Plaintiffs Karen A. Mersino and Rodney A. Mersino are responsible for setting policies governing the conduct of all phases of business of Plaintiff Mersino Management and its companies.
56. Prior to the issuance of the Mandate, Plaintiffs engineered a self-funded insurance policy with its third party administrator Administration Systems Research Corporation which specifically excluded contraception, sterilization, abortion, and abortifacients, and exempts Plaintiffs from paying, contributing, or supporting contraception, sterilization, abortion, and abortifacients for others.
57. Plaintiffs obtained these exclusions due to their deeply held religious beliefs. 58. Plaintiffs have never offered insurance which included coverage for contraception, sterilization, abortion, and abortifacients. 59. Plaintiffs’ employees receive insurance under this engineered self-funded insurance policy with Administration Systems Research Corporation which specifically excludes contraception, sterilization, abortion, and abortifacients, and exempts Plaintiffs from paying, contributing, or supporting contraception, sterilization, and abortion for others. 60. Administration Systems Research Corporation is the third party administrator and uses the following medical insurance carriers for the Plaintiffs’ plan: Private Healthcare Systems (PHCS), Cigna Health Insurance, Health Alliance Plan of Michigan (HAP), and Physicians Care Health Plans. 61. Employee Health Insurance Management is the Plaintiffs’ plan administrator for prescription coverage.
10

2:13-cv-11296-PDB-RSW Doc # 1 Filed 03/22/13 Pg 11 of 42 Pg ID 11
62. Plaintiffs Karen A. Mersino and Rodney A. Mersino and their Plaintiff Mersino Management companies ensured that their insurance policy contained these exclusions to reflect their deeply held religious beliefs.
63. Based on the teachings of the Catholic Church, and their deeply held religious beliefs, Plaintiffs do not believe that contraception, sterilization, or abortion are properly understood to constitute medicine, health care, or a means of providing for the well being of persons. Indeed, Plaintiffs believe these procedures involve gravely immoral practices, specifically the intentional destruction of innocent human life.
DEFENDANTS 64. Defendants are appointed officials of the United States government and United States governmental agencies responsible for issuing the Mandate. 65. Defendant Kathleen Sebelius is the Secretary of the United States Department of Health and Human Services (“HHS”). In this capacity, she has responsibility for the operation and management of HHS. Defendant Sebelius is sued in her official capacity only. 66. Defendant HHS is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the regulation which is the subject of this lawsuit. 67. Defendant Seth D. Harris is the Acting Secretary of the United States Department of Labor. In this capacity, he holds responsibility for the operation and management of the United States Department of Labor. Defendant Harris is sued in his official capacity only. 68. Defendant United States Department of Labor is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the regulation which is the subject of this lawsuit.
11

2:13-cv-11296-PDB-RSW Doc # 1 Filed 03/22/13 Pg 12 of 42 Pg ID 12
69. Defendant Jack Lew is the Acting Secretary of the United States Department of the Treasury. In this capacity, he holds responsibility for the operation and management of the United States Department of Treasury. Defendant Lew is sued in his official capacity only.
70. Defendant United States Department of Treasury is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the regulation which is the subject of this lawsuit.
FACTUAL ALLEGATIONS Plaintiffs’ Religious Beliefs 71. Plaintiffs hold and actively profess religious beliefs in accordance with the traditional Christian teachings on the sanctity of life. Plaintiffs believe that each human being bears the image and likeness of God, and therefore that all human life is sacred and precious, from the moment of conception. Plaintiffs therefore believe that abortion ends a human life and is a grave sin. 72. Plaintiffs’ religious beliefs also include traditional Christian teaching on the nature and purpose of human sexuality. In particular, Plaintiffs believe, in accordance with Pope Paul VI’s 1968 encyclical Humanae Vitae, that human sexuality has two primary purposes: to “most closely unit[e] husband and wife” and “for the generation of new lives.” Accordingly, Plaintiffs believe and actively profess, with the Catholic Church, that “[t]o use this divine gift destroying, even if only partially, its meaning and its purpose is to contradict the nature both of man and of woman and of their most intimate relationship, and therefore it is to contradict also the plan of God and His Will.” Therefore, Plaintiffs believe and teach that “any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation, whether as an end or as a means”—including contraception and sterilization—is a grave sin.
12

2:13-cv-11296-PDB-RSW Doc # 1 Filed 03/22/13 Pg 13 of 42 Pg ID 13
73. Furthermore, Plaintiffs subscribe to authoritative Catholic teaching about the proper nature and aims of health care and medical treatment. For instance, Plaintiffs believe, in accordance with Pope John Paul II’s 1995 encyclical Evangelium Vitae, that “‘[c]ausing death’ can never be considered a form of medical treatment,” but rather “runs completely counter to the health-care profession, which is meant to be an impassioned and unflinching affirmation of life.”
74. Several leaders within the Catholic Church have publicly spoken out about how the Mandate is a direct violation of Catholic Faith.
75. Cardinal Timothy Dolan, Archbishop of New York and President of the United States Conference of Catholic Bishops wrote, “Since January 20 [2012], when the final, restrictive HHS Rule was first announced, we have become certain of two things: religious freedom is under attack, and we will not cease our struggle to protect it. We recall the words of our Holy Father Benedict XVI to our brother bishops on their recent ad limina visit: ‘Of particular concern are certain attempts being made to limit that most cherished of American freedoms, the freedom of religion.’ . . . We have made it clear in no uncertain terms to the government that we are not at peace with its invasive attempt to curtail the religious freedom we cherish as Catholics and Americans.” (http://www.usccb.org, last visited March 2, 2013).
76. Archbishop Charles J. Chaput, the Archbishop of Philadelphia, has expressed that the Affordable Care Act and the Mandate seek “to coerce Catholic employers, private and corporate, to violate their religious convictions . . . [t]he HHS mandate, including its latest variant, is belligerent, unnecessary, and deeply offensive to the content of Catholic belief . . . The HHS mandate needs to be rescinded. In reality, no similarly aggressive attack on religious freedom in our country has occurred in recent memory . . . [t]he HHS mandate is bad law; and not merely bad, but dangerous and insulting. It needs to be withdrawn—now.” (http://the-
13

2:13-cv-11296-PDB-RSW Doc # 1 Filed 03/22/13 Pg 14 of 42 Pg ID 14
american-catholic.com/2012/02/14/archbishop-chaput-hhs-mandate-dangerous-and-insulting/, last visited Feb. 14, 2012).
Plaintiffs Mersino Management, Karen A. Mersino, and Rodney A. Mersino, Owners and Shareholders of Mersino Management and its companies
77. Plaintiff Mersino Management and its companies, Mersino Enterprises, Inc., Mersino Dewatering, Inc., Global Pump Company, LLC, and Mersino Southwest, LLC, are forprofit companies.
78. Plaintiff Karen A. Mersino, Plaintiff Rodney A. Mersino, and Plaintiff Mersino Management share a common mission of conducting their business operations with integrity and in compliance with the teachings, mission, and values of the Catholic Church.
79. Plaintiffs Mersino Management, Karen A. Mersino, and Rodney A. Mersino purchase and provide self-funded group insurance through a third party administrator, Administration Systems Research Corporation, and provide this insurance to their employees.
80. Plaintiffs Mersino Management, Karen A. Mersino, and Rodney A. Mersino strive to provide their employees with employee health coverage superior to coverage generally available in the Michigan market in order to be a competitive employer.
81. Plaintiffs Mersino Management, Karen A. Mersino, and Rodney A. Mersino specifically designed their health insurance plan to exclude contraception, sterilization, abortion, and abortifacients in line with the religious beliefs of the Catholic faith.
82. Moreover, as a part of their religious commitment to the authoritative teachings of the Catholic Church, Plaintiffs Karen A. Mersino and Rodney A. Mersino are called to educate others about the teachings of the Catholic Church and steadfastly avoid practices that subvert the teaching of the Catholic Church such as providing or funding drugs, devices, services or procedures inconsistent with their Catholic faith.
14

2:13-cv-11296-PDB-RSW Doc # 1 Filed 03/22/13 Pg 15 of 42 Pg ID 15
83. Plaintiffs Mersino Management, Karen A. Mersino, and Rodney A. Mersino cannot provide, fund, or participate in health care insurance which covers artificial contraception, sterilization, abortion, or abortifacients, or related education and counseling, without violating their deeply held religious beliefs.
84. Plaintiffs Mersino Management, Karen A. Mersino, and Rodney A. Mersino cannot provide information or guidance to their employees regarding artificial contraception, sterilization, abortion, abortifacients or related education and counseling, without violating their deeply held religious beliefs.
85. With full knowledge of these aforementioned beliefs, Defendants issued an administrative rule (“the Mandate”) that runs roughshod over Plaintiffs’ religious beliefs, and the beliefs of millions of other Americans.
86. The Mandate not only forces Plaintiffs to finance contraception, sterilization, abortion, and related education and counseling as health care, but also subverts the expression of Plaintiffs’ religious beliefs, and the beliefs of millions of other Americans, by forcing Plaintiffs to provide, fund, promote, and assist others to acquire services which Plaintiffs believe involve gravely immoral practices, including the destruction of innocent human life.
87. The Mandate unconstitutionally coerces Plaintiffs to violate their deeply-held religious beliefs under threat of directly violating their consciences, in addition to any imposed fines and penalties. The Mandate also forces Plaintiffs to fund government-dictated speech that is directly at odds with their own speech and religious beliefs. Having to pay a fine to the taxing authorities or being entirely forced out of the insurance market in order to ensure the privilege of practicing one’s religion or controlling one’s own speech substantially burdens Plaintiffs’ religious liberty and freedom of speech under the First Amendment.
15

2:13-cv-11296-PDB-RSW Doc # 1 Filed 03/22/13 Pg 16 of 42 Pg ID 16
88. The Mandate strips the Plaintiffs of any choice to select an insurance plan that does not cover and finance contraception, sterilization, abortion, and abortifacients, as the Mandate requires that all insurance issuers provide this coverage.
89. Plaintiffs’ plan is not considered “grandfathered” and will be subject to the provisions of the Mandate.
90. Due to the Mandate, Plaintiffs will no longer be allowed to exclude contraception, sterilization, abortion, and abortifacients from their insurance plans—and will be forced to provide and pay for these services which violate their religious beliefs.
91. Plaintiffs wish to conduct their business in a manner that does not violate the principles of their religious faith.
92. Complying with the Mandate requires a direct violation of the Plaintiffs’ religious beliefs because it would require Plaintiffs to pay for and assist others in paying for or obtaining not only contraception, but also abortion, because certain drugs and devices such as the “morning-after pill,” “Plan B,” and “ella” come within the Mandate’s and Health Resources and Services Administration’s definition of “Food and Drug Administration-approved contraceptive methods” despite their known abortifacient mechanisms of action.
93. Defendants’ refusal to accommodate the conscience of the Plaintiffs, and of other Americans who share the Plaintiffs’ religious views, is highly selective. Numerous exemptions exist in the Affordable Care Act which appear arbitrary and were granted to employers who purchase group insurance. This evidences that Defendants do not mandate that all insurance plans need to cover “preventive services” (e.g. the thousands of waivers from the Affordable Care Act issued by Defendants for group insurance based upon the commercial convenience of large corporations, the age of the insurance plan, or the size of the employer).
16

2:13-cv-11296-PDB-RSW Doc # 1 Filed 03/22/13 Pg 17 of 42 Pg ID 17
94. Despite granting waivers upon a seemingly arbitrary basis, no exemption exists for an employer or individual whose religious conscience instructs him that certain mandated services are unethical, immoral, and volatile to one’s religious beliefs. Defendants’ plan fails to give the same level of weight or accommodation to the exercise of one’s fundamental First Amendment freedoms that it assigns to the yearly earnings of a corporation.
95. The Defendants’ actions violate Plaintiffs’ right to freedom of religion, as secured by the First Amendment to the United States Constitution and civil rights statutes, including the Religious Freedom Restoration Act (RFRA).
96. The Defendants’ actions also violate Plaintiffs’ right to the freedom of speech, as secured by the First Amendment to the United States Constitution.
97. Furthermore, the Mandate is also illegal because it was imposed by Defendants without prior notice or sufficient time for public comment, and otherwise violates the Administrative Procedure Act, 5 U.S.C. § 553.
98. Had Plaintiffs’ religious beliefs, or the beliefs of the millions of other Americans who share Plaintiffs’ religious beliefs been obscure or unknown, the Defendants’ actions might have been an accident. But because the Defendants acted with full knowledge of those beliefs, and because they arbitrarily exempt some plans for a wide range of reasons other than religious conviction, the Mandate can be interpreted as nothing other than a deliberate attack by the Defendants on the Catholic Church, the religious beliefs held by Plaintiffs and the similar religious beliefs held by millions of other Americans. The Defendants have, in sum, intentionally used government power to force individuals to believe in, support, and endorse the mandated services manifestly contrary to their own religious convictions, and then to act on that
17

2:13-cv-11296-PDB-RSW Doc # 1 Filed 03/22/13 Pg 18 of 42 Pg ID 18
coerced belief, support, or endorsement. Plaintiffs seek declaratory and injunctive relief to protect against this attack.
The Affordable Care Act 99. In March 2010, Congress passed, and President Obama signed into law, the “Patient Protection and Affordable Care Act” (Pub. L. 111-148, March 23, 2010, 124 Stat. 119) and the “Health Care and Education Reconciliation Act” (Pub. L. 111-152, March 30, 2010, 124 Stat. 1029) (referred to in this complaint as the “Affordable Care Act”). 100. The Affordable Care Act regulates the national health insurance market by directly regulating “group health plans” and “health insurance issuers.” 101. The Affordable Care Act does not apply equally to all insurers. 102. The Affordable Care Act does not apply equally to all individuals. 103. The Affordable Care Act requires employers with more than 50 full-time employees or full-time employee equivalents to provide federal government-approved health insurance or pay a substantial per-employee fine. (26 U.S.C. § 4980H). 104. Plaintiff Mersino Management companies employ over 50 full-time employees or full-time equivalents. 105. Plaintiff Mersino Management and its companies, Mersino Dewatering, Inc., Mersino Enterprises, Inc., Global Pump Company, LLC, and Mersino Southwest, LLC constitute a “single employer” for purposes of the Affordable Care Act as defined at 42 U.S.C. § 18024(b)(4)(A). 106. Plaintiff Mersino Management companies, as well as Plaintiffs Karen A. Mersino and Rodney A. Mersino as the owners and shareholders of the Mersino Management companies
18

2:13-cv-11296-PDB-RSW Doc # 1 Filed 03/22/13 Pg 19 of 42 Pg ID 19
must provide federal government-approved health insurance under the Affordable Care Act or pay substantial per-employee fines.
107. The Affordable Care Act purports to not apply to the failure to offer employersponsored insurance to employers with fewer than 50 employees, not counting seasonal workers. 26 U.S.C. § 4980H(c)(2)(A).
108. However, even employers with fewer than 50 employees purchase insurance from health insurance issuers, who are subject to the Affordable Care Act. 42 USC § 300GG-13 (a)(1),(4).
109. Certain provisions of the Affordable Care Act do not apply equally to members of certain religious groups. See, e.g., 26 U.S.C. § 5000A(d)(2)(A)(i) and (ii) (individual mandate does not apply to members of “recognized religious sect or division” that conscientiously objects to acceptance of public or private insurance funds); 26 U.S.C. § 5000A(d)(2)(B)(ii) (individual mandate does not apply to members of “health care sharing ministry” that meets certain criteria).
110. Plaintiffs do not qualify for an individual exemption under 26 U.S.C. § 5000A(d)(2)(A)(i) and (ii) as Plaintiffs do not object to acceptance of public or private insurance funds in their totality and currently enjoy health insurance benefits that exclude contraceptives, sterilization, abortion, and abortifacients.
111. The Affordable Care Act’s preventive care requirements do not apply to employers who provide so-called “grandfathered” health care plans.
112. Employers who follow HHS’s guidelines may continue to use grandfathered plans indefinitely.
113. Plaintiffs’ current insurance plans do not qualify as “grandfathered” health care plans, and are considered “non-grandfathered.”
19

2:13-cv-11296-PDB-RSW Doc # 1 Filed 03/22/13 Pg 20 of 42 Pg ID 20
114. Furthermore, Plaintiffs do not qualify for the “religious employer” exemption contained in 45 CFR § 147.130 (a)(1)(A) and (B).
115. There have been changes made to Plaintiffs’ plan after 2010, and participants have never been notified of a “grandfathered” status.
116. Furthermore, Plaintiffs are not eligible for “grandfathered” status under the Affordable Care Act and will be subject to the requirements of the Affordable Care Act and the Health and Human Services Mandate because: (1) the health care plan does not include the required “disclosure of grandfather status” statement; (2) Plaintiffs do not take the position that its health care plan is a grandfathered plan and thus do not maintain the records necessary to verify, explain, or clarify its status as a grandfathered plan nor will it make such records available for examination upon request; and (3) the health care plan has an increase in a percentage cost-sharing requirement measured from March 23, 2010. See 42 U.S.C. § 18011(a) (2); 26 C.F.R. § 54.9815-1251T; 29 C.F.R. § 2590.715-1251; 45 C.F.R. §147.140.
117. Since the Plaintiffs do not qualify for the “religious employer” exemption, they are not permitted to take advantage of the “temporary safe-harbor” as set forth by the Defendants at 77 Fed. Register 8725 (Feb. 15, 2012).
118. Plaintiffs are thus subjected to the Mandate now and are confronted with choosing between complying with its requirements in violation of their religious beliefs or violating federal law.
119. Plaintiffs Mersino Management, Karen A. Mersino, and Rodney A. Mersino must choose between complying with the requirements of the Affordable Care Act in violation of their religious beliefs or paying ruinous fines that would have a crippling impact on their ability to survive economically.
20

2:13-cv-11296-PDB-RSW Doc # 1 Filed 03/22/13 Pg 21 of 42 Pg ID 21
120. Plaintiffs Mersino Management, Karen A. Mersino, and Rodney A. Mersino must provide federal government-approved health insurance under the Affordable Care Act or pay substantial per-employee fines.
121. Under 26 U.S.C. § 4980H since Plaintiffs have over fifty full-time employees, if Plaintiffs do not meet the “minimum essential coverage” requirements (i.e. do not provide contraception, sterilization, abortion, and abortifacients) Plaintiffs could owe $2,000 per year for each full-time employee excluding the first thirty full-time employees. The tax penalty assessable payment calculation would generally be: (184 employees - 30) x $2,000 per year = $308,000 per year tax penalty.
122. Under the United States Internal Revenue Code, 26 U.S.C. § 4980D(a), there is a tax imposed on any failure of a group plan to meet the requirements of Chapter 100 (relating to group plan requirements). Under 26 U.S.C. § 4980D(b), the amount of the tax is $100 for each day in the non-compliance period with respect to each individual to whom such failure relates. This tax penalty would generally be: 184 employees x 365 days per year x $100 each day = $6,716,000 per year tax.
123. Plaintiffs are collectively confronted with complying with the requirements of the Affordable Care Act in violation of their religious beliefs or removing themselves and employees from the health insurance market in its entirety—endangering the health and economic stability of their employees and forcing Plaintiff Mersino Management and its companies to be noncompetitive as employers in a market where other, non-Catholic employers will be able to provide insurance to their employees under the Affordable Care Act without violating their religious beliefs.
21

2:13-cv-11296-PDB-RSW Doc # 1 Filed 03/22/13 Pg 22 of 42 Pg ID 22
124. The Affordable Care Act is not generally applicable because it provides for numerous exemptions from its rules.
125. The Affordable Care Act is not neutral because some groups, both secular and religious, enjoy exemptions from the law, while certain religious groups do not. Some groups, both secular and religious, have received waivers from compliance with the provisions of the Affordable Care Act, while others—such as the Plaintiffs—have not.
126. The Affordable Care Act creates a system of individualized exemptions. 127. The United States Department of Health and Human Services has the authority under the Affordable Care Act to grant compliance waivers (“HHS waivers”) to employers and other health insurance plan issuers. 128. HHS waivers release employers and other plan issuers from complying with the provisions of the Affordable Care Act. 129. HHS decides whether to grant waivers based on individualized waiver requests from particular employers and other health insurance plan issuers. 130. Upon information and belief, more than a thousand HHS waivers have been granted. The “Preventive Care” Mandate 131. A provision of the Affordable Care Act mandates that health plans “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” and directs the Secretary of United States Department of Health and Human Services to determine what would constitute “preventive care” under the mandate. 42 U.S.C § 300gg–13(a)(4).
22

2:13-cv-11296-PDB-RSW Doc # 1 Filed 03/22/13 Pg 23 of 42 Pg ID 23
132. On July 19, 2010, HHS, along with the United States Department of Treasury and the United States Department of Labor, published an interim final rule under the Affordable Care Act. 75 Fed. Reg. 41726 (2010). The interim final rule required providers of group health insurance to cover preventive care for women as provided in guidelines to be published by the Health Resources and Services Administration at a later date. 75 Fed. Reg. 41759 (2010).
133. On February 15, 2012, the United States Department of Health and Human Services promulgated a mandate that group health plans include coverage for all Food and Drug Administration-approved contraceptive methods and procedures, patient education, and counseling for all women with reproductive capacity in plan years beginning on or after August 1, 2012 (hereafter, “the Mandate”). See 45 CFR § 147.130 (a)(1)(iv), as confirmed at 77 Fed. Register 8725 (Feb. 15, 2012), adopting and quoting Health Resources and Services Administration (HRSA) Guidelines, (http://www.hrsa.gov/womensguidelines, last visited March 6, 2013).
134. The Mandate was enacted pursuant to statutory authority under the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119, as amended by the Health Care and Education Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029 (ACA). 77 Fed. Reg. 31, 8725 (“Affordable Care Act”).
135. In its ruling, HHS included all FDA-approved contraceptives under the banner of preventive services, including contraception, abortion, and abortifacients such as the “morningafter pill,” “Plan B,” and “ella,” a close cousin of the abortion pill RU-486. (http://www.hrsa.gov/womensguidelines, last visited March 6, 2013).
136. The Mandate’s reach seeks to control the decisions of employers, individuals and also the decisions of all insurance issuers (i.e. “Administration Systems Research Corporation,”
23

2:13-cv-11296-PDB-RSW Doc # 1 Filed 03/22/13 Pg 24 of 42 Pg ID 24
etc.). 42 USC § 300gg-13 (a)(1),(4). (“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 evidence-based items or services that have in effect a rating of ‘A’ or ‘B’ in the current recommendations of the United States Preventive Services Task Force; . . . with respect to women, such additional preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.”).
137. All insurance issuers are mandated to include contraception, sterilization, abortion, and abortifacients such as the “morning-after pill,” “Plan B,” and “ella” in all of its group and individual plans, not specifically exempted, beginning as of August 1, 2012 and effective on the anniversary of the employer’s plan year.
138. Individuals and employers, regardless of the number of employees they employ, will eventually be forced to select an insurance plan which includes what HHS deemed “preventive care.”
139. All individuals and employers will be stripped of their choice not to pay for the “preventive care,” regardless of whether paying for such “services” violates one’s conscience or deeply held religious beliefs.
140. Health insurance issuers include insurance companies such as the Administration Systems Research Corporation, Private Healthcare Systems (PHCS), Cigna Health Insurance, Health Alliance Plan of Michigan (HAP), Physicians Care Health Plans, and Employee Health Insurance Management, which are the insurance issuers used by Plaintiffs.
24

2:13-cv-11296-PDB-RSW Doc # 1 Filed 03/22/13 Pg 25 of 42 Pg ID 25

141. The Mandate reaches even further than the Affordable Care Act to eliminate all

employers and individuals from selecting a health insurance plan in which the insurance issuers

do not automatically provide contraception, sterilization, abortion, and abortifacients.

142. Prior to promulgating the Mandate, HHS accepted public comments to the 2010

interim final regulations from July 19, 2010 to September 17, 2010. Upon information and

belief, a large number of groups filed comments, warning of the potential conscience

implications of requiring religious individuals and groups to pay for certain kinds of services,

including contraception, sterilization, abortion, and abortifacients.

143. HHS directed a private health policy organization, the Institute of Medicine

(“IOM”), to suggest a list of recommended guidelines describing which drugs, procedures, and

services should be covered by all health plans as preventive care for women.

(http://www.hrsa.gov/womensguidelines, last visited March 6, 2013).

144. In developing its guidelines, IOM invited a select number of groups to make

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

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

Santelli, the National Women’s Law Center, National Women’s Health Network, Planned

Parenthood

Federation

of

America

and

Sara

Rosenbaum.

(http://www.nap.edu/openbook.php?record_id=13181&PAGE=217, last visited March 6, 2013).

145. No religious groups or other groups that oppose government-mandated coverage

of contraception, sterilization, abortion, and related education and counseling were among the

invited presenters.

146. One year after the first interim final rule was published, on July 19, 2011, the

IOM published its recommendations. It recommended that the preventive services include “All

25

2:13-cv-11296-PDB-RSW Doc # 1 Filed 03/22/13 Pg 26 of 42 Pg ID 26
Food and Drug Administration approved contraceptive methods.” (Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps (July 19, 2011)).
147. Preventive services therefore include FDA-approved contraceptive methods such as birth-control pills; prescription contraceptive devices, including IUDs; Plan B, also known as the “morning-after pill”; and ulipristal, also known as “ella” or the “week-after pill”; and other drugs, devices, and procedures.
148. Plan B and “ella” can prevent the implantation of a human embryo in the wall of the uterus and can cause the death of an embryo. The use of artificial means to prevent the implantation of a human embryo in the wall of the uterus or to cause the death of an embryo each constitute an “abortion” as that term is used in federal law and Catholic teaching. Consequently, Plan B and “ella” are abortifacients.
149. Thirteen days later, on August 1, 2011, without notice of rulemaking or opportunity for public comment, HHS, the United States Department of Labor, and the United States Department of Treasury adopted the IOM recommendations in full and promulgated an interim final rule (“the Mandate”), which requires that all “group health plan[s] and . . . health insurance issuer[s] offering group or individual health insurance coverage” provide all FDAapproved contraceptive methods and procedures. 76 Fed. Reg. 46621 (published Aug. 3, 2011); 45 C.F.R. § 147.130. Health Resources and Services Administration issued guidelines adopting the IOM recommendations. (http://www.hrsa.gov/womensguidelines, last visited March 6, 2013).
150. The Mandate also requires group health care plans and insurance issuers to provide education and counseling for all women beneficiaries with reproductive capacity.
151. The Mandate went into effect immediately as an “interim final rule.”
26

2:13-cv-11296-PDB-RSW Doc # 1 Filed 03/22/13 Pg 27 of 42 Pg ID 27
152. HHS did not take into account the concerns of religious organizations in the comments submitted before the Mandate was issued.
153. Instead the Mandate was unresponsive to the concerns stated in the comments submitted by religious organizations.
154. When it issued the Mandate, HHS requested comments from the public by September 30th and indicated that comments would be available online.
155. Upon information and belief, over 100,000 comments were submitted against the Mandate.
156. On October 5, 2011, six days after the comment period ended, Defendant Sebelius gave a speech at a fundraiser for NARAL Pro-Choice America. She told the assembled crowd that “we are in a war.” She did not state whom she and NARAL Pro-Choice America were warring against.
157. During a Congressional hearing on April 26, 2012, Defendant Sebelius admitted that she is totally unfamiliar with the United States Supreme Court religious freedom cases.
158. Defendant Sebelius showed little concern for the constitutional issues involved in promulgating the Mandate. At the aforementioned congressional hearing, she admitted that prior to issuing the Mandate she did not review any written materials or any sort of legal memo from her general counsel discussing the effects of the Mandate on religious freedom.
159. The Mandate fails to take into account the statutory and constitutional conscience rights of religious business owners and for profit companies that exercise business practices in compliance with certain faith practices, such as Plaintiffs Rodney A. Mersino and Karen A. Mersino’s companies, including Plaintiff Mersino Management companies, a subject of comment.
27

2:13-cv-11296-PDB-RSW Doc # 1 Filed 03/22/13 Pg 28 of 42 Pg ID 28
160. The Mandate requires that Plaintiffs assist, provide, or fund coverage for contraception, sterilization, abortion, abortifacients, and related education and counseling against their conscience in a manner that is contrary to law.
161. The Mandate constitutes government-imposed pressure and coercion on Plaintiffs to change or violate their religious beliefs.
162. The Mandate exposes Plaintiff Mersino Management, Plaintiff Karen A. Mersino, and Plaintiff Rodney A. Mersino, as individuals and as employers or companies with over 50 full-time employees, to substantial fines for refusal to change or violate their religious beliefs.
163. The Mandate imposes a burden on Plaintiffs’ employee recruitment efforts by creating uncertainty as to whether Plaintiffs will be able to offer health insurance beyond the beginning of their next plan year on June 1, 2013.
164. The Mandate places Plaintiffs at a competitive disadvantage in their efforts to recruit and retain employees and members.
165. Furthermore as Christians, their religious beliefs and the principle of stewardship require that Plaintiffs Karen A. Mersino and Rodney A. Mersino care for their employees by providing insurance coverage for them and their families.
166. The Mandate forces Plaintiffs to provide, fund, or approve and assist their employees and members in purchasing contraception and abortifacient drugs in violation of Plaintiffs’ religious beliefs that doing so is gravely immoral and, in certain cases, equivalent to assisting another to destroy innocent human life.
167. Plaintiffs have a sincere religious objection to providing coverage for emergency contraceptive drugs such as Plan B and “ella” since they believe those drugs could prevent a
28

2:13-cv-11296-PDB-RSW Doc # 1 Filed 03/22/13 Pg 29 of 42 Pg ID 29
human embryo, which they understand to include a fertilized egg before it implants in the uterus, from implanting in the wall of the uterus, causing the death of a person.
168. Plaintiffs consider the prevention by artificial means of the implantation of a human embryo to be an abortion.
169. Plaintiffs believe that Plan B and “ella” can cause the death of the embryo, which is a person.
170. Plan B can prevent the implantation of a human embryo in the wall of the uterus. 171. “Ella” can prevent the implantation of a human embryo in the wall of the uterus. 172. Plan B and “ella” can cause the death of the embryo. 173. The use of artificial means to prevent the implantation of a human embryo in the wall of the uterus constitutes an “abortion” as that term is used in federal law. 174. The use of artificial means to cause the death of a human embryo constitutes an “abortion” as that term is used in federal law. 175. The Mandate forces Plaintiffs to provide emergency contraception, including Plan B and “ella,” free of charge, regardless of the ability of insured persons to obtain these drugs from other sources. 176. The Mandate forces Plaintiffs to fund education and counseling concerning contraception, sterilization, and abortion that directly conflicts with Plaintiffs’ religious beliefs and teachings. 177. Plaintiffs could not cease in providing its employees with health insurance coverage without violating their religious duty to provide for the health and well-being of their employees and their families. Additionally, employees would be unable to attain similar coverage in the market as it now exists.
29

2:13-cv-11296-PDB-RSW Doc # 1 Filed 03/22/13 Pg 30 of 42 Pg ID 30
178. The Mandate forces Plaintiffs to choose between violating their religious beliefs, incurring substantial fines, or terminating their employee or individual health insurance coverage.
179. Providing counseling and education about contraceptives, sterilization, and abortion directly undermines and subverts the explicit messages and speech of Plaintiffs.
180. Group health plans and insurance issuers have been subject to the Mandate as of August 1, 2012.
181. Plaintiffs plan year begins on June 1, 2013—and will be subject to the Mandate as of that date without Court intervention.
182. Plaintiffs have already had to devote significant institutional resources, including both staff time and funds, to determine how to respond to the Mandate. Plaintiffs anticipate continuing to make such expenditures of time and money up until and after the time that the Mandate goes into effect for the Plaintiffs’ plan.
The Narrow and Discretionary Religious Exemption 183. The Mandate indicates that the Health Resources and Services Administration (“HRSA”) “may” grant religious exemptions to certain religious employers. 45 C.F.R. § 147.130(a)(iv)(A). 184. The Mandate allows HRSA to grant exemptions for “religious employers” who “meet[ ] all of the following criteria: (1) The inculcation of religious values is the purpose of the organization. (2) The organization primarily employs persons who share the religious tenets of the organization. (3) The organization serves primarily persons who share the religious tenets of the organization. (4) The organization is a nonprofit organization as described in section
30

2:13-cv-11296-PDB-RSW Doc # 1 Filed 03/22/13 Pg 31 of 42 Pg ID 31
6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 45 C.F.R. § 147.130(a)(iv)(B).
185. The Mandate imposes no constraint on HRSA’s discretion to grant exemptions to some, all, or none of the organizations meeting the Mandate’s definition of “religious employers.”
186. HHS stated that it based the exemption on comments on the 2010 interim final rule. 76 Fed. Reg. 46621.
187. There is no exemption for a for-profit company. 188. Plaintiffs reasonably expect, as confirmed by their respective insurance issuers, that they will be subject to the Mandate despite the existence of exemptions to the Mandate as none of the exemptions apply to Plaintiffs. 189. On January 20, 2012, Defendant Sebelius announced that there would be no change to the religious exemption. She added that “[n]onprofit employers who, based on religious beliefs, do not currently provide contraceptive coverage in their insurance plan, will be provided an additional year, until August 1, 2013, to comply with the new law,” on the condition that those employers certify they qualify for the extension. At the same time, however, Sebelius announced that HHS “intend[s] to require employers that do not offer coverage of contraceptive services to provide notice to employees, which will also state that contraceptive services are available at sites such as community health centers, public clinics, and hospitals with incomebased support.” See Statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius, (http://www.hhs.gov/news/press/2012pres/01/20120120a.html, last visited March 6, 2013). To date, Defendant HHS has not released any official rule implementing either the one-year extension or the additional forced-speech requirement that applies to either Plaintiff.
31

2:13-cv-11296-PDB-RSW Doc # 1 Filed 03/22/13 Pg 32 of 42 Pg ID 32
190. It is inevitable with the current state of the law that Plaintiffs will have to comply with the Mandate, despite the fact that Plaintiffs will violate the teachings of their religious beliefs and the teachings of their Catholic faith by directly providing, funding, and/or allowing its members to engage in disseminating information and guidance about where to obtain contraception, sterilization, abortion, or abortifacient services.
CLAIMS COUNT I Violation of the First Amendment to the United States Constitution Free Exercise Clause 191. Plaintiffs incorporate by reference all preceding paragraphs. 192. Plaintiffs’ sincerely held religious beliefs prohibit them from providing coverage for contraception, sterilization, abortion, or related education and counseling. Plaintiffs’ compliance with these beliefs is a religious exercise. 193. Neither the Affordable Care Act nor the Mandate is neutral. 194. Neither the Affordable Care Act nor the Mandate is generally applicable. 195. Defendants have created categorical exemptions and individualized exemptions to the Mandate. 196. The Mandate furthers no compelling governmental interest. 197. The Mandate is not the least restrictive means of furthering Defendants’ stated interests. 198. The Mandate creates government-imposed coercive pressure on Plaintiffs to change or violate their religious beliefs. 199. The Mandate chills Plaintiffs’ religious exercise.
32

2:13-cv-11296-PDB-RSW Doc # 1 Filed 03/22/13 Pg 33 of 42 Pg ID 33
200. The Mandate exposes Plaintiffs to substantial competitive disadvantages, in that they will no longer be permitted to offer health insurance.
201. The Mandate exposes Plaintiffs to substantial fines for their religious exercise. 202. The Mandate exposes Plaintiffs to monetary and health risks as they will no longer be able to accept health insurance, nor be able to purchase or provide health care insurance without violating their religious beliefs. 203. The Mandate imposes a substantial burden on Plaintiffs’ religious exercise. 204. The Mandate is not narrowly tailored to any compelling governmental interest. 205. The Mandate and Defendants’ threatened enforcement of the Mandate violate Plaintiffs’ rights secured to them by the Free Exercise Clause of the First Amendment to the United States Constitution. 206. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT II Violation of the First Amendment to the United States Constitution
Free Exercise Clause 207. Plaintiffs incorporate by reference all preceding paragraphs. 208. Plaintiffs’ sincerely held religious beliefs prohibit them from purchasing or providing coverage for contraception, sterilization, abortion, or related education and counseling. Plaintiffs’ compliance with these beliefs is a religious exercise. 209. Despite being informed in detail of these beliefs beforehand, Defendants designed the Mandate and the religious exemption to the Mandate in a way that made it impossible for Plaintiffs to comply with their religious beliefs.
33

2:13-cv-11296-PDB-RSW Doc # 1 Filed 03/22/13 Pg 34 of 42 Pg ID 34
210. Defendants promulgated both the Mandate and the religious exemption to the Mandate in order to suppress the religious exercise of Plaintiffs and others.
211. The Mandate and Defendants’ threatened enforcement of the Mandate thus violate Plaintiffs’ rights secured to them by the Free Exercise Clause of the First Amendment of the United States Constitution.
212. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT III Violation of the First Amendment to the United States Constitution
Free Exercise Clause 213. Plaintiffs incorporate by reference all preceding paragraphs. 214. By design, Defendants imposed the Mandate on some religious organizations or religious individuals but not on others, resulting in discrimination among religions. 215. The Mandate vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations meeting the definition of “religious employers.” 216. The Mandate vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no religious individuals. 217. The Mandate and Defendants’ threatened enforcement of the Mandate thus violate Plaintiffs’ rights secured to them by the Free Exercise Clause of the First Amendment of the United States Constitution. 218. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
34

2:13-cv-11296-PDB-RSW Doc # 1 Filed 03/22/13 Pg 35 of 42 Pg ID 35
COUNT IV Violation of the First Amendment to the United States Constitution
Establishment Clause 219. Plaintiffs incorporate by reference all preceding paragraphs. 220. By design, defendants imposed the Mandate on some religious organizations but not on others, resulting in a selective burden on Plaintiffs. 221. Defendants also imposed the Mandate on some religious individuals and religious organizations but not on others, resulting in a selective burden on Plaintiffs. 222. The Mandate vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations meeting the definition of “religious employers.” 223. The Mandate also vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no individuals. 224. The Mandate and Defendants’ threatened enforcement of the Mandate therefore violates Plaintiffs’ rights secured to them by the Establishment Clause of the First Amendment to the United States Constitution. 225. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT V Violation of the First Amendment to the United States Constitution
Freedom of Speech 226. Plaintiffs incorporate by reference all preceding paragraphs. 227. Plaintiffs profess, educate, lecture, and engage in outreach amongst the community that contraception, sterilization, abortion, and abortifacients violate their religious beliefs.
35

2:13-cv-11296-PDB-RSW Doc # 1 Filed 03/22/13 Pg 36 of 42 Pg ID 36
228. The Mandate would compel Plaintiffs to provide or subsidize activities that Plaintiffs profess, educate, lecture, and engage in outreach amongst the community are violations of the Plaintiffs’ religious beliefs.
229. The Mandate would compel Plaintiffs to fund and to provide education and counseling related to contraception, sterilization, abortion, and abortifacients.
230. Defendants’ actions thus violate Plaintiffs’ right to be free from compelled speech as secured to them by the First Amendment of the United States Constitution.
231. The Mandate’s compelled speech requirement is not narrowly tailored to a compelling governmental interest.
232. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT VI Violation of the First Amendment to the United States Constitution
Expressive Association 233. Plaintiffs incorporate by reference all preceding paragraphs. 234. Plaintiffs profess, educate, and engage in outreach amongst the community that contraception, sterilization, abortion, and abortifacients violate their religious beliefs. 235. The Mandate would compel Plaintiffs to subsidize activities that Plaintiffs profess, educate, and engage in outreach in the community are violations of Plaintiffs’ religious beliefs. 236. The Mandate would compel Plaintiffs to fund and to provide education and counseling related to contraception, sterilization, abortion, and abortifacients. 237. Defendants’ actions thus violate Plaintiffs’ right of expressive association as secured to them by the First Amendment of the United States Constitution.
36

2:13-cv-11296-PDB-RSW Doc # 1 Filed 03/22/13 Pg 37 of 42 Pg ID 37
238. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT VII Violation of the First Amendment to the United States Constitution
Free Exercise Clause and Freedom of Speech 239. Plaintiffs incorporate by reference all preceding paragraphs. 240. By stating that HRSA “may” grant an exemption to certain religious groups, the Mandate vests HRSA with unbridled discretion over which organizations or individuals can have their First Amendment interests accommodated. 241. The Mandate furthermore seems to have completely failed to address the constitutional and statutory implications of the Mandate on for-profit employers such as Plaintiff Mersino Management, Plaintiff Karen A. Mersino, and Plaintiff Rodney A. Mersino. As such, Plaintiff Mersino Management, Plaintiff Karen A. Mersino, and Plaintiff Rodney A. Mersino are subject to the unbridled discretion of HRSA to determine whether such companies or individuals would be exempt or are wholly left without relief from the Mandate. 242. Defendants’ actions violate Plaintiffs’ right not to be subjected to a system of unbridled discretion when engaging in speech or when engaging in religious exercise, as secured to them by the First Amendment of the United States Constitution. 243. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT VIII Violation of the Religious Freedom Restoration Act 244. Plaintiffs incorporate by reference all preceding paragraphs.
37

2:13-cv-11296-PDB-RSW Doc # 1 Filed 03/22/13 Pg 38 of 42 Pg ID 38
245. Plaintiffs’ sincerely held religious beliefs prohibit them from providing or purchasing coverage for contraception, sterilization, abortion, abortifacients, or related education and counseling. Plaintiffs’ compliance with these beliefs is a religious exercise.
246. The Mandate creates government-imposed coercive pressure on Plaintiffs to change or violate their religious beliefs.
247. The Mandate chills Plaintiffs’ religious exercise. 248. The Mandate exposes Plaintiffs to substantial fines for their religious exercise. 249. The Mandate exposes Plaintiffs to substantial competitive disadvantages, in that they will no longer be permitted to offer or purchase health insurance. 250. The Mandate imposes a substantial burden on Plaintiffs’ religious exercise. 251. The Mandate furthers no compelling governmental interest. 252. The Mandate is not narrowly tailored to any compelling governmental interest. 253. The Mandate is not the least restrictive means of furthering Defendants’ stated interests. 254. The Mandate and Defendants’ threatened enforcement of the Mandate violate Plaintiffs’ rights secured to them by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. 255. Absent injunctive and declaratory relief against the Defendants, Plaintiffs have been and will continue to be harmed.
COUNT IX Violation of the Administrative Procedure Act 256. Plaintiffs incorporate by reference all preceding paragraphs. 257. Defendants’ stated reasons that public comments were unnecessary, impractical, and opposed to the public interest are false and insufficient, and do not constitute “good cause.”
38

2:13-cv-11296-PDB-RSW Doc # 1 Filed 03/22/13 Pg 39 of 42 Pg ID 39
258. Without proper notice and opportunity for public comment, Defendants were unable to take into account the full implications of the regulations by completing a meaningful “consideration of the relevant matter presented.” Defendants did not consider or respond to the voluminous comments they received in opposition to the interim final rule.
259. Therefore, Defendants have taken agency action not in observance with procedures required by law, and Plaintiffs are entitled to relief pursuant to 5 U.S.C. § 706(2)(D).
260. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT X Violation of the Administrative Procedure Act 261. Plaintiffs incorporate by reference all preceding paragraphs. 262. In promulgating the Mandate, Defendants failed to consider the constitutional and statutory implications of the Mandate on Plaintiffs and similar organizations, companies, and individuals. 263. Defendants’ explanation for its decision not to exempt Plaintiffs and similar companies and religious individuals from the Mandate runs counter to the evidence submitted by religious organizations during the comment period. 264. Thus, Defendants’ issuance of the interim final rule was arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because the rules fail to consider the full extent of their implications and they do not take into consideration the evidence against them. 265. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
39

2:13-cv-11296-PDB-RSW Doc # 1 Filed 03/22/13 Pg 40 of 42 Pg ID 40
COUNT XI Violation of the Administrative Procedure Act 266. Plaintiffs incorporate by reference all preceding paragraphs. 267. The Mandate is contrary to the provisions of the Weldon Amendment of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act of 2009, Public Law 110 329, Div. A, Sec. 101, 122 Stat. 3574, 3575 (September 30, 2008). 268. The Weldon Amendment provides that “[n]one of the funds made available in this Act [making appropriations for Defendants United States Department of Labor and United States 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.” 269. The Mandate requires issuers, employers, and individuals, including Plaintiffs, to provide and purchase coverage of all Federal Drug Administration-approved contraceptives. 270. Some FDA-approved contraceptives cause abortions. 271. As set forth above, the Mandate violates RFRA and the First Amendment. 272. Under 5 U.S.C. § 706(2)(A), the Mandate is contrary to existing law, and is in violation of the Administrative Procedure Act. 273. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT XII Violation of the Administrative Procedure Act 274. Plaintiffs incorporate by reference all preceding paragraphs. 275. The Mandate is contrary to the provisions of the Affordable Care Act.
40

2:13-cv-11296-PDB-RSW Doc # 1 Filed 03/22/13 Pg 41 of 42 Pg ID 41
276. Section 1303(a)(1)(A)(i) of the Affordable Care Act states that “nothing in this title”—i.e., title I of the Act, which includes the provision dealing with “preventive services”— “shall be construed to require a qualified health plan to provide coverage of [abortion] services . . . as part of its essential health benefits for any plan year.”
277. Section 1303 further states that it is “the issuer” of a plan that “shall determine whether or not the plan provides coverage” of abortion services.
278. Under the Affordable Care Act, Defendants do not have the authority to decide whether a plan covers abortion; only the issuer does.
279. However, the Mandate requires all issuers, including Plaintiffs and Plaintiffs’ insurance issuers Administration Systems Research Corporation, Private Healthcare Systems (PHCS), Cigna Health Insurance, Health Alliance Plan of Michigan (HAP), Physicians Care Health Plans, and Employee Health Insurance Management, to provide coverage of all Federal Drug Administration-approved contraceptives.
280. Some FDA-approved contraceptives cause abortions. 281. Under 5 U.S.C. § 706(2)(A), the Mandate is contrary to existing law, and is in violation of the Administrative Procedure Act. 282. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
PRAYER FOR RELIEF Wherefore, Plaintiffs request that the Court: a. Declare that the Mandate and Defendants’ enforcement of the Mandate against Plaintiffs violates the First Amendment to the United States Constitution;
41

2:13-cv-11296-PDB-RSW Doc # 1 Filed 03/22/13 Pg 42 of 42 Pg ID 42
b. Declare that the Mandate and Defendants’ enforcement of the Mandate against Plaintiffs violates the Religious Freedom Restoration Act;
c. Declare that the Mandate was issued in violation of the Administrative Procedure Act;
d. Issue both a preliminary and a permanent injunction prohibiting and enjoining Defendants from enforcing the Mandate against Plaintiffs and other religious individuals, employers, and companies that object to funding and providing insurance coverage for contraceptives, sterilization, abortion, abortifacients, and related education and counseling;
e. Award Plaintiffs the costs of this action and reasonable attorney’s fees; and f. Award such other and further relief as it deems equitable and just.
Respectfully submitted, THOMAS MORE LAW CENTER /s/ Erin Elizabeth Mersino Erin Elizabeth Mersino, Esq. (P70886) Richard Thompson, Esq. (P21410) 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, Michigan 48106 Tel (734) 827-2001 emersino@thomasmore.org
Counsel for Plaintiffs
42

 
 2:13-cv-11296-PDB-RSW Doc # 8 Filed 05/07/13 Pg 1 of 5 Pg ID 156

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

MERSINO MANAGEMENT COMPANY; KAREN A. )

MERSINO, Owner and Shareholder of Mersino

)

Southwest, LLC and Mersino Enterprises, Inc.,

)

and RODNEY A. MERSINO, Owner and Shareholder )

of Mersino Management Company, Global Pump

)

Company, LLC and Mersino Dewatering, Inc.,

)

)

Plaintiffs,

)

v.

)

)

KATHLEEN SEBELIUS, Secretary of the United States)

Department of Health and Human Services; UNITED )

STATES DEPARTMENT OF HEALTH AND

)

HUMAN SERVICES; SETH D. HARRIS, Acting )

Secretary of the United States Department of Labor; )

UNITED STATES DEPARTMENT OF LABOR;

)

JACK LEW, Secretary of the United States Department )

of the Treasury; and UNITED STATES

)

DEPARTMENT OF THE TREASURY,

)

)

Defendants.

)

)

Case No. 13-cv-11296-PDB-RSW
PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Judge Paul Borman
Magistrate Judge R. Steven Whalen

THOMAS MORE LAW CENTER Richard Thompson, Esq. (P21410) Erin Mersino, Esq. (P70886) 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, MI 48106 emersino@thomasmore.org (734) 827-2001

STUART F. DELERY Acting Assistant Attorney General
BARBARA L. McQUADE United States Attorney, E.D. of Michigan
SHEILA M. LIEBER Deputy Branch Director

Attorneys for Plaintiffs

BRADLEY P. HUMPHREYS Trial Attorney, VA Bar No. 83212 Civil Division, Federal Programs Branch United States Department of Justice 20 Massachusetts Ave. NW Washington, DC 20001 Tel: (202) 514-3367 Fax: (202) 616-8470 E-Mail: bradley.p.humphreys@usdoj.gov

Attorneys for Defendants

1

2:13-cv-11296-PDB-RSW Doc # 8 Filed 05/07/13 Pg 2 of 5 Pg ID 157
PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION & BRIEF IN SUPPORT
PLEASE TAKE NOTICE that at the earliest possible time for the court to hear this motion, Plaintiffs Mersino Management and Karen and Rodney Mersino (collectively “Plaintiffs”), by and through their undersigned counsel, hereby move this Court for a Temporary Restraining Order (“TRO”) pursuant to Fed. R. Civ. P. 65(b)(1) and Local Rule 65.1 in order to prevent immediate irreparable injury to Plaintiffs’ fundamental rights and interests. Subsequent to this Court’s determination on Plaintiffs’ Motion for a TRO and by way of this motion, Plaintiffs move for a Preliminary Injunction pursuant to Fed. R. Civ. P. 65(a) in order to prevent irreparable injury to Plaintiffs’ fundamental rights and interests after the expiration of time or the Court’s decision on the former part of this motion.
Plaintiffs rely upon the pleadings and papers of record, as well as their brief filed with this motion, and the declarations attached hereto. For the reasons set forth more fully below, Plaintiffs hereby request that this court enjoin the enforcement of Defendants’ Health and Human Services Mandate (hereinafter “HHS Mandate” or “Mandate”) which violates Plaintiffs’ rights guaranteed by the First Amendment to the United States Constitution and the Religious Freedom Restoration Act of 1993, 107 Stat. 1488, as amended, 42 U.S.C. § 2000bb et seq. For the purposes of this request for a temporary restraining order and preliminary injunctive relief, the Plaintiffs focus solely on Claims I-III and V-VIII of their complaint; however, Plaintiffs do not forfeit any of the claims alleged in their complaint.
1

2:13-cv-11296-PDB-RSW Doc # 8 Filed 05/07/13 Pg 3 of 5 Pg ID 158
1. The purpose of injunctive relief in this case is to permit Plaintiffs to continue to provide insurance to their employees that does not violate Plaintiffs’ constitutionally and statutorily granted right to free exercise of religion.
2. Without relief from this Court, the Plaintiffs will be irreparably harmed as the Plaintiffs’ constitutional rights will be violated.
3. This motion requires immediate attention for the reasons set forth more fully below. Plaintiffs hereby request that this Court enjoin the enforcement of Defendants’ Health and Human Services Mandate (hereinafter “HHS Mandate” or “mandate”) which violates Plaintiffs’ rights guaranteed by the First Amendment to the United States Constitution and the Religious Freedom Restoration Act of 1993, 107 Stat. 1488, as amended, 42 U.S.C. § 2000bb et seq.
4. Plaintiffs sincerely hold religious beliefs that disallow providing group health insurance with coverage for contraception and abortifacients.
5. Plaintiffs’ group health plan never provided coverage for contraception and abortifacients.
6. On June 1, 2013, the HHS Mandate will begin to apply to Plaintiffs’ group health plan this requiring the immediate attention of this Court.
7. On March 22, 2013, Plaintiffs filed their Complaint. 8. Plaintiffs served all Defendants with the Complaint. 9. Plaintiffs have made attempts to resolve this matter prior to seeking this relief from the Court. 10. Pursuant to Local Rule 7.1 and Local Rule 65.1, Plaintiffs sought concurrence in the relief requested by this Motion. Defendants through their counsel at the Department of
2

2:13-cv-11296-PDB-RSW Doc # 8 Filed 05/07/13 Pg 4 of 5 Pg ID 159
Justice, Civil Division, Federal Programs Branch, communicated that there would be no concurrence and a motion to the Court was necessary.
11. Plaintiffs’ counsel has provided notice of this request through the Court’s electronic filing system. Defendants’ counsel has filed an appearance and receives filings through the Court’s electronic filing system. The phone number for the Department of Justice, Civil Division, Federal Programs Branch is (202) 514-3367.
Respectfully submitted this 7th day of May, 2013. Attorneys for Plaintiffs: THOMAS MORE LAW CENTER s/ Erin Mersino_________________ Erin Mersino, Esq. (P70886) 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, MI 48106 (734) 827-2001 emersino@thomasmore.org s/ Richard Thompson_____________ Richard Thompson, Esq. (P21410) 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, MI 48106 (734) 827-2001 rthompson@thomasmore.org
3

2:13-cv-11296-PDB-RSW Doc # 8 Filed 05/07/13 Pg 5 of 5 Pg ID 160 CERTIFICATE OF SERVICE
I hereby certify that on May 7, 2013, a copy of the foregoing was filed electronically. Notice of this filing will be sent to all parties for whom counsel has entered an appearance by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s system. I certify that a copy of the foregoing has been served by ordinary U.S. Mail upon all parties for whom counsel has not yet entered an appearance electronically: None
THOMAS MORE LAW CENTER s/ Erin Mersino_________________ Erin Mersino, Esq. (P70886)
4

 
 2:13-cv-11296-PDB-RSW Doc # 16 Filed 05/23/13 Pg 1 of 33 Pg ID 231

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

____________________________________

)

MERSINO MANAGEMENT CO., et al., )

)

Plaintiffs,

)

)

v.

)

)

KATHLEEN SEBELIUS, et al.,

)

)

Defendants.

)

____________________________________)

Case No. 2:13-cv-11296 Judge Paul Borman Magistrate Judge R. Steven Whalen

DEFENDANTS’ MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

2:13-cv-11296-PDB-RSW Doc # 16 Filed 05/23/13 Pg 2 of 33 Pg ID 232
TABLE OF CONTENTS
TABLES OF AUTHORITIES ....................................................................................................... iii
ISSUES PRESENTED................................................................................................................... ix
CONTROLLING OR MOST APPROPRIATE AUTHORITIES ...................................................x
INTRODUCTION ...........................................................................................................................1
BACKGROUND .............................................................................................................................2
ARGUMENT ...................................................................................................................................4
I. PLAINTIFFS CANNOT ESTABLISH IRREPARABLE HARM......................................4
II. PLAINTIFFS CANNOT SHOW LIKELIHOOD OF SUCCESS ON THE MERITS ………………………………………………………………...............5
A. Plaintiffs’ Religious Freedom Restoration Act Claim Is Without Merit………………………………………………………………....5
1. The regulations do not substantially burden any exercise of religion by a for-profit, secular company and its owner……………………………………………………..............5
a. There is no substantial burden on MMC because a for-profit, secular company does not exercise religion .........................................................................5
b. The regulations do not substantially burden the Mersinos’ religious exercise because the regulations apply only to MMC, a separate and distinct legal entity…………………………………………… .......8
c. Alternatively, any burden imposed by the regulations is too attenuated to constitute a substantial burden ..........................................................................10
2. Even if there were a substantial burden on religious exercise, the regulations serve compelling governmental interests and are the least restrictive means to achieve those interests ...................12
a. The regulations significantly advance compelling governmental interests in public health and gender equality………………………………………………. ..................12
i

2:13-cv-11296-PDB-RSW Doc # 16 Filed 05/23/13 Pg 3 of 33 Pg ID 233 b. The regulations are the least restrictive means of advancing the government’s compelling interests.....................17
B. Plaintiffs’ Free Exercise Claim Is Without Merit ..................................................19 II. AN INJUNCTION WOULD INJURE THE GOVERNMENT
AND THE PUBLIC ……………………………………………………………………...20
ii

2:13-cv-11296-PDB-RSW Doc # 16 Filed 05/23/13 Pg 4 of 33 Pg ID 234
TABLE OF AUTHORITIES
FEDERAL CASES
Adams v. Comm'r of Internal Revenue, 170 F.3d 173 (3d Cir. 1999).............................................................................................. 18
Annex Medical, Inc. v. Sebelius, No. 12-cv-2804, 2013 WL 101927 (D. Minn. Jan. 8, 2013.......................................... 2, 11
Anselmo v. Cnty. of Shasta, No. CIV. 2:12-361 WBS EFB, 2012 WL 2090437 (E.D. Cal. 2012)................................. 7
Armstrong v. Sebelius, No. 1:13-cv-563-RBJ (D. Colo. May 10, 2013) ................................................................. 2
Autocam Corp. v. Sebelius, No. 1:12-cv-1096, 2012 WL 6845677 (W.D. Mich. Dec. 24, 2012)......................... passim
Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004) ........................................................................................ 20
Badillo v. Playboy Entm't Grp., No. 8:04-cv-591, 2004 WL 1013372 (M.D. Fla. Apr. 16, 2004) ....................................... 4
Bartel v. Kemmerer City, 482 F. App'x 323, 326 (10th Cir. 2012).............................................................................. 9
Braunfeld v. Brown, 366 U.S. 599 (1961)................................................................................................ 7, 11, 17
Briscoe v. Sebelius, Civil Action No. 13-cv-00285-WYD-BNB, 2013 WL 755413 (D. Colo. Feb. 27, 2013) ..................................................................................... 2, 6, 10, 19
Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487 (10th Cir. 1998) .......................................................................................... 12
Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158 (2001)............................................................................................................ 9
Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993)................................................................................................ 8, 14, 19
Commack Self-Service Kosher Meats, Inc. v. Hooker, 680 F.3d 194 (2d Cir. 2012)................................................................................................ 8
iii

2:13-cv-11296-PDB-RSW Doc # 16 Filed 05/23/13 Pg 5 of 33 Pg ID 235
Conestoga Wood Specialties Corp. v. Sebelius, Civil Action No. 12-6744, 2013 WL 140110 (E.D. Pa. Jan. 11, 2013) ..................... passim
Conestoga Wood Specialties Corp. v. Sebelius, No. 13-1144, 2013 WL 1277419 (3d Cir. Feb. 7, 2013) .................................... 2, 6, 11, 19
Corp. of the Presiding Bishop v. Amos, 483 U.S. 327 (1987)............................................................................................................ 7
Dole v. Shenandoah Baptist Church, 899 F.2d 1389 (4th Cir. 1990) .......................................................................................... 14
EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610 (9th Cir. 1988) .............................................................................................. 8
Eden Foods, Inc. v. Sebelius, No. 13-cv-11229, 2013 WL 1190001 (E.D. Mich. Mar. 22, 2013) ...................... 2, 6, 9, 11
Emp’t Dvi., Dep’t of Human Res. Of Or. v. Smith, 494 U.S. 872 (1990).................................................................................................... 19, 20
Fraternal Order of Police v. City of Newark, 170 F.3d 359 (3d Cir. 1999)................................................................................................ 7
Fund for Animals v. Frizzell, 530 F.2d 982 (D.C. Cir. 1975) ............................................................................................ 4
Gilardi v. Sebelius, Civil Action No. 13-104(EGS), 2013 WL 781150 (D.D.C. Mar. 3, 2013) .............. 2, 6, 10
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006)................................................................................................... passim
Graham v. Comm'r, 822 F.2d 844 (9th Cir. 1987) ...................................................................................... 13, 18
Grote v. Sebelius, 708 F.3d 850 (7th Cir. 2013) .............................................................................. 6, 9, 10, 11
Grote Indus., LLC v. Sebelius, No. 4:12-cv-00134-SEB-DML, 2012 WL 6725905 (S.D. Ind. Dec. 27, 2012) ........................................................................................ 2, 11, 19
Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278 (W.D. Okla. 2012) .................................................................. passim
iv

2:13-cv-11296-PDB-RSW Doc # 16 Filed 05/23/13 Pg 6 of 33 Pg ID 236
Hobby Lobby Stores, Inc. v. Sebelius, No. 12-6294, 2012 WL 6930302 (10th Cir. Dec. 20, 2012)......................................... 2, 11
Holy Land Found. v. Ashcroft, 333 F.3d 156 (D.C. Cir. 2003) ............................................................................................ 7
Holy Land Found. v. Ashcroft, 219 F. Supp. 2d 57 (D.D.C. 2002) ...................................................................................... 6
Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694 (2012) ................................................................................................ 6, 7, 10
Huron Mountain Club v. U.S. Army Corps of Eng'rs, No. 2:12-CV-197, 2012 WL 3060146 (W.D. Mich. July 25, 2012)................................... 4
Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in N. Am., 344 U.S. 94 (1952).............................................................................................................. 6
Korte v. HHS, No. 3:12-CV-01072-MJR, 2012 WL 6553996 (S.D. Ill. Dec. 14, 2012) .................. passim
LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d 217 (3d Cir. 2007)................................................................................................ 7
Legatus v. Sebelius, Case No. 12-12061, 2012 WL 5359630 (E.D. Mich. Oct. 31, 2012) ........................... 6, 14
Levitan v. Ashcroft, 281 F.3d 1313 (D.C. Cir. 2002) .......................................................................................... 6
Living Water Church of God v. Charter Twp. of Meridian, 258 F. App'x 729, 734 (6th Cir. 2007).............................................................................. 11
M.K. Chambers Co. v. Dep't of Health & Human Servs., No. 13-cv-11379, 2013 WL 1340719 (E.D. Mich. Apr. 3, 2013) ...................................... 2
McNeilly v. Land, 684 F.3d 611 (6th Cir. 2012) .............................................................................................. 5
Mead v. Holder, 766 F. Supp. 2d 16 (D.D.C. 2011) .................................................................................... 12
Nautilus Ins. Co. v. Reuter, 537 F.3d 733 (7th Cir. 2008) ............................................................................................ 10
v

2:13-cv-11296-PDB-RSW Doc # 16 Filed 05/23/13 Pg 7 of 33 Pg ID 237
New Life Baptist Church Acad. v. Town of E. Longmeadow, 885 F.2d 940 (1st Cir. 1989) ............................................................................................. 18
O'Brien v. HHS, 894 F. Supp. 2d 1149 (E.D. Mo. 2012)................................................................... 2, 11, 19
Potter v. Dist. of Columbia, 558 F.3d 542 (D.C. Cir. 2009) ............................................................................................ 8
Potthoff v. Morin, 245 F.3d 710 (8th Cir. 2001) .............................................................................................. 9
Roberts v. U.S. Jaycees, 468 U.S. 609 (1984).......................................................................................................... 12
S. Ridge Baptist Church v. Indus. Comm’n of Ohio, 911 F.2d 1203 (6th Cir. 1990) .......................................................................................... 17
Sharpe Holdings v. U.S. Dep’t Health & Human Servs., No. 2:12-cv-92-DDN, 2012 WL 6738489 (E.D. Mo. Dec. 31, 2012) .............................. 19
Sherbert v. Verner, 374 U.S. 398 (1963)............................................................................................................ 7
Spencer v. World Vision, Inc., 633 F.3d 723 (9th Cir. 2011) .............................................................................................. 7
Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) ............................................................................................ 8
Thomas v. Review Bd. of the Ind. Emp't Sec. Div., 450 U.S. 707 (1981)...................................................................................................... 7, 11
Torco Oil Co. v. Innovative Thermal Corp., 763 F. Supp. 1445 (N.D. Ill. 1991) ..................................................................................... 9
United States v. Israel, 317 F.3d 768 (7th Cir. 2003) ............................................................................................ 17
United States v. Lafley, 656 F.3d 936 (9th Cir. 2011) ............................................................................................ 18
United States v. Lee, 455 U.S. 252 (1982)............................................................................................ 7, 8, 14, 16
vi

2:13-cv-11296-PDB-RSW Doc # 16 Filed 05/23/13 Pg 8 of 33 Pg ID 238
United States v. Oliver, 255 F.3d 588 (8th Cir. 2001) ............................................................................................ 14
United States v. Wilgus, 638 F.3d 1274 (10th Cir. 2011) .................................................................................. 17, 18
Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982).......................................................................................................... 20
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)................................................................................................................ 4
Wisconsin v. Yoder, 406 U.S. 205 (1972)............................................................................................................ 7 STATE CASES
Catholic Charities of Diocese of Albany v. Serio, 859 N.E.2d 459 (N.Y. 2006)............................................................................................. 19
Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67 (Cal. 2004) .......................................................................................... 13, 18, 19
Handley v. Wyandotte Chems. Corp., 325 N.W.2d 447 (Mich. Ct. App. 1982) ............................................................................. 9
McClure v. Sports & Health Club, 370 N.W.2d 844 (Minn. 1985)........................................................................................ 7, 8 FEDERAL STATUTES
26 U.S.C. § 1402........................................................................................................................... 16 26 U.S.C. § 4980H ........................................................................................................................ 15 26 U.S.C. § 5000A ........................................................................................................................ 16 29 U.S.C. § 1132............................................................................................................................. 9 42 U.S.C. § 18021......................................................................................................................... 15 42 U.S.C. § 2000bb-1 ................................................................................................................. 5, 6 42 U.S.C. § 2000e-1.................................................................................................................. 7, 10 42 U.S.C. § 2000e-2........................................................................................................................ 7
vii

2:13-cv-11296-PDB-RSW Doc # 16 Filed 05/23/13 Pg 9 of 33 Pg ID 239
42 U.S.C. § 300gg-13 ............................................................................................................... 3, 15 Pub. L. No. 111-148, 124 Stat. 119 (2010)..................................................................................... 2 Pub. L. No. 103-141, 107 Stat. 1488 (1993)................................................................................... 5
FEDERAL REGULATIONS 45 C.F.R. § 147.130 .............................................................................................................. 3, 8, 16 45 C.F.R. § 46.202 .......................................................................................................................... 3 62 Fed. Reg. 8610 (Feb. 25, 1997) ................................................................................................. 3 75 Fed. Reg. 34,538 (June 17, 2010) ............................................................................................ 14 75 Fed. Reg. 41,726 (July 19, 2010)............................................................................................. 12 76 Fed. Reg. 46,603 (Aug. 3, 2011).......................................................................................... 3, 15 77 Fed. Reg. 8725 (Feb. 15, 2012)….. ............................................................................... 4, 12, 17 78 Fed. Reg. 8456 (Feb. 6, 2013)………………………………………………………………......4
LEGISLATIVE HISTORY 155 Cong. Rec. S12106-02, S12114 (daily ed. Dec. 2, 2009) ...................................................... 13 155 Cong. Rec. S12265-02, S12274 (daily ed. Dec. 3, 2009) ...................................................... 13 H.R. Rep. No. 111-443 (2010)...................................................................................................... 18
MISCELLANEOUS FDA, Birth Control Guide ...............................................................................................................3 HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines .....................3 INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN:
CLOSING THE GAPS (2011) ...................................................................................2, 3, 12, 13 Kaiser Family Foundation and Health Research & Educational Trust, Employer Health
Benefits 2012 Annual Survey ............................................................................................14 Mersino Management Co., Articles of Incorporation ......................................................................5
viii

2:13-cv-11296-PDB-RSW Doc # 16 Filed 05/23/13 Pg 10 of 33 Pg ID 240
ISSUES PRESENTED 1. Have plaintiffs established irreparable harm given the long delay between the
preventive services coverage regulations’ issuance and their commencement of this action? 2. Have plaintiffs shown a likelihood of success on their claim that the preventive services coverage regulations substantially burden their religious exercise under the Religious Freedom Restoration Act? 3. Assuming the preventive services coverage regulations substantially burden plaintiffs’ religious exercise, have plaintiffs shown a likelihood of success on their claim that the regulations do not serve compelling governmental interests or are not the least restrictive means to achieve those interests? 4. Have plaintiffs shown a likelihood of success on their claim that the preventive services coverage regulations violate the First Amendment’s Free Exercise Clause? 5. Assuming plaintiffs have shown a likelihood of success on the merits, have plaintiffs established that the public interest weighs in favor of granting injunctive relief?
ix

2:13-cv-11296-PDB-RSW Doc # 16 Filed 05/23/13 Pg 11 of 33 Pg ID 241
CONTROLLING OR MOST APPROPRIATE AUTHORITIES United States v. Lee, 455 U.S. 252 (1982) Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694 (2012) Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006) Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158 (2001) Corp. of the Presiding Bishop v. Amos, 483 U.S. 327 (1987) Autocam Corp. v. Sebelius, Order, No. 12-2673 (6th Cir. Dec. 28, 2012) Autocam Corp. v. Sebelius, No. 1:12-CV-1096, 2012 WL 6845677 (W.D. Mich. Dec. 24, 2012) Eden Foods v. Sebelius, No. 2:13-cv-11229-DPH-MAR (E.D. Mich. May 21, 2013) Hobby Lobby v. Sebelius, Order, No. 12-6294 (10th Cir. Dec. 20, 2012) Hobby Lobby v. Sebelius, 870 F. Supp. 2d 1278 (W.D. Okla. 2012) Conestoga Wood Specialties Corp. v. Sebelius, No. 13-1144 (3d Cir. Jan. 29, 2013) Conestoga Wood Specialties Corp. v. Sebelius, Civil Action No. 12-6744, 2013 WL 140110
(E.D. Pa. Jan. 11, 2013) O’Brien v. U.S. Dep’t of Health & Human Servs., No. 4:12-CV-476(CEJ), 2012 WL 4481208
(E.D. Mo. Sept. 28, 2012) Korte v. U.S. Dep’t of Health & Human Servs., No. 12-cv-01072-MJR, 2012 WL 6553996 (S.D.
Ill. Dec. 14, 2012) Grote Indus., LLC v. Sebelius, No. 4:12-cv-00134-SEB-DML, 2012 WL 6725905 (S.D. Ind.
Dec. 27, 2012) Annex Med., Inc. v. Sebelius, No. 12-2804, 2013 WL 101927 (D. Minn. Jan. 8, 2013) Gilardi v. Sebelius, Civil Action No. 13-104(EGS), 2013 WL 781150 (D.D.C. Mar. 3, 2013) Briscoe v. Sebelius, Civil Action No. 13-cv-00285-WYD-BNB, 2013 WL 755413 (D. Colo. Feb.
27, 2013)
x

2:13-cv-11296-PDB-RSW Doc # 16 Filed 05/23/13 Pg 12 of 33 Pg ID 242
INTRODUCTION Plaintiffs, a for-profit management corporation and its owners, claim that their sincerely held religious beliefs prohibit them from providing health coverage for contraceptive services as required by regulations. Plaintiffs’ motion for injunctive relief should be denied at the outset because plaintiffs’ inexplicable delay in bringing this action negates any claim of irreparable harm. The regulations were issued in August 2011, yet plaintiffs inexplicably waited well over a year and a half to file suit, and then waited an additional month and a half to move for so-called emergency relief. This Court should not grant plaintiffs the extraordinary remedy of a preliminary injunction given that plaintiffs have sat on their purported rights.1 In any event, plaintiffs have not shown a likelihood of success on the merits. Plaintiffs’ challenge rests largely on the theory that Mersino Management Company (“MMC”), a for-profit management corporation, can exercise religion and thereby avoid the reach of laws designed to regulate commercial activity. This cannot be. Indeed, the Supreme Court has recognized that, “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” United States v. Lee, 455 U.S. 252, 261 (1982). Nor can such a company’s owners or officers eliminate the legal separation provided by the corporate form to impose their personal religious beliefs on the corporation’s employees. To hold otherwise would permit for-profit, secular corporations and their shareholders and officers to become laws unto themselves, claiming countless exemptions from an untold number of general laws designed to improve the health and well-being of individual employees based on an infinite variety of alleged religious beliefs. Because there are an infinite variety of alleged religious beliefs, such companies and their owners could claim countless exemptions from general commercial laws designed to protect against unfair
1 Plaintiffs’ delay is all the more striking considering that plaintiffs’ counsel has been involved in similar litigation for over a year, see, e.g., Complaint, Legatus v. Sebelius, No. 2:12-cv-12061 (E.D. Mich., filed May 7, 2012), and thus has clearly been aware of the challenged regulations requirements long before plaintiffs filed their complaint.
1

2:13-cv-11296-PDB-RSW Doc # 16 Filed 05/23/13 Pg 13 of 33 Pg ID 243
discrimination in the workplace and to protect the health and well-being of individual employees and their families. Such a system would not only be unworkable, it would also cripple the government’s ability to solve national problems through laws of general application. This Court, therefore, should reject plaintiffs’ effort to bring about an unprecedented expansion of free exercise rights.
Indeed, motions panels for the Sixth, Tenth, and Third Circuits recently denied analogous motions for preliminary injunctive relief pending appeal. See Autocam Corp. v. Sebelius, No. 122673 (6th Cir. Dec. 28, 2012); Hobby Lobby Stores, Inc. v. Sebelius, No. 12-6294, 2012 WL 6930302, at *3 (10th Cir. Dec. 20, 2012), app. for inj. pending appellate review denied, No. 12A644, 2012 WL 6698888 (Sotomayor, J., in chambers); Conestoga Wood Specialties Corp. v. Sebelius, No. 13-1144, 2013 WL 1277419 (3d Cir. Feb. 7, 2013). Twelve district courts have also rejected plaintiffs’ arguments.2
BACKGROUND Before the Patient Protection and Affordable Care Act (“ACA”), Pub. L. No. 111-148, 124 Stat. 119 (2010), many Americans did not receive the preventive health care they needed to stay healthy, avoid or delay the onset of disease, lead productive lives, and reduce health care costs. Due largely to cost, Americans used preventive services at about half the recommended rate. See INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS 1920, 109 (2011) (“IOM REP.”), available at http://www.nap.edu/catalog.php?record_id=13181.
2 See Eden Foods v. Sebelius, No. 2:13-cv-11229-DPH, (W.D. Mich. May 13, 2013); Armstrong v. Sebelius, No. 1:13-cv-563-RBJ (D. Colo. May 10, 2013); M.K. Chambers Co. v. Dep’t of Health & Human Servs., No. 13-cv-11379, 2013 WL 1340719 (E.D. Mich. Apr. 3, 2013); Gilardi v. Sebelius, __ F. Supp. 2d __, 2013 WL 781150 (D.D.C. Mar. 3, 2013), appeal docketed sub nom. Gilardi v. HHS, No. 13-5069 (D.C. Cir. Mar. 3, 2013); Briscoe v. Sebelius, __ F. Supp. 2d __, 2013 WL 755413 (D. Colo. Feb. 27, 2013); Conestoga Wood Specialties Corp. v. Sebelius, __ F. Supp. 2d __, 2013 WL 140110 (E.D. Pa. Jan. 11, 2013); Annex Medical, Inc. v. Sebelius, No. 12-cv-2804, 2013 WL 101927 (D. Minn. Jan. 8, 2013), appeal pending, No. 13-1118 (8th Cir.); Grote Indus., LLC v. Sebelius, __ F. Supp. 2d __, 2012 WL 6725905 (S.D. Ind. Dec. 27, 2012), appeal pending sub nom. Grote v. Sebelius, No. 13-1077 (7th Cir.); Autocam Corp. v. Sebelius, No. 1:12-cv-1096, 2012 WL 6845677 (W.D. Mich. Dec. 24, 2012); Korte v. HHS, __ F. Supp. 2d __, 2012 WL 6553996 (S.D. Ill. Dec. 14, 2012), appeal pending, No. 12-3841 (7th Cir.); Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278 (W.D. Okla. 2012), appeal pending, No. 12-6294 (10th Cir.); O’Brien v. HHS, 894 F. Supp. 2d 1149 (E.D. Mo. 2012), appeal pending, No. 12-3357 (8th Cir.).
2

2:13-cv-11296-PDB-RSW Doc # 16 Filed 05/23/13 Pg 14 of 33 Pg ID 244
Section 1001 of the ACA, which includes the preventive services coverage provision relevant here, seeks to cure this problem by making preventive care affordable and accessible for many more Americans. Specifically, the provision requires all group health plans and health insurance issuers that offer non-grandfathered group or individual health coverage to provide coverage for certain preventive services without cost-sharing, including, “[for] women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [(HRSA)].” 42 U.S.C. § 300gg-13(a)(4).
Because there were no existing HRSA guidelines relating to preventive care and screening for women, HHS tasked the Institute of Medicine (“IOM”) with developing recommendations to implement the requirement to provide preventive services for women. IOM REP. at 2.3 After conducting an extensive science-based review, IOM recommended that HRSA guidelines include, as relevant here, “the full range of [FDA]-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” Id. at 10-12. FDA-approved contraceptive methods include diaphragms, oral contraceptive pills, emergency contraceptives (such as Plan B and Ella), and intrauterine devices (IUDs).4 FDA, Birth Control Guide, available at http://www.fda.gov/forconsumers/ byaudience/forwomen/ucm118465.htm. IOM determined that coverage, without cost-sharing, for these services is necessary to increase access, and thereby reduce unintended pregnancies (and the negative health outcomes that disproportionately accompany unintended pregnancies) and promote healthy birth spacing. IOM REP. at 102-03.
On August 1, 2011, HRSA adopted IOM’s recommendations, subject to an exemption relating to certain religious employers authorized by an amendment to the interim final regulations. See HRSA, Women’s Preventive Services: Required Health Plan Coverage
3 IOM, which was established by the National Academy of Sciences in 1970, is funded by Congress to provide expert advice to the federal government on matters of public health. IOM REP. at iv.
4 Although plaintiffs describe IUDs, Plan B, and Ella as abortion-causing devices and drugs, See, e.g., Compl. ¶¶ 167-75, Mar. 22, 2013, ECF No. 1, these devices and drugs are not abortifacients within the meaning of federal law. See, e.g., 62 Fed. Reg. 8610, 8611 (Feb. 25, 1997) (“Emergency contraceptive pills are not effective if the woman is pregnant[.]”); 45 C.F.R. § 46.202(f).
3

2:13-cv-11296-PDB-RSW Doc # 16 Filed 05/23/13 Pg 15 of 33 Pg ID 245
Guidelines (“HRSA Guidelines”), available at http://www.hrsa.gov/womensguidelines; 76 Fed. Reg. 46,603, 46,621 (Aug. 3, 2011); 45 C.F.R. § 147.130(a)(1)(iv)(A). In February 2012, the government adopted in final regulations the definition of “religious employer” while also creating a temporary enforcement safe harbor for non-grandfathered group health plans sponsored by certain non-profit organizations with religious objections to contraceptive coverage. 77 Fed. Reg. 8725, 8726-27 (Feb. 15, 2012). The government intends to amend the regulations during the safe harbor period to further accommodate non-profit religious organizations’ religious objections to covering contraceptive services, id. at 8728, and issued a Notice of Proposed Rulemaking on February 6, 2013, 78 Fed. Reg. 8456.
ARGUMENT A preliminary injunction is an “extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). A plaintiff “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20. I. PLAINTIFFS CANNOT ESTABLISH IRREPARABLE HARM The Court should deny plaintiffs ’ motion at the outset because plaintiffs’ inexplicable delay in bringing this action belies any claim of irreparable harm. The contraceptive coverage requirement was issued on August 1, 2011, but plaintiffs waited over a year and a half to file suit, and then another month and a half—until ju st weeks before the start of their health insurance plan year—to seek prelim inary injunctive relief. Such delay underm ines plaintiffs’ claim that p roviding the coverage w hile this case is reso lved will cause irreparable harm, and provides a sufficient basis for the Court to deny plaintiffs’ motion. See, e.g., Huron Mountain Club v. U.S. Army Corps of Eng’rs , No. 2:12-CV-197, 2012 W L 3060146, at *4 (W.D. Mich. July 25, 2012) (“[A] long delay in seeking relief indicates that speedy ac tion is not required.”); Fund for Animals v. Frizzell, 530 F.2d 982, 987 (D.C. Cir. 1975) (noting, in denying preliminary injunction, that delay of forty-four days after fi nal regulations were issu ed was “inexcusable”);
4

2:13-cv-11296-PDB-RSW Doc # 16 Filed 05/23/13 Pg 16 of 33 Pg ID 246
Badillo v. Playboy Entm’t Grp., No. 8:04-cv-591, 2004 W L 1013372, at *2 (M.D. Fla. Apr. 16, 2004) (concluding that nine-month delay was “fatal” to claim of irreparable harm). In any event, plaintiffs cannot show irreparable h arm because, as explained below, they have n ot shown a likelihood of success on the m erits. See McNeilly v. Land, 684 F.3d 611, 621 (6th Cir. 2012) (in free exercise context, a plaintiff cannot show harm without likelihood of success on the merits). II. PLAINTIFFS CANNOT SHOW LIKELIHOOD OF SUCCESS ON THE MERITS
A. Plaintiffs’ Religious Freedom Restoration Act Claim Is Without Merit 1. The regulations do not substantially burden any exercise of religion by a for-profit, secular company and its owner
Under the Religious Freedom Restoration Act, Pub. L. No. 103-141, 107 Stat. 1488 (1993) (codified at 42 U.S.C. § 2000bb-1), the federal government generally may not “substantially burden a person’s exercise of religion, ‘even if the burden results from a rule of general applicability.’” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424 (2006) (quoting 42 U.S.C. § 2000bb-1(a)). But the government may substantially burden the exercise of religion if the burden “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(b).
For several reasons, plaintiffs cannot show that the challenged regulations substantially burden any exercise of religion, and thus cannot succeed on their RFRA claim. First, MMC is not an individual or a “religious organization,” and thus cannot “exercise religion,” under RFRA. Second, because the regulations apply only to the corporation, and not to the Mersinos, the Mersinos’ religious exercise is not substantially burdened. And third, any burden imposed by the regulations is too attenuated to qualify as substantial.
a. There is no substantial burden on MMC because a for-profit, secular company does not exercise religion
Plaintiffs’ claim that MMC “exercise[s] . . . religion” within the meaning of RFRA, 42 U.S.C. § 2000bb-1(b), cannot be reconciled with MMC’s status as a secular company: its corporate activities are not religious; its Articles of Incorporation make no reference at all to any
5

2:13-cv-11296-PDB-RSW Doc # 16 Filed 05/23/13 Pg 17 of 33 Pg ID 247
religious purpose, see Mersino Management Co., Articles of Incorporation, available at http://www.dleg.state.mi.us/bcs_corp/sr_corp.asp (search by corporation name required); it does not claim to be affiliated with or managed by any formally religious entity; and it does not assert that it employs persons of a particular faith. Although defendants do not question the sincerity of the Mersinos’ religious beliefs, the sincere religious beliefs of a corporation’s owners do not make the corporation religious. Otherwise, every corporation with a religious owner—no matter how secular the corporation’s purpose—would be considered religious, which would dramatically expand the scope of RFRA and the Free Exercise Clause. See Grote, 708 F.3d at 856-58 (Rovner, J., dissenting) (describing the potential consequences of such an expansion); see also Autocam, 2012 WL 6845677, at *7-8. Because MMC is a secular corporation, it—by definition—does not engage in any “exercise of religion,” 42 U.S.C. § 2000bb-1(a), as required by RFRA. See Levitan v. Ashcroft, 281 F.3d 1313, 1320 (D.C. Cir. 2002); Holy Land Found. v. Ashcroft, 219 F. Supp. 2d 57, 83 (D.D.C. 2002), aff’d, 333 F.3d 156 (D.C. Cir. 2003). After all, the terms “religious” and “secular” are antonyms; a “secular” entity is defined as “not overtly or specifically religious.” See Merriam-Webster’s Coll. Dictionary 1123 (11th ed. 2003).
Numerous courts have rejected RFRA challenges nearly identical to MMC’s on this basis. See, e.g., Conestoga, 2013 WL 1277419, at *2; Hobby Lobby, 870 F. Supp. 2d at 1287, 1296.5 Indeed, the government is aware of no case in which a secular, for-profit employer like MMC prevailed on a RFRA claim. After all, although the First Amendment freedoms of speech and association are “right[s] enjoyed by religious and secular groups alike,” the Free Exercise Clause “gives special solicitude to the rights of religious organizations.” Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 706 (2012) (emphasis added). The cases are replete with statements like this. See, e.g., Kedroff v. Saint Nicholas Cathedral of
5 See also Eden Foods, Order at 6-10; Gilardi, 2013 WL 781150, at *6-8; Briscoe, 2013 WL 755413, at *45; Korte, 2012 WL 6553996, at *6; Conestoga, 2013 WL 140110, at *6-7, 10. By contrast, those courts that have ruled against defendants in similar cases have unanimously bypassed the question of whether a for-profit, secular corporation can exercise religion under RFRA. See, e.g., Legatus v. Sebelius, Case No. 12-12061, 2012 WL 5359630, at *5 (E.D. Mich. Oct. 31, 2012) (declining to decide “whether [plaintiff], as a for-profit business, has an independent First Amendment right to free exercise of religion”).
6

2:13-cv-11296-PDB-RSW Doc # 16 Filed 05/23/13 Pg 18 of 33 Pg ID 248
Russian Orthodox Church in N. Am., 344 U.S. 94, 116 (1952) (the Supreme Court’s precedent “radiates . . . a spirit of freedom for religious organizations, an independence from secular control or manipulation”) (emphasis added); Hosanna-Tabor, 132 S. Ct. at 706 (Free Exercise Clause “protects a religious group’s right to shape its own faith and mission”) (emphasis added); Anselmo v. Cnty. of Shasta, 2012 WL 2090437, at *12 (E.D. Cal. 2012). Because RFRA incorporates Free Exercise jurisprudence, the same logic applies. See Holy Land Found., 333 F.3d at 167. In short, only a religious organization can “exercise religion” under RFRA.
No court has ever held that a for-profit, secular corporation is a “religious corporation” for purposes of federal law. For example, it is clear that MMC does not qualify as a “religious corporation” for the purposes of Title VII. See, e.g., LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 226 (3d Cir. 2007); Spencer v. World Vision, Inc., 633 F.3d 723, 734, 748 (9th Cir. 2011). As a result, secular companies like MMC cannot permissibly discriminate on the basis of religion in hiring or firing employees or otherwise establishing the terms and conditions of employment. See 42 U.S.C. § 2000e-1(a), 2(a). It would be extraordinary to conclude that, nevertheless, MMC exercises religion within the meaning of RFRA. Such a conclusion would allow a secular corporation to impose its owner’s religious beliefs on its employees in a way that denies those employees the protection of general laws designed to protect their health and wellbeing. A host of laws and regulations would be subject to attack. Moreover, any secular corporation would have precisely the same right as a religious organization to, for example, require that its employees “observe the [company owner’s] standards in such matters as regular church attendance, tithing, and abstinence from coffee, tea, alcohol, and tobacco.” Corp. of the Presiding Bishop v. Amos, 483 U.S. 327, 330 n.4 (1987). These consequences underscore why the Free Exercise Clause, RFRA, and Title VII distinguish between secular and religious organizations, with only the latter receiving special protection.6
6 None of the cases plaintiffs cite held that a for-profit, secular corporation may exercise religion, and the government is not aware of any such case. See Hobby Lobby, 870 F. Supp. 2d at 1288. Sherbert v. Verner, 374 U.S. 398 (1963); Wisconsin v. Yoder, 406 U.S. 205 (1972); Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707 (1981); and Fraternal Order of Police v. City of Newark, 170 F.3d 359 (3d Cir. 1999), involved individual
(continued on next page…)
7

2:13-cv-11296-PDB-RSW Doc # 16 Filed 05/23/13 Pg 19 of 33 Pg ID 249
It is significant that the Mersinos elected to organize MMC as a secular, for-profit entity and to enter commercial activity. “When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” Lee, 455 U.S. at 261; see also McClure v. Sports & Health Club, 370 N.W.2d 844, 853 (Minn. 1985) (“By engaging in this secular endeavor, appellants have passed over the line that affords them absolute freedom to exercise religious beliefs.”). Having chosen this path, the corporation may not impose its owners’ personal religious beliefs on its employees by refusing to cover certain contraceptive services. Lee, 455 U.S. at 261.
b. The regulations do not substantially burden the Mersinos’ religious exercise because the regulations apply only to MMC, a separate and distinct legal entity
The regulations also do not substantially burden the Mersinos’ religious exercise. By their terms, the regulations apply to group health plans and health insurance issuers. See, e.g., 45 C.F.R. § 147.130. The Mersinos are neither. Nonetheless, the Mersinos claim that the regulations substantially burden their religious exercise because the regulations require the group health plan sponsored by their for-profit secular company to provide health insurance that includes certain contraceptive coverage. But a plaintiff cannot establish a substantial burden on his religious exercise by invoking this type of trickle-down theory. Indeed, cases that find a substantial burden uniformly involve a direct burden on the plaintiff rather than a burden imposed on another, legally separate, entity. See, e.g., Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 524 (1993); Potter v. Dist. of Columbia, 558 F.3d 542, 546 (D.C. Cir. 2009).
plaintiffs, not corporations. The plaintiff in Lee, 455 U.S. 252, was an Amish individual who employed several other people on his farm, not a secular company, much less a corporation with layers of legal separation from its owner. In McClure, 370 N.W.2d at 854, a state hearing examiner “pierced the ‘corporate veil’” to make the individual owners of the stock and assets of a corporation “liable for the illegal actions of” the corporation. Braunfeld v. Brown, 366 U.S. 599 (1961), and Commack Self-Service Kosher Meats, Inc., 680 F.3d 194 (2d Cir. 2012), rejected free exercise challenges to state laws that regulated retail store hours and kosher food labels. And both Stormans, Inc. v. Selecky, 586 F.3d 1109, 1119 (9th Cir. 2009), and EEOC v. Townley Engineering and Manufacturing Co., 859 F.2d 610, 619-20 (9th Cir. 1988), both declined to decide whether “a for-profit corporation can assert its own rights under the Free Exercise Clause.”
8

2:13-cv-11296-PDB-RSW Doc # 16 Filed 05/23/13 Pg 20 of 33 Pg ID 250
The Mersinos’ theory boils down to the claim that what’s done to the corporation (or group health plan sponsored by the corporation)7 is also done to its owner. But, as a legal matter, that is simply not so. The Mersinos chose to enter into commerce and elected to do so by establishing a for-profit corporation—a “creature of statute” that is its “own ‘person’ under Michigan law, [ ] distinct and separate from [its] owners.” Handley v. Wyandotte Chems. Corp., 325 N.W.2d 447, 449 (Mich. Ct. App. 1982). Indeed, “incorporation’s basic purpose is to create a distinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created it, who own it, or whom it employs.” Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 163 (2001). In short, “[t]he corporate owner/employee, a natural person, is distinct from the corporation itself, a legally different entity with different rights and responsibilities due to its different legal status.” Id.
“Generally, if a harm has been directed toward the corporation, then only the corporation has standing to assert a claim,” and this “shareholder standing rule applies even if the plaintiff is the sole shareholder of the corporation.” Potthoff v. Morin, 245 F.3d 710, 716 (8th Cir. 2001) (citing cases); see also Bartel v. Kemmerer City, 482 F. App’x 323, 326 (10th Cir. 2012) (unpublished). The Mersinos “may not move freely between corporate and individual status to gain the advantages and avoid the disadvantages of the respective forms.” Potthoff, 245 F.3d at 717 (quotation omitted). “So long as the business’s liabilities are not [the Mersinos’] liabilities— which is the primary and ‘invaluable privilege’ conferred by the corporate form, Torco Oil Co. v. Innovative Thermal Corp., 763 F. Supp. 1445, 1451 (N.D. Ill. 1991) (Posner, J., sitting by designation)—neither are the business’s expenditures [the Mersinos’] own expenditures.” Grote, 708 F.3d at 858 (Rovner, J., dissenting). The money used to pay for health coverage under the MMC’s group health plan “belongs to the company, not to” the Mersinos. Id. The Mersinos should not be permitted to eliminate the legal separation between corporation and owner only when it suits them to impose their personal religious beliefs on the corporate entity’s group
7 The attenuation here is in fact twice removed, as a group health plan is a legally separate entity from the company that sponsors it. 29 U.S.C. § 1132(d).
9

2:13-cv-11296-PDB-RSW Doc # 16 Filed 05/23/13 Pg 21 of 33 Pg ID 251
health plan or its employees. For this reason, numerous courts have rejected RFRA challenges nearly identical to the Mersinos’ claim.8
All corporations, of course, act through human agency; but that cannot mean that any legal obligation imposed on a corporation is also the owner’s obligation or that the owners’ and corporation’s rights are coextensive. If that were true, any of the millions of shareholders of publicly traded companies could assert RFRA claims on those companies’ behalf and thereby impose the shareholders’ beliefs on the companies’ employees in a way that deprives them of legal rights they would otherwise have, such as by discriminating against the company’s employees on the basis of religion in establishing the conditions of employment notwithstanding the limited religious exemption that Congress established under Title VII. This result would constitute a wholesale evasion of the rule that a company must be a “religious organization” to assert free exercise rights, Hosanna-Tabor, 132 S. Ct. at 706, or a “religious corporation” to permissibly discriminate on the basis of religion in employment, 42 U.S.C. § 2000e-1(a).
c. Alternatively, any burden imposed by the regulations is too attenuated to constitute a substantial burden
Although the regulations do not require MMC or the Mersinos to provide contraceptive services directly, plaintiffs’ complaint appears to be that, through MMC’s health plan and the benefits it provides to employees, plaintiffs will facilitate conduct (the use of certain contraceptives) that they find objectionable. But this complaint has no limits. A company provides numerous benefits, including a salary, to its employees and by doing so in some sense
8 See Eden Foods, Order at 6-10; Gilardi, 2013 WL 781150, at *4-5, *9-10; Briscoe, 2013 WL 755413, at *5-6; Conestoga, 2013 WL 140110, at *14; Autocam, 2012 WL 6845677, at *7; Korte, 2012 WL 6553996, at *9-11; Hobby Lobby, 870 F. Supp. 2d at 1293-96.
On the other hand, the courts to have granted preliminary injunctive relief in cases similar to this one have uniformly ignored or disregarded the legal separation between corporations and their owners. A company and its owners, however, cannot be treated as alter-egos for some purposes and not others; if the corporate veil is pierced, it is pierced for all purposes. See, e.g., Nautilus Ins. Co. v. Reuter, 537 F.3d 733, 738 (7th Cir. 2008); Korte, 2012 WL 6553996, at *11; Autocam, 2012 WL 6845677, at *7 (“Whatever the ultimate limits of this principle may be, at a minimum it means the corporation is not the alter ego of its owners for purposes of religious belief and exercise.”); Conestoga, 2013 WL 140110, at *8 (“It would be entirely inconsistent to allow the [corporation’s owners] to enjoy the benefits of incorporation, while simultaneously piercing the corporate veil for the limited purpose of challenging these regulations.”); Grote, 708 F.3d 850, 856 (Rovner, J., dissenting).
10

2:13-cv-11296-PDB-RSW Doc # 16 Filed 05/23/13 Pg 22 of 33 Pg ID 252
facilitates whatever use its employees make of those benefits. But the owners have no right to control the choices of their company’s employees, who may not share their religious beliefs, when making use of their benefits.
Indeed, in denying the plaintiffs’ motion for emergency relief pending appeal, a motions panel of the Sixth Circuit concluded as much. See Autocam, Order at 2 (relying on the district court’s reasoned opinion in determining that the plaintiffs had not established more than a mere possibility of relief). Other courts too have relied on similar reasoning to reject similar plaintiffs’ RFRA claims. See, e.g., Hobby Lobby, 2012 WL 6930302, at *3; O’Brien, 894 F. Supp. 2d at 1159 (“[RFRA] is not a means to force one’s religious practices upon others. RFRA does not protect against the slight burden on religious exercise that arises when one’s money circuitously flows to support the conduct of other free-exercise-wielding individuals who hold religious beliefs that differ from one’s own.”), appeal pending, No. 12-3357 (8th Cir. Oct. 4, 2012).9 Although “[c]ourts are not arbiters of scriptural interpretation,” Thomas, 450 U.S. at 716, “RFRA still requires the court to determine whether the burden a law imposes on a plaintiff’s stated religious belief is ‘substantial.’” Conestoga, 2013 WL 140110, at *12; see also Autocam, 2012 WL 6845677, at *6; see also Living Water Church of God v. Charter Twp. of Meridian, 258 F. App’x 729, 734 (6th Cir. 2007) (“In the ‘Free Exercise’ context, the Supreme Court has made clear that the ‘substantial burden’ hurdle is high.”). For the reasons set forth above, any burden imposed by the challenged regulations is not substantial within the meaning of RFRA.10
9 See also Eden Foods, Order at 8-10; Conestoga, 2013 WL 1277419, at *2; Grote, 708 F.3d 850 (Rovner, J., dissenting); Conestoga, 2013 WL 140110, at *13-14; Annex Med., Inc. v. Sebelius, 2013 WL 101927, at *4-5 (D. Minn. Jan. 8, 2013), appeal pending, No. 13-1118 (8th Cir. Jan. 11, 2013); Grote Indus., 2012 WL 6725905, at *47; Hobby Lobby, 870 F. Supp. 2d at 1293-96.
10 Plaintiffs “misunderstand the principle asserted in Thomas, [450 U.S. at 718],” when they claim that the case establishes that an indirect burden may nonetheless be substantial. Conestoga, 2013 WL 140110, at *14 n.15. “While a compulsion may certainly be indirect and still constitute a substantial burden, such as the denial of a benefit found in Thomas, ‘[t]o strike down, without the most critical scrutiny, legislation which imposes only an indirect burden on the exercise of religion . . . would radically restrict the operating latitude of the legislature.’” Id. (quoting Braunfeld, 366 U.S. at 606).
11

2:13-cv-11296-PDB-RSW Doc # 16 Filed 05/23/13 Pg 23 of 33 Pg ID 253

2. Even if there were a substantial burden on religious exercise, the regulations serve compelling governmental interests and are the least restrictive means to achieve those interests

a. interests

The regulations significantly advance compelling governmental in public health and gender equality

“[T]he Government clearly has a compelling interest in safeguarding the public health by

regulating the health care and insurance markets.” Mead v. Holder, 766 F. Supp. 2d 16, 43 (D.D.C. 2011); see also, e.g., Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487, 498 (10th

Cir. 1998). And the challenged regulations further this compelling interest. The primary

predicted benefit of the regulations is that “individuals will experience improved health as a result of reduced transmission, prevention or delayed onset, and earlier treatment of disease.” 75

Fed. Reg. 41,726, 41,733 (July 19, 2010); see also 77 Fed. Reg. at 8727. Indeed, “[b]y expanding coverage and eliminating cost sharing for recommended preventive services, these interim final

regulations could be expected to increase access to and utilization of these services, which are

not used at optimal levels today.” 75 Fed. Reg. at 41,733. Increased access to FDA-approved contraceptive services is a key part of these predicted health outcomes, as a lack of contraceptive

use has proven in many cases to have negative health consequences for both women and a

developing fetus. As IOM concluded in identifying services recommended to “prevent conditions harmful to women’s health and well-being,” unintended pregnancy may delay “entry into

prenatal care,” prolong “behaviors that present risks for the developing fetus,” and cause

“depression, anxiety, or other conditions.” IOM REP. at 20, 103-04. Contraceptive coverage also helps to avoid “the increased risk of adverse pregnancy outcomes for pregnancies that are too

closely spaced.” Id. at 103. Closely tied to this interest is a related compelling interest in “removing the barriers to

economic advancement and political and social integration that have historically plagued certain

disadvantaged groups, including women.” Roberts v. U.S. Jaycees, 468 U.S. 609, 626 (1984). By including in the ACA gender-specific preventive health services for women, Congress made

clear that the goals and benefits of effective preventive health care apply equally to women, who

might otherwise be excluded from such benefits if their unique health care needs and higher out-

12

2:13-cv-11296-PDB-RSW Doc # 16 Filed 05/23/13 Pg 24 of 33 Pg ID 254
of-pocket costs were not taken into account in the ACA. See 155 Cong. Rec. S12106-02, S12114 (daily ed. Dec. 2, 2009). These costs result in women often forgoing preventive care. See, e.g., 155 Cong. Rec. S12265-02, S12274 (daily ed. Dec. 3, 2009); IOM REP. at 20. Congress’s attempt to equalize the provision of preventive health care services, with the resulting benefit of women being able to equally contribute as healthy and productive members of society, furthers a compelling governmental interest. Cf. Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67, 92-93 (Cal. 2004).
Of course, the government’s interest in ensuring access to contraceptive services is particularly compelling for women employed by companies that wish to eliminate such coverage, like MMC. Taking into account the “particular claimant whose sincere exercise of religion is [purportedly] being substantially burdened,” O Centro, 546 U.S. at 430-31, exempting MMC and other similar companies from the obligation of their health plans to cover contraceptive services without cost-sharing would remove its employees (and their employees’ families) from the very protections that were intended to further the compelling interests recognized by Congress. See, e.g., Graham v. Comm’r, 822 F.2d 844, 853 (9th Cir. 1987) (“Where, as here, the purpose of granting the benefit is squarely at odds with the creation of an exception, we think the government is entitled to point out that the creation of an exception does violence to the rationale on which the benefit is dispensed in the first instance.”). Women who work for MMC or similarly situated companies would be, as a whole, less likely to use contraceptive services in light of the financial barriers to obtaining them and would then be at risk of unhealthier outcomes, both for themselves and their newborn children. IOM REP. at 10203. They also would have unequal access to preventive care and would be at a competitive disadvantage in the workforce due to their inability to decide for themselves if and when to bear children. These harms would befall female employees (and covered spouses and dependents) who do not necessarily share the individual plaintiffs’ religious beliefs. Plaintiffs’ desire not to provide a health plan that permits such individuals to exercise their own choice must yield to the government’s compelling interest in avoiding the adverse and unfair consequences that such
13

2:13-cv-11296-PDB-RSW Doc # 16 Filed 05/23/13 Pg 25 of 33 Pg ID 255
individuals would suffer as a result of the company’s decision to impose the company’s owners’
religious beliefs on them. See Lee, 455 U.S. at 261 (noting that a religious exemption is improper
where it “operates to impose the employer’s religious faith on the employees”).11
Plaintiffs argue that the interests underlying the regulations cannot be considered
compelling when millions of people are not protected by the regulations at the moment. But this
is not a case where underinclusive enforcement of a law suggests that the government’s
“supposedly vital interest” is not really compelling. Lukumi, 508 U.S. at 546-47. First, the
ACA’s grandfathering is not a permanent “exception”—it is transitional, and it is expected that a
majority of plans will lose their grandfathered status by the end of 2013. See 75 Fed. Reg.
34,538, 34,552 (June 17, 2010).12 Grandfathering thus does nothing to call into question the
compelling interests furthered by the regulations, as this provision is “a reasonable plan for
instituting an incredibly complex health care law while balancing competing interests.”13 Legatus
v. Sebelius, Case No. 12-12061, 2012 WL 5359630, *9 (E.D. Mich. Oct. 31, 2012), appeal
docketed, No. 13-1092 (6th Cir. Jan. 24, 2013); see also Lee, 455 U.S. at 259 (“The Court has
11 To the degree plaintiffs assert that defendants must show a compelling interest as to MMC specifically, separately analyzing the need for the regulations as to each and every employer and employee in America, plaintiffs are mistaken. That level of specificity would be nearly impossible to establish and would render this regulatory scheme—and potentially any regulatory scheme challenged due to religious objections—completely unworkable. In practice, courts have not required the government to analyze the impact of a regulation on the single entity seeking an exemption, but have expanded the inquiry to all similarly situated individuals or organizations. See, e.g., Lee, 455 U.S. at 260; United States v. Oliver, 255 F.3d 588, 589 (8th Cir. 2001) (per curiam); Dole v. Shenandoah Baptist Church, 899 F.2d 1389, 1398 (4th Cir. 1990). O Centro is not to the contrary, as the Court construed the scope of the requested exemption as encompassing all members of the plaintiff religious sect. O Centro, 546 U.S. at 433. The Court’s warning against “slippery-slope” arguments was a rejection of arguments by analogy—that is, speculation that providing an exemption to one group will lead to exemptions for other non-similarly situated groups. It was not an invitation to ignore the reality that an exemption for a particular claimant might necessarily lead to an exemption for an entire category of similarly situated entities.
12 Plaintiffs grossly overstate the number of individuals in grandfathered plans, and the number of grandfathered plans is significantly and steadily declining. See Kaiser Family Foundation and Health Research & Educational Trust, Employer Health Benefits 2012 Annual Survey at 7-8, 190, available at http://ehbs.kff.org/pdf/2012/8345.pdf (last visited April 29, 2013) (indicating that 58 percent of firms had at least one grandfathered health plan in 2012, down from 72 percent in 2011, and that 48 percent of covered workers were in grandfathered health plans in 2012, down from 56 percent in 2011); see also 75 Fed. Reg. at 34,553 (noting that, by 2012, the government’s mid-range estimate is that 38 percent of employer plans will have lost grandfathered status, and that by the end of 2013, this mid-range estimate increases to 51 percent); Korte, 2012 WL 6553996, at *7 n.12.
13 The same is true of the temporary enforcement safe harbor for certain non-profit organizations with religious objections to contraceptive coverage.
14

2:13-cv-11296-PDB-RSW Doc # 16 Filed 05/23/13 Pg 26 of 33 Pg ID 256
long recognized that balance must be struck between the values of the comprehensive social
security system . . . and the consequences of allowing religiously based exemptions.”).14
Second, 26 U.S.C. § 4980H(c)(2) does not, as plaintiffs assert, exempt small employers
from the preventive services coverage regulations. See 42 U.S.C. § 300gg-13(a); 76 Fed. Reg. at
46,622 n.1. Instead, it excludes employers with fewer than fifty full-time equivalent employees
from the employer responsibility provision, meaning that, starting in 2014, such employers are
not subject to assessable payments if they do not provide health coverage to their full-time
employees and certain other criteria are met.15 See 26 U.S.C. § 4980H(c)(2). Employees of these
small businesses can get health insurance through other ACA provisions, primarily premium tax
credits and health insurance exchanges, and the coverage they receive will include all preventive
services, including contraception.16 In addition, small businesses that offer non-grandfathered
health coverage to their employees are required to provide coverage for recommended preventive
services, including contraceptive services, without cost-sharing. And there is reason to believe
14 Plaintiffs also argue that the government’s compelling interest is somehow diminished because the government has not opposed the plaintiffs’ motion for a preliminary injunction in several cases in the Seventh and Eighth Circuits. Contrary to plaintiffs’ suggestion, however, defendants’ actions say nothing about the government’s undoubtedly compelling interest and reflect only sound motions practice based on a clear-eyed assessment of the current legal landscape with respect to the various lawsuits challenging the preventive services coverage regulations.
In each of the cases that plaintiffs identify, the government did not oppose the plaintiffs’ motion for a preliminary injunction because of the rulings of multiple motions panels in the Seventh and Eighth Circuits in which the plaintiffs’ motions for a preliminary injunction were filed granting the plaintiffs’ motion for injunctive relief pending appeal. The same concerns do not apply here, of course, because this Court does not lie within either the Seventh or Eighth Circuits. Indeed, in Autocam, a motions panel for the Sixth Circuit indicated that the plaintiffs had “not demonstrated more than a possibility of relief,” and denied the plaintiffs emergency motion for a preliminary injunction pending appeal. Order. at 2. Thus, whereas in the cases that plaintiffs identify, the relevant circuit authority suggests that a preliminary injunction pending appeal is likely to be granted—at least until the cases can be considered fully on the merits—here, the Sixth Circuit has already denied an analogous motion in a case that is factually similar and that raises identical issues.
15 In contrast, beginning in 2014, certain large employers face assessable payments if they fail to provide health coverage for their employees under certain circumstances. 26 U.S.C. § 4980H.
16 For this reason, even if there were some connection between the preventive services coverage provision and the employer responsibility provision, excluding small employers from the employer responsibility provision would not undermine the government’s compelling interest in ensuring that employees have access to recommended preventive services. As noted, employees of small employers that do not provide health coverage will be able to obtain health coverage through health insurance exchanges, and, if eligible, receive premium tax credits and costsharing reductions to assist them in affording such coverage. See 42 U.S.C. § 18021; id. § 18031(d)(2)(B)(i). Because the preventive services coverage requirement applies to the health plans being offered through the exchanges, the coverage individuals buy there will necessarily cover recommended contraceptive services. Id. § 300gg-13(a).
15

2:13-cv-11296-PDB-RSW Doc # 16 Filed 05/23/13 Pg 27 of 33 Pg ID 257
that many small employers will continue to offer health coverage to their employees, because the ACA, among other things, provides for tax incentives for small businesses to encourage the purchase of health insurance. See id. § 45R.
Third, although 26 U.S.C. § 5000A(d)(2) exempts from the minimum coverage provision of the ACA “member[s] of a recognized religious sect or division thereof” who, on the basis of their religion, are opposed to the concept of health insurance and members of health care sharing ministries, this provision is entirely unrelated to the preventive services coverage regulations. See also id. § 1402(g)(1). The minimum coverage provision will require certain individuals who fail to maintain a minimum level of health insurance to pay a tax penalty beginning in 2014. It provides no exemption from the preventive services coverage regulations, as it only excludes certain individuals from the requirement to obtain health coverage and says nothing about the requirement that non-grandfathered group health plans provide preventive services coverage to their participants. It is also clearly an attempt by Congress to accommodate religion and, unlike the broad exemption sought by plaintiffs, is sufficiently narrow so as not to undermine the larger administrative scheme. See Lee, 455 U.S. at 260-61.17
The only true exemption from the preventive services coverage regulations cited by plaintiffs is the exemption for “religious employer[s],” 45 C.F.R. § 147.130(a)(1)(iv)(B). But there is a rational distinction between the narrow exception currently in existence and the expansion plaintiffs seek. A “religious employer” is an employer that, among other things, has the “inculcation of religious values” as its purpose and “primarily employs persons who share the religious tenets of the organization.” Id. Thus, the exception does not undermine the government’s compelling interests. It anticipates that the impact on employees of exempted
17 Furthermore, exempting these discrete and “readily identifiable,” id., classes of individuals from the minimum coverage provision is unlikely to appreciably undermine the compelling interests motivating the preventive services coverage regulations. By definition, a woman who is “conscientiously opposed to acceptance of the benefits of any private or public insurance which . . . makes payments toward the cost of, or provides services for, medical care,” 26 U.S.C. § 1402(g)(1), or is a member of a health care sharing ministry described in 26 U.S.C. § 5000A(d)(2)(B)(ii) would not utilize health coverage—including contraceptive coverage—even if it were offered.
16

2:13-cv-11296-PDB-RSW Doc # 16 Filed 05/23/13 Pg 28 of 33 Pg ID 258
organizations will be minimal, given that any religious objections of the exempted organizations are presumably shared by most of the individuals actually making the choice of whether to use contraceptive services. See 77 Fed. Reg. at 8728.
The same is not true for MMC, which does not and cannot discriminate based upon religious beliefs in hiring, and therefore almost certainly employs many individuals who do not share the Mersinos’ religious beliefs. If courts were to grant plaintiffs’ request to extend the protections of RFRA to any employer whose owners or shareholders object to the regulations, it is difficult to see how the regulations could continue to function or be enforced in a rational manner. See O Centro, 546 U.S. at 435. We are a “cosmopolitan nation made up of people of almost every conceivable religious preference,” Braunfeld, 366 U.S. at 606; see also S. Ridge Baptist Church, 911 F.2d at 1211, and many people object to countless medical services. If any organization, no matter the high degree of attenuation between the mission of that organization and the exercise of religious belief, were able to seek an exemption from the operation of the preventive services coverage regulations, it is hard to imagine how defendants could administer the regulations in a manner that would achieve Congress’s goals of improving the health of women and children and equalizing the coverage of preventive services for women. See United States v. Israel, 317 F.3d 768, 772 (7th Cir. 2003). Indeed, women who receive their health coverage through corporations like MMC would face negative health and employment outcomes because they had obtained employment with a company that imposes its owners’ religious beliefs on their health care needs. See id. at 772; 77 Fed. Reg. at 8728.
b. The regulations are the least restrictive means of advancing the government’s compelling interests.
When determining whether a particular regulatory scheme is “least restrictive,” the appropriate inquiry is whether the individual or organization with religious objections, and those similarly situated, can be exempted from the scheme—or whether the scheme can otherwise be modified—without undermining the government’s compelling interest. See, e.g., United States v. Wilgus, 638 F.3d 1274, 1289-95 (10th Cir. 2011). The government is not required “to do the
17

2:13-cv-11296-PDB-RSW Doc # 16 Filed 05/23/13 Pg 29 of 33 Pg ID 259
impossible – refute each and every conceivable alternative regulation scheme.” Id. at 1289. Instead, the government need only “refute the alternative schemes offered by the challenger.” Id.
Instead of explaining how MMC and similarly situated secular companies could be exempted from the regulations without significant damage to the government’s compelling interests, plaintiffs conjure up several new statutory and regulatory schemes they claim would be less restrictive. Rather than suggesting modifications to the current employer-based system that Congress enacted, see generally H.R. Rep. No. 111-443, pt. II, at 984-86 (2010), plaintiffs would have the system turned upside-down to accommodate the individual plaintiffs’ beliefs at enormous administrative and financial cost to the government. But, just because plaintiffs can devise an entirely new legislative and administrative scheme does not make that scheme a feasible less restrictive means. See Wilgus, 638 F.3d at 1289; Adams v. Comm’r of Internal Revenue, 170 F.3d 173, 180 n.8 (3d Cir. 1999) (“A judge would be unimaginative indeed if he could not come up with something a little less ‘drastic’ or a little less ‘restrictive’ in almost any situation, and thereby enable himself to vote to strike legislation down.’” (quotations omitted)).
In effect, plaintiffs want the government “to subsidize private religious practices,” Catholic Charities of Sacramento, 85 P.3d at 94, by expending significant resources to adopt an entirely new legislative or administrative scheme. But a proposed alternative scheme is not an adequate alternative—and thus not a viable less restrictive means to achieve the compelling interest—if it is not feasible or plausible. See, e.g., New Life Baptist Church Acad. v. Town of E. Longmeadow, 885 F.2d 940, 947 (1st Cir. 1989) (Breyer, J.); Graham, 822 F.2d at 852. In determining whether a proposed alternative scheme is feasible, courts often consider the additional administrative and fiscal costs of the scheme. See, e.g., United States v. Lafley, 656 F.3d 936, 942 (9th Cir. 2011); New Life Baptist, 885 F.2d at 947. Plaintiffs’ alternatives would impose considerable new costs and other burdens on the government and would otherwise be impractical. See Lafley, 656 F.3d at 942; New Life Baptist, 885 F.2d at 947.18
18 Furthermore, the ACA requires that recommended preventive services be covered without cost-sharing through the existing employer-based system. See H.R. Rep. No. 111-443, pt. II, at 984-86. Thus, even if defendants
(continued on next page…)
18

2:13-cv-11296-PDB-RSW Doc # 16 Filed 05/23/13 Pg 30 of 33 Pg ID 260
Nor would the proposed alternatives be equally effective in advancing the government’s compelling interests. As noted above, Congress determined that the best way to achieve the goals of the ACA, including expanding preventive services coverage, was to utilize the existing employer-based system. The anticipated benefits of the challenged regulations are attributable in part to the fact that recommended contraceptive services will be available through the existing employer-based system of health coverage, through which women will face minimal obstacles to receiving coverage of their care. Plaintiffs’ alternatives, on the other hand, would require establishing entirely new government programs and infrastructures, and would almost certainly require women to take steps to learn of and sign up for the new benefit, thereby ensuring that fewer women would take advantage of it. Nor do plaintiffs offer any suggestion as to how their proposals could be integrated with the employer-based system or effectuated in practice. Because plaintiffs’ proposals are less likely to achieve the compelling interests furthered by the regulations, they are not reasonable less restrictive means.
B. Plaintiffs’ Free Exercise Claim Is Without Merit Plaintiffs’ Free Exercise claim fails at the outset because, as explained above, a for-profit, secular employer like MMC does not engage in any exercise of religion protected by the First Amendment. But even if it did, the regulations do not violate the Free Exercise Clause because— as numerous courts have held—the regulations are neutral laws of general applicability.19 A neutral and generally applicable law does not violate the Free Exercise Clause even if it prescribes conduct that an individual’s religion proscribes or has the incidental effect of burdening a particular religious practice. Emp’t Dvi., Dep’t of Human Res. Of Or. v. Smith, 494 U.S. 872, 879 (1990); see also Lukumi, 508 U.S. at 520. The challenged regulations are neutral
wanted to adopt one of plaintiffs’ non-employer-based alternatives, they would be constrained by the statute from doing so.
19 See Eden Foods, Order at 10-12; Conestoga, 2013 WL 1277419, at *2; Briscoe, 2013 WL 755413, at *67; Conestoga, 2013 WL 140110, at *8-9; Grote, 2012 WL 6725905, at *7-8; Autocam, 2012 WL 6845677, at *5; Korte, 2012 WL 6553996, at *7-8; Hobby Lobby, 870 F. Supp. 2d at 1289-90; O’Brien, 2012 WL 4481208, at *7-9; see also Catholic Charities of Diocese of Albany v. Serio, 859 N.E.2d 459, 468-69 (N.Y. 2006); Catholic Charities of Sacramento, 85 P.3d at 81-87. But see Sharpe Holdings, 2012 WL 6738489, at *5.
19

2:13-cv-11296-PDB-RSW Doc # 16 Filed 05/23/13 Pg 31 of 33 Pg ID 261
and generally applicable because they “do[] not target a particular religion or religious practice or have as [their] objective the interference with a particular religion or religious practice.” Autocam, 2012 WL 6845677 at *5. Rather, the regulations “appl[y] to all non-exempt, nongrandfathered plans,” and, to the extent the regulations burden on plaintiffs’ religious exercise, they do so only “incidentally.” Id.
Plaintiffs maintain that the regulations are not generally applicable because they contain certain categorical exceptions. But the existence of categorical exemptions “does not mean that the law does not apply generally.” Autocam, 2012 WL 6845677 at *5; see also Axson-Flynn v. Johnson, 356 F.3d 1277, 1298 (10th Cir. 2004). And indeed, the regulations and the exemptions are categorical and are neutral with respect to religion. To warrant strict scrutiny, a system of exemptions must be so individualized so as to enable the government to engage in subjective, case-by-case inquiries, and the government must utilize that system to grant exemptions only for secular reasons and not for religious reasons. Smith, 494 U.S. at 884. Plaintiffs point to no such system with respect to the challenged regulations, and there is none. Rather, the regulations “appl[y] to all non-grandfathered, non-exempt plans, regardless of employers’ religious persuasions, and this is enough to create a neutral law of general application.” Autocam, 2012 WL 6845677 at *5.20 II. AN INJUNCTION WOULD INJURE THE GOVERNMENT AND THE PUBLIC
Enjoining the regulations as to for-prof it, secular com panies would underm ine the government’s ability to achieve Congress’s goals of improving the health of women and children and equalizing the coverage of preventive services for women and men. It would also be contrary to the pub lic interest to deny MM C’s employees (and the ir families)—who may not shar e the Mersinos’ religious beliefs—the benefits of th e preventive services coverage regulations. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982).
20 Even if the regulations were not neutral and generally applicable, they would not violate the Free Exercise Clause because they satisfy strict scrutiny. See supra at 12-19.
20

2:13-cv-11296-PDB-RSW Doc # 16 Filed 05/23/13 Pg 32 of 33 Pg ID 262

For the foregoing reasons, defendants respectfully ask that the Court deny plaintiffs’ motion for a temporary restraining order and preliminary injunction.
Respectfully submitted this 23rd day of May, 2013,

Acting IAN Deputy
SHEILA Deputy
U.S. Civil 20 Washington, Tel: Em

STUART F. DELERY Assistant Attorney General
HEATH GERSHENGORN Assistant Attorney General
BARBARA L. MCQUADE United States Attorney
JENNIFER RICKETTS Director
M. LIEBER Director
/s/ Bradley P. Humphreys BRADLEY P. HUMPHREYS Trial Attorney
Department of Justice Division, Federal Programs Branch Massachusetts Avenue N.W.
D.C. 20001 (202) 514-3367; Fax: (202) 616-8470 ail: bradley.p.humphreys@usdoj.gov VA Bar. No. 83212
Attorneys for Defendants

21

2:13-cv-11296-PDB-RSW Doc # 16 Filed 05/23/13 Pg 33 of 33 Pg ID 263

CERTIFICATE OF SERVICE I certify that, on May 23, 2013, I electronically filed the foregoing paper with the Clerk of Court using the ECF system, which will send notification of such filing to the following:

Erin Mersino, Esq. (P21410) Thomas More Law Center 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, MI 48106 emersion@thomasmore.org (734) 827-2001
U.S. Civil 20 Washington, Tel: Em

/s/ Bradley P. Humphreys BRADLEY P. HUMPHREYS Trial Attorney
Department of Justice Division, Federal Programs Branch Massachusetts Avenue N.W.
D.C. 20001 (202) 514-3367; Fax: (202) 616-8470 ail: bradley.p.humphreys@usdoj.gov VA Bar. No. 83212

 
 2:13-cv-11296-PDB-RSW Doc # 19 Filed 05/24/13 Pg 1 of 10 Pg ID 399

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

MERSINO MANAGEMENT COMPANY; )

KAREN A. MERSINO, Owner and

)

Shareholder of Mersino Southwest, LLC and )

Mersino Enterprises, Inc.,

)

and RODNEY A. MERSINO, Owner and )

Shareholder of Mersino Management

)

Company, Global Pump Company, LLC and )

Mersino Dewatering, Inc.,

) Case No. 13-cv-11296-PDB-RSW

Plaintiffs, v.

) ) PLAINTIFFS’ REPLY TO ) DEFENDANTS’ OPPOSITION TO

KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; SETH D. HARRIS, Acting Secretary of the United States Department of Labor; UNITED STATES DEPARTMENT OF LABOR; JACK LEW, Secretary of the United States Department of the Treasury; and UNITED STATES DEPARTMENT OF THE TREASURY,

) ) ) ) ) ) ) ) ) ) ) )

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
Judge Paul Borman
Magistrate Judge R. Steven Whalen

Defendants.

)

THOMAS MORE LAW CENTER Richard Thompson, Esq. (P21410) Erin Mersino, Esq. (P70886) 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, MI 48106 emersino@thomasmore.org Tel: (734) 827-2001 Attorneys for Plaintiffs

STUART F. DELERY Acting Assistant Attorney General
BARBARA L. McQUADE United States Attorney, E.D. of Michigan
SHEILA M. LIEBER Deputy Branch Director
BRADLEY HUMPHRIES Trial Attorney (VA Bar No. 83212) Civil Division, Federal Programs Branch United States Department of Justice 20 Massachusetts Ave. NW Washington, DC 20001 Tel: (202) 514-9242, Fax: (202) 616-8470 bradley.p.humphreys@usdoj.gov Attorneys for Defendants

2:13-cv-11296-PDB-RSW Doc # 19 Filed 05/24/13 Pg 2 of 10 Pg ID 400

TABLE OF CONTENTS

Page

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

CONTROLLING AUTHORITIES................................................................................................. ii

REPLY .............................................................................................................................................1

I. THE MANDATE SUBSTANTIALLY BURDENS PLAINTIFFS’ RELIGIOUS BELIEFS.....1

II. PLAINTIFFS’ RELIGIOUS EXERCISE IS NOT “TOO ATTENUATED” TO BE SUBSTANTIAL ..............................................................................................................................2

III. PLAINTIFFS SEEK NARROW EXEMPTION FOR PROTECTION OF FIRST AMENDMENT FREEDOMS .........................................................................................................5

IV. INJUNCTIVE RELIEF IS NOT BARRED ..............................................................................5

CONCLUSION ................................................................................................................................5

CERTIFICATE OF SERVICE ........................................................................................................6

i

2:13-cv-11296-PDB-RSW Doc # 19 Filed 05/24/13 Pg 3 of 10 Pg ID 401
CONTROLLING AUTHORITIES Elrod v. Burns, 427 U.S. 347 (1976) Sherbert v. Verner, 374 U.S. 398 (1963) Wisconsin v. Yoder, 406 U.S. 205 (1972) And the Nineteen Cases in which Courts have granted the same injunctive relief requested by these Plaintiffs: Monaghan v. Sebelius, No. 12-15488, slip op. (E.D. Mich. December 30, 2012) Monaghan v. Sebelius, No. 12-15488, slip op. (E.D. Mich. March 14, 2013) Legatus v. Sebelius, No. 12-12061, slip op. (E.D. Mich. October 31, 2012) O’Brien v. U.S. Dep’t of Health & Human Servs., No. 12-3357, order (8th Cir. Nov. 28, 2012) Korte v. Sebelius, No. 12-3841, slip op. (7th Cir. Dec. 28, 2012) Grote Indus. LLC v. Sebelius, No. 13-1077, slip op. (7th Cir. Jan. 30, 2013) Annex Med. Inc. v. Sebelius, No. 13-1119, slip op. (8th Cir. Feb. 1, 2013) Am. Pulverizer Co. v. Dep’t of Health & Human Servs., No. 12-3459, slip op. (W.D. Mo. Dec. 20, 2012) Newland v. Sebelius, No. 12-1123, slip op. (D. Colo. July 27, 2012) Tyndale House Publishers, Inc. v. Sebelius, No. 12-1635, slip op. (D.D.C. Nov. 16, 2012) Triune Health Group, Inc. v. U.S. Dep’t of Health and Human Servs., No. 1:12-cv-06756 (N.D. Ill. Jan. 3, 2013) Sharpe Holdings, Inc. v. U.S. Dep’t of Health and Human Servs., 12-92, slip op. (E.D. Mo. Dec. 31, 2012) Sioux Chief Mfg. Co., Inc. v. Sebelius, No. 13-36, order (W.D. Mo. Feb. 28, 2013) Seneca Hardwood Lumber v. Sebelius, No. 12-207, slip op. (W.D. Pa. Apr. 19, 2013) Lindsay, Rappaport & Postel LLC v. Sebelius, No. 13-1210, order (Mar. 20, 2013) Gilardi v. Dep’t of Health & Human Servs., No. 13-5069 , order (D.C. Cir. Mar. 29, 2013)
ii

2:13-cv-11296-PDB-RSW Doc # 19 Filed 05/24/13 Pg 4 of 10 Pg ID 402 Bick Holding, Inc. v. Sebelius, No. 13-462, order (E.D. Mo. Apr. 1, 2013) Am. Manufacturing Co. v. Sebelius, No. 13-295, slip op.(D. Minn. Apr. 2, 2013) Hart Electric LLC v. Sebelius, No. 13-2253, order (N.D. Ill. Apr. 18, 2013) Tonn and Blank Construction v. Sebelius, No. 12-325, order (N.D. Ill. Apr. 1, 2013)
iii

2:13-cv-11296-PDB-RSW Doc # 19 Filed 05/24/13 Pg 5 of 10 Pg ID 403
REPLY Plaintiffs rightfully seek the protections of an injunction because absent this relief, Plaintiffs will “suffer irreparable harm before a decision on the merits can be rendered.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). THE MANDATE SUBSTANTIALLY BURDENS PLAINTIFFS’ RELIGIOUS BELIEFS: A substantial burden is “substantial pressure on an adherent to modify his behavior or violate his beliefs.” Thomas v. Review Bd., 450 U.S. 707, 718 (1981). Plaintiffs face a direct and inescapable burden: provide coverage believed to be immoral or suffer severe penalties. This is an archetypal burden which “make[s] unlawful the religious practice itself.” Braunfeld v. Brown, 366 U.S. 599, 606 (1961). A substantial burden occurs when one is required to choose between (1) doing something his faith forbids (or not doing something his faith requires), and (2) incurring financial penalties, legal enforcement by the government, or even the loss of a government benefit. Thomas, 450 U.S. at 718; Sherbert v. Verner, 374 U.S. 398 (1963); Wisconsin v. Yoder, 406 U.S. 205 (1972).1 The mandate explicitly makes unlawful Plaintiffs’ religious practice of refraining from covering contraceptives, as Plaintiffs have done since Mersino Management’s inception in compliance with Plaintiffs’ strict adherence to their Catholic faith. The mandate bears direct responsibility for placing “substantial pressure” on Plaintiffs to provide a health plan that violates their religious beliefs, rendering their religious exercise refraining from immoral acts and operating Mersino Management in a manner consistent with deeply held religious beliefs—effectively impracticable.2
1 And the nineteen cases where the mandate has been enjoined. See Pl’s Br. (Doc. #10) at 1, n. 2. Note: Defendants’ argue that twelve district courts have ruled in their favor but fail inform the court that the bulk of those cases have gone to the appellate courts who have expressly disagreed with those district court rulings and issued injunctions pending appeal to protect the precious rights at issue here. O’Brien; Gilardi; Korte; Grote; Annex Med. 2 Defendants expressly acknowledged the burden that the mandate imposes upon religious exercise. Recognizing that providing insurance coverage of contraceptive services conflicts with “the religious beliefs of certain religious employers,” Defendants have granted exemptions to certain employers. 76 Fed. Reg. 46,621, 46,623; 77 Fed. Reg.
1

2:13-cv-11296-PDB-RSW Doc # 19 Filed 05/24/13 Pg 6 of 10 Pg ID 404
PLAINTIFFS’ RELIGIOUS EXERCISE IS NOT “TOO ATTENUATED” TO BE
SUBSTANTIAL: This exact argument has been rejected time and time again in other courts,
With respect, we think this misunderstands the substance of the claim. The religious-liberty violation at issue here inheres in the coerced coverage of contraception, abortifacients, sterilization, and related services, not—or perhaps more precisely, not only—in the later purchase or use of contraception related services.3
The instant action is not based upon objection to employees’ life choice, or to employees’ use of their own money.4 Rather, it stems from Plaintiffs’ objection, based on their faith, to
providing insurance coverage for drugs and information, because they believe providing such
coverage is immoral. This religious faith does not merely object to Plaintiffs’ own use of such
items, but also prohibits them from providing health insurance coverage for such items. Id.
Neither a corporate veil nor other legal technicalities give Plaintiffs moral absolution to
providing coverage for items that they have religious beliefs against covering. This realization
underscores Defendants’ fundamental error: conceiving of the substantial burden analysis as an
exercise in moral theology. The analysis does not measure moral beliefs, or weigh how morally
“attenuated” one’s theological objection is in relation to other immoral activity.
The Supreme Court explicitly rejected this moral theologizing. In Thomas v. Review
Board, a plaintiff who objected to war was denied unemployment benefits after refusing to work
8,725. Defendants have provided a temporary enforcement safe harbor (effective equivalent of a preliminary injunction) for any non-profit employers that object on religious grounds to the mandate. (http://cciio.cms.gov/resources/files/Files2/02102012/20120210-Preventive-Services-Bulletin.pdf (last visited May 22, 2013). The temporary safe harbor will likely become permanent. 77 Fed. Reg. 16,501, 16,503. Defendants discussed a safe harbor for “for-profit religious employers with [religious] objections.” 77 Fed. Reg. 16,501, 16504. 3 Korte v. Sebelius, No.12-3841, slip op. at *5 (7th Cir. Dec. 28, 2012); see Pl’s Br. (Doc. #10) at 1, n. 2. 4 Unlike in Autocam, where the court made issue that plaintiffs offered a flex-spending account, here Plaintiffs do not offer such account. See Monaghan, slip op. at *12; Autocam v. Sebelius, et al., No. 12-1096, slip op. at *3 (W.D. Mich. Dec. 24, 2012) (which is not controlling on this court). Also in Autocam, the W.D. of Michigan focused on the fact that those plaintiffs did “not claim[] that any such payment obligation [the penalties and fines attached to noncompliance with the mandate] would be ruinous.” Here, Plaintiffs claim such payment obligations would be ruinous and crippling. Furthermore, Autocam focused on the mandate’s monetary sanctions and failed to focus on Plaintiffs’ challenge: the constitutional violation which tramples upon the free exercise of religion.
2

2:13-cv-11296-PDB-RSW Doc # 19 Filed 05/24/13 Pg 7 of 10 Pg ID 405
in an armament factory. 450 U.S. at 714, 716. The government argued that working in a tank factory was not a cognizable burden on the plaintiff’s beliefs because it was “sufficiently insulated” from his objection to war. Id. at 715. The Court rejected not only this conclusion, but the underlying premise that it is the court’s business to draw moral lines. “Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one. Courts should not undertake to dissect religious beliefs.” Id. Likewise here, the notion that direct penalties and lawsuits are somehow not “substantial” burdens on an explicit religious belief (objecting to certain insurance coverage), because the court deems that activity morally insulated or attenuated from use of contraceptives, is plain legal error.
Under Defendants’ analysis of substantial burden, churches themselves as well as Catholic hospitals, religious non-profit groups and others, would not even be able to bring RFRA claims against the mandate. Its rationale would allow the government to force even churches to include things such as surgical abortions in their health insurance coverage on the theory that insurance is “too attenuated” to merit moral offense. The mandate requires that Plaintiffs pay for and provide a health plan with contraception and abortifacients to employees. Plaintiffs’ religious beliefs forbid such coverage—not just Plaintiffs’ own use of the items but also covering these items. The burden is directly imposed on Plaintiffs by the mandate, and not alleviated by an employee’s decision whether to make use of these drugs or services. The burden is not alleviated by the corporate form. The mandate is being directly imposed on Mersino Management and requiring action by Karen and Rodney Mersino. Forcing Plaintiffs to pay for and provide a health plan that includes contraception is tantamount to forcing Plaintiffs to
3

2:13-cv-11296-PDB-RSW Doc # 19 Filed 05/24/13 Pg 8 of 10 Pg ID 406
provide employees with vouchers for contraception paid for entirely by Plaintiffs themselves. This is exactly the type of direct burden RFRA was enacted to prevent.5
Courts routinely reject Defendants’ assertion to find an insufficient burden on Plaintiffs’
religious beliefs arising out of the distinction between Karen and Rodney Mersino as an individual and their company Mersino Management.6 The mandate imposes the same
substantial burden on Mersino Management as it does on its owners. The mandate requires
Karen and Rodney Mersino to manage their company in a way that violates their religious faith.
All penalties assessed against Mersino Management have a direct financial and practical impact on all Plaintiffs.7 The mandate on Mersino Management applies “substantial pressure” on
Plaintiffs to violate their beliefs. As in the many injunctions issued against the mandate, multiple
courts have recognized that an owner of a company can bring religious exercise claims, because
he/she is impacted by government burden on his/her business without a moral distinction between themselves and their companies.8 See, e.g., Stormans, Inc. v. Selecky, 586 F.3d 1109, 111-20 & n.9 (9th Cir. 2009); EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610, 620 n. 15 (9th Cir. 1988); Tyndale, slip op. at *5-9.9,10
5 As noted in Tyndale, “Because it is the coverage, not just the use, of contraceptives at issue to which plaintiffs object, it is irrelevant that the use of contraceptives depends on the independent decisions of third parties. And even if this burden could be characterized as ‘indirect,’ the Supreme Court has indicated that indirectness is not a barrier to finding a substantial burden.” Tyndale, slip op. at *13 (citing Thomas, 450 U.S. at 718) (emphasis added). 6 See Pl.’s Br. (Doc. #10) at 1, n. 1. 7 Mersino Management is an “s” corporation with pass through taxation, passed through to Karen and Rod Mersino. 8 Townley involved a closely-held mining equipment company. Almost identical to the Plaintiffs here, the company was 94% owned by a husband and wife who were both members of the Catholic Church. Townley, 859 F.2d at 611. The couple sought to run the company in accordance with their faith, as they were "unable to separate God from any portion of their daily lives, including their activities at the Townley company." Id. at 612. The court found that the corporation could assert the free exercise rights of its owners. Id. at 619-20, n.15. 9 The fact that Mersino Management is a distinct legal entity from Karen and Rodney Mersino is not relevant. The violation at issue here is moral and religious, not strictly legal. Karen and Rodney Mersino are morally the same actor vis-à-vis the mandate, even if for some purposes the company is distinct. A company does not think, act, and establish business values and practices, except through its human agency that defines the purpose of the company, hires employees, and complies with laws. The mandate forces Karen and Rodney Mersino to violate their beliefs to run their company pursuant to their Catholic faith. The mandate prohibits Plaintiffs from doing so. 10 Defendants dismissed appeal, allowing injunctive relief. Tyndale, No. 13-5018, order (D.C. Cir., May 3, 2013).
4

2:13-cv-11296-PDB-RSW Doc # 19 Filed 05/24/13 Pg 9 of 10 Pg ID 407
PLAINTIFFS SEEK A NARROW EXEMPTION FOR THE PROTECTION OF FIRST AMENDMENT FREEDOMS: Plaintiffs do no seek to impose their beliefs on others. Plaintiffs’ faith forbids them from providing contraception or abortifacients for others. Plaintiffs have never offered insurance for contraceptive coverage. Plaintiffs’ employees are well aware of this and have chosen to continue working for Plaintiffs and not to seek other employment with different benefits. Plaintiffs seek to maintain the status quo during litigation.11 INJUNCTIVE RELIEF IS NOT BARRED: Plaintiffs filed for injunctive relief approximately one month prior to the mandate’s effective date to Plaintiff’s plan. Defendants provide no legal support for the contention that a preliminary injunction should be denied on this basis.12 Defendants previously argued that motioning for an injunction from the mandate too soon meant harm was not imminent. Newland v. Sebelius, No. 12-1123, slip op. at 8 (D. Colo. July 27, 2012)(“Defendants argue this harm, three months in the future, is not sufficiently imminent to justify injunctive relief.”). In Monaghan, plaintiffs moved for a temporary restraining order nine days before their plan date, the Defendants raised this same argument and the court gave it the weight it deserved—none. Plaintiffs face irreparable harm. Elrod v. Burns, 427 U.S. 347, 373 (1976) (holding the loss of constitutional rights “unquestionably constitutes irreparable injury”).
CONCLUSION For these reasons and the reasons offered in (Doc. #10), Plaintiffs respectfully request that this Court grant their motion for preliminary injunctive relief.
11 Defendants exclude millions from the mandate. Pl’s Br. (Doc. #10) at 12-14. Defendants have even consented to the same temporary relief Plaintiffs’ seek. Pl’s Br. (Doc. #10) at 1, n. 1; Tyndale (appeal dismissed by Defendants). 12 Defendants cited cases that are not analogous. Fund for Animals v. Frizzell, 530 F.2d 982 (D.C. Cir. 1975) (challenge to regulations for sport hunting of migratory birds, but birds already migrated and plaintiffs “made no attempt to show irreparable harm”); Huron Mountain Club v. U.S. Army Corps of Eng’rs, No. 12-cv-197 (W.D. Mich. July 25, 2012)(court had no power to enjoin mining operations when federal regulations asserted by plaintiffs were inapplicable); Badillo v. Playboy Entm’t Grp., No. 04-cv-591 (M.D. Fla. Apr. 16, 2004)(sought to enjoin video months after its airing and with no proof defendants were still airing the video or that injunction would stop harm).
5

2:13-cv-11296-PDB-RSW Doc # 19 Filed 05/24/13 Pg 10 of 10 Pg ID 408 Respectfully submitted this 24th day of May, 2013.
Attorney for Plaintiffs: THOMAS MORE LAW CENTER s/ Erin Mersino_________________ Erin Mersino, Esq. (P70886)
CERTIFICATE OF SERVICE I hereby certify that on May 24, 2013, a copy of the foregoing was filed electronically. Notice of this filing will be sent to all parties for whom counsel has entered an appearance by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s system. I certify that a copy of the foregoing has been served by ordinary U.S. Mail upon all parties for whom counsel has not yet entered an appearance electronically: None
THOMAS MORE LAW CENTER s/ Erin Mersino_________________ Erin Mersino, Esq. (P70886)
6

 
 2:13-cv-11296-PDB-RSW Doc # 29 Filed 07/11/13 Pg 1 of 33 Pg ID 718

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MERSINO MANAGEMENT COMPANY; KAREN A. MERSINO, Owner and Shareholder of Mersino Southwest, LLC and Mersino Enterprises, Inc., and RODNEY A. MERSINO, Owner and Shareholder of Mersino Management Company, Global Pump Company, LLC and Mersino Dewatering, Inc.,

Case No. 13-cv-11296
Paul D. Borman United States District Judge

Plaintiffs,

v.

KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; SETH D. HARRIS, Acting Secretary of the United States Department of Labor; UNITED STATES DEPARTMENT OF LABOR; JACK LEW, Secretary of the United States Department of the Treasury; and UNITED STATES DEPARTMENT OF THE TREASURY,

Defendants. ______________________________________/

OPINION AND ORDER DENYING PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

Before the Court is Plaintiffs Mersino Management Company, Karen Mersino and Rodney

Mersino’s (“Mersino”) Motion for Temporary Restraining Order and Preliminary Injunction. (ECF

No. 10.) Defendants Kathleen Sebelius, United States Department of Health and Human Services

(“HHS”), Seth D. Harris, United Sat tes Department of Labor (“DOL”), Jack Lew, and United States

Department of the Treasury (“Treasury”) filed a response (ECF No. 16) and Plaintiffs filed a reply

1

2:13-cv-11296-PDB-RSW Doc # 29 Filed 07/11/13 Pg 2 of 33 Pg ID 719
(ECF No. 19). On May 23, 2013, the Am erican Civil Liberties Union and the Am erican Civil
Liberties Union Fund of Michiganfiled a Motion for Leave to FileAmicus Curiae Brief, which the
Court GRANTS. (ECF No. 17.) The Court also GRANTS Plaintiffs’ Motion for Leave to File
Response Brief in Opposition to the ACLU’s Am icus Brief. (ECF No. 24.) The Court held a
hearing on May 29, 2013. Having heard oral argument, and having considered all of the briefs, for the reasons that follow, the Court DENIES the motion for preliminary injunctive relief.1
I. BACKGROUND Plaintiffs, a for-profit, secular corporation and its two shareholders, filed this action on
March 22, 2013, challenging regulations issued under the Patient Protection and Affordable Care
Act (Pub. L. 111-148, March 23, 2010, 124 Stat. 119) and the Health Care and Education
Reconciliation Act (Pub. L. 111-152, March 30, 2010, 124Stat. 1029) (collectively the “Affordable
Care Act” or the “ACA”). (Com pl. ¶ 2.) The regulations at issue here, adopted pursuant to the
ACA, require that a group health plan and a hea lth insurance issuer, w ith certain exceptions f or
grandfathered plans not relevant here, offering group or individual health insurance coverage, must
provide coverage to women, without requiring cost-sharing, that includes “preventive care and
1 The Court notes as an initial matter Plaintiffs’ lack of urgency in filing this action over a year and a half after the contraceptive coverage regulations were issued and further waiting more than two months after filing the Com plaint in this action to seek injunctive relief . Delays in seeking injunctive relief indicate to the Court that harm is not im minent and that speedy relief is not warranted. See, e.g., Huron Mountain Club v. U.S. Army Corps of Eng’r,sNo. 12-cv-197, 2012 WL 3060146, at *4 (W.D. Mich. July 25, 2012) (“[A] long delay in seeking relief indicates that speedy action is not required.”); Fund for Animals v. Frizzell, 530 F.2d 982, 987 (D.C. Cir. 1975) (denying preliminary injunction where plaintiff waited forty-four days after regulations were issued to seek injunctive relief). The f ailure to m ove forward with urgency in t his action is all the m ore unexplainable given that Plaintiffs’ counsel filed a nearly identical claim in this court over a year ago on behalf of other similarly situated plaintiffs. See Legatus v. Sebelius, No. 12-cv-12061 (E.D. Mich. May 7, 2012).
2

2:13-cv-11296-PDB-RSW Doc # 29 Filed 07/11/13 Pg 3 of 33 Pg ID 720

screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and

Services Administration [“HRSA”] . . .” 42 U.S.C. § 300gg-13(a)(4).At the time that the ACA was

adopted, there were no existing HRSA guidelines and t he HHS com missioned the Institute of

Medicine (“IOM”) to provide recommendations for the HRSA guidelines.2 The IOM published a

report that recom mended that plans be required to cover “[a]ll Food and Drug Adm inistration

approved contraceptive methods, sterilization procedures, and patient education and counseling for

all women with reproductive capacity.” Id. FDA a pproved contraceptive methods include oral

contraceptive pills, diaphragms, injections and implants, emergency contraceptive drugs (“Plan B”

and “ella”) and intrauterine devices. 3 On August 1, 2011, HRSA adopted the I

OM

recommendations, see 76 Fed. Reg. 46,621, and on February 15, 2012, HHS, DOL and Treasury

published rules finalizing the HRSA guidelines, see 77 Fed. Reg. 8725 (Feb. 15, 2012) (Referred

to herein as “the contraceptive coverage regulations” or the “contraceptive coverage mandate”.)

The contraceptive coverage regulations contain a religious em ployer exemption, but that

exemption does not cover secular, for-profit com panies whose owners have strong religious

objections to birth control. Contraceptive cove rage by secular, for-profit em ployers must be

provided pursuant to the regulations beginning with plan years that start a fter August 1, 2012. 4

2 See http://www.hrsa.gov/womensguidelines; 76 Fed. Reg. 46,621 (Aug. 3, 2011).

3

See Birth Control Guide, FDA Office of W omen’s Health, available at

http://www.fda.gov/ForConsumers/ByAudience/ForWomen/FreePublications/ucm313215.htm

4 The Executive Branch subsequently provided certain religiously-affiliated hospitals and nonprofits a moratorium until August 1, 2013 to begin to comply with the rule. On June 28, 2013, HHS, Labor and Treasury issued final regulations that accommodate these organizations but require the entities that insure them to pick up the tab for contraceptive coverage, concluding that doing so is at the very least “cost-neutral” for the issuers. 77 Fed. Reg. 16501, 16502 (March 21, 2012). See http://www.ofr.gov/OFRUpload/OFRData/2013-15866_PI.pdf

3

2:13-cv-11296-PDB-RSW Doc # 29 Filed 07/11/13 Pg 4 of 33 Pg ID 721
Plaintiffs plan year began on June 1, 2013. The contraceptive coverage regulations, and in particular those that mandate coverage for
abortifacients, conflict with the beliefs held by some religious groups, in particular Catholics, who believe that life begins at conception and, a belief held by a smaller group, that practicing artificial birth control is intrinsically evil and in conflic t with God’s plan to create hum an life through the union of a man and a woman. Plaintiffs Karen and Rodney Mersino hold these beliefs and allege that the contraceptive coverage mandate forces them to pay for contraceptives for their employees, in violation of these deeply held religious beliefs.
Plaintiff Mersino Management Company (“Mersino Management”) is incorporated under the laws of the State of Michigan and is treated as a subchapter S Corporation for income tax purposes.5 Mersino Management has 29 employees. (Compl. ¶¶ 22, 24.) Mersino Management has 60,000 authorized shares of common stock, divided into two classes: (1) 12,000 shares of Class A voting common stock; and (2) 48,000 shares of Class B nonvoting common stock. (ECF No. 20, Ex. 3, Mersino Management Articles of Incorporation.) Holders of Class A Voting Common Stock hold the exclusive power to elect the Board of Driectors of Mersino Management and to vote on any matter which must be submitted to a vote ofthe shareholders ofa corporation or which is submitted to a vote of the shareholders of the corporati on. Together, Plaintiffs Rodney and Karen Mersino own more than 92% of the Voting Common Stock. (ECF No. 20, Ex. 1, May 23, 2012 Affidavit of
5 The factual allegations are derived fr om (1) Plaintiffs’ Complaint (ECF No. 1); (2) the Declarations and Affidavits filed in support ofPlaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction (ECF No. 10, Exs. 1, 2); (3) the Supplementary Exhibits and from the Supplementary Exhibits in Support of Plaintiffs ’ Motion for Restraining Order and Prelim inary Injunctive Relief filed by Plaintiffs on May 24, 2013 (ECF No. 20, Supplementary Exhibits); (4) the Supplementary Exhibit filed by Plaintiffs on May 30, 2013 (ECF No. 23); and (5) the Exhibit filed by Plaintiffs on June 5, 2013 in Response to the Court’s May 29, 2013 Order (ECF No. 26).
4

2:13-cv-11296-PDB-RSW Doc # 29 Filed 07/11/13 Pg 5 of 33 Pg ID 722
Amy Glenn ¶ 6.) Plaintiffs Karen and Rodney Mersino are responsible for setti ng all policies governing the conduct of Mersino Managem ent. (ECF No. 10, Ex. 1 ¶ 9, Ex. 2, ¶¶ 7, 8.). This includes the implementation and maintenance of Mersino Management’s self-insured, employee benefits health plan. (ECF No. 20, Ex. 2, May 23, 2013 Declaration of Rodney A. Mersino, Jr. ¶ 7.)
Plaintiff Rodney A. Mersino owns 526 sharesof Class A Voting Common Stock in Mersino Management, which represents 52% of the outstanding Class A Voting Common Stock. Plaintiff Karen A. Mersino owns 412 shares of Class A Voting Common Stock in Mersino Management, which represents 41% of the outstanding ClassA Voting Common Stock in Mersino Management. (Glen Affidavit ¶¶ 4-5.) Plaintiffs Rodney andKaren Mersino’s son, Rodney A. Mersino, Jr., owns the remaining 8% of the Class A Voting Common Stock in Mersino Management. Rodney Mersino, Jr. has consented to his parents bringing this action on behalf of Mersino Management. (ECF No. 20, Ex. 2, Rodney A. Mersino, Jr. Decl. ¶ 8.) Of the 48,000 authorized shares of Class B Nonvoting Common Stock, Mersino Management has issued only 14,954 shares to Plaintiffs Rodney and Karen Mersino, Rodney Mersino, Jr., and in nominal amounts to Marcus Mersino (Rodney and Karen’s son), Christopher Mersino (Rodney and Karen’s son) and David Tersigni, (Rodney Mersino’s cousin). (ECF No. 26, Ex. 1, June 5, 2013 Declaration of Rodney A. Mersino ¶¶ 8-14.)
Mersino Management is the management company, and provides health insurance under its self-funded plan, for Mersino Dewatering, Inc. (“Dewate ring”) (110 em ployees), Mersino Enterprises, Inc. (“Enterprises”), Global Pump, LLC (“Global Pump”) (34 employees) and Mersino Southwest, LLC (“Southwest”) (11 employees). (Compl. ¶¶ 24-29.) In their decades of leadership of Mersino Management companies, Karen and Rodney M ersino “have remained unwaveringly
5

2:13-cv-11296-PDB-RSW Doc # 29 Filed 07/11/13 Pg 6 of 33 Pg ID 723
dedicated to their values of family, hard work and a faith in God and each other.” (Compl. ¶ 39.) Plaintiffs Karen and Rodney Mersino have dedicated their lives and resources to Catholicism and furthering Catholic philanthropic causes and are guided in all that they do by their religious faith. (Compl. ¶¶ 41-43.)
Plaintiffs Karen and Rodney Mersino strive to follow in their business practices the tenets of their Catholic, which prevent themfrom participating in, paying for, training others to engage in, or otherwise supporting contraception, sterilization, abortion, and abortifacients. (Compl. ¶¶ 53-54, 77-78.) Plaintiffs believe that human life is sacred from the moment of conception and therefore believe that abortion ends a human life and is a grave sin. (Compl. ¶ 71.) Plaintiffs further believe that human sexuality serves two purposes: to unite hubsand and wife and to generate new life. Thus, they believe that “any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation, wh ether as an e nd or as a m eans,” including contraception and sterilization, is a grave sin. ( Compl. ¶¶ 71-72.) According to their religious beliefs, Plaintiffs cannot provide, fund, or participate in health care insurance which covers artificial contraception, sterilization, abortion, or abortifacients, or related education and counseling, without violating their deeply held religious beliefs. (Compl. ¶ 83.)
Prior to the issuance of the contraceptive coverage regulations, Plaintiffs engineered a selffunded insurance policy with a third party adm inistrator, a non-Mersino entit y, Administration Systems Research Corporation, which specifically excluded contraception, sterilization, abortion, and abortifacients, and exempts Plaintiffs from paying, contributing, or supporting contraception, sterilization, abortion and abortifacients for others. Plaintiffs obtained these exclusions due to their deeply held religious beliefs and have never offered insurance which included coverage for
6

2:13-cv-11296-PDB-RSW Doc # 29 Filed 07/11/13 Pg 7 of 33 Pg ID 724
contraception, sterilization, abortion, and abortifacients. (Compl. ¶¶ 56-58, 81.) Administration Systems Research Corporation uses the following medical insurance carriers for Plaintiffs’ plan: Private Healthcare Systems (PHCS), Health Alliance Plan (HAP), Physicians Care Health Plans. (Compl. ¶¶ 60, 79.) Em ployee Health Insurance Managem ent, a non-Mersino entity, is the Plaintiffs’ plan administrator for prescription drug coverage. (Compl. ¶ 61.) Plaintiffs Karen and Rodney Mersino and their Plaintiff Mersino Management companies ensured that their insurance policy contained these exclusions to reflect their deeply held religious beliefs. (Compl. ¶ 62.)
Plaintiffs allege that under the provisions of the ACA, Plaintiff Mersino Management and its related companies Dewatering, Enterprises, Global Pum p and Southwest constitute a “ single employer” and therefore em ployee more than 50 ful l time employees, bringing them within the definition of employers required to provide insurance coverage under the ACA. (Compl. ¶¶ 103107.) Plaintiffs do not qualify for any non-profit or religious entityexemptions under the ACA and do not qualify as a “grandfathere d” health care plan. (Com pl. ¶¶ 109-116.) Plaintiffs becam e subject to the contraceptive coverage mandate when their plan year began on June 1, 2013. (Compl. ¶¶ 180-181.) Accordingly, Plaintiffs are subject tothe contraceptive coverage regulations now and are directly confronted with complying or paying fines/taxes, when they become due, in excess of $6,716,000 per year. (Compl. ¶¶ 120-123.)
Plaintiffs assert that the contraceptive coverage regulations unconstit utionally coerce Plaintiffs to violate their deeply-held religious beliefs under threat of directly violating their consciences, in addition to the threat of monetary fines and penalties. (Compl. ¶ 87.) Complying with the mandate requires a direct violation of Plaintiffs’ religious beliefs because it would require Plaintiffs to pay for and a ssist others in paying for or obtaining not only contraception but also
7

2:13-cv-11296-PDB-RSW Doc # 29 Filed 07/11/13 Pg 8 of 33 Pg ID 725
abortion because certain drugs and devices, such as the “morning after pill,” “Plan B,” and “ella,” come within the definition of approved contraceptive devices under the ACA despite their known abortifacient mechanisms of action. (Compl. ¶ 92, 135.)
On March 22, 2013, Plaintifs filed their Complaint against Defendants Sebelius, HHS, DOL, and Treasury asserting twelve separate claim s. Plaintiffs assert in their m otion for preliminary injunctive relief that the contraceptive coverage mandate violates their rights under (1) the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (“RFRA”) (Count VIII) and (2) the First Amendment to the United States Constitution, Free Exercise Clause (Counts I, II, III). Plaintiffs believe that the mandate forces them to violate a foremost tenet of their Catholic faith which holds that “any action which either before, at the m oment of, or after sexual intercourse, is specifically intended to prevent procreation, whether as an end or as a me ans – including contraception, sterilization, abortion, and abortifacients – is a grave sin.” (Compl. ¶ 3.) II. PRELIMINARY INJUNCTION STANDARDS
A preliminary injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Resources Defense Counsel, Inc., 555 U.S. 7, 22 (2008) (citation om itted). Plaintiff bears the burden of dem onstrating entitlement to preliminary injunctive relief and the burden is substantial. Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir. 2000). Such relief will only be granted where “the movant carries his or her burden of proving that the circum stances clearly demand it.” Overstreet v. Lexi ngton-Fayette Urban County Gov’t, 305 F.3d 566, 573 (6th Cir. 2002). When considering a motion for injunctive relief, the Court must balance the following factors: (1) whether the movant has a strong likelihood of success on the merits, (2) whether the movant would suffer irreparable injury absent preliminary
8

2:13-cv-11296-PDB-RSW Doc # 29 Filed 07/11/13 Pg 9 of 33 Pg ID 726
injunctive relief, (3) whether granting the preliminary injunctive reliefwould cause substantial harm to others, and (4) whether the public interest woudl be served by granting the preliminary injunctive relief. “These factors are not prerequisites, but arefactors that are to be balanced against each other.” Id. “The proof required for the plaintiff to obtain a preliminary injunction is much more stringent than the proof required to survive a summary judgment motion.” Leary, 228 F.3d at 739. “Although no one factor is controlling, a finding that there is simply no likelihood of success on the merits is usually fatal.” Gonzales v. Nat’l Bd. of Medical Examiners, 225 F.3d 620, 625 (6th Cir. 2000). III. ANALYSIS
The issue before the Court, whether to grant preliminary injunctive relief to a closely-held for-profit secular corporation and its owners w ho challenge application of the contraceptive coverage regulations to themunder RFRA and/or the Free Exercise Clause, has divided courts across the country.6 Jurists have weighed in on all sides of the debate and there is little doubt that the Supreme Court will ultimately decide the issue. Until that time, this Court is bound to follow the lead of this Cir cuit, if one can be discerned, a nd from there to determ ine whether Plaintiffs are clearly entitled to the extraordinary relief that they seek in this case.
In Autocam Corp. v. Sebelius, No. 12-2673, 2012 U.S. App. LEXIS 26736 (6th Cir. Dec. 28, 2012), the Sixth Circuit denied a motion for an injunction pending appeal of United States District
6 It merits mentioning that other circuits, principally as relevant here the Seventh Circuit, employ a different standard than the Sixth Circuit when analyzing claims for injunctive relief. The Seventh Circuit has adopted a “sliding scale” standard that only requires “some likelihood of success on the merits,” and a full scale balancing of the ot her factors. See, e.g., Korte v. Sebelius, No. 12-3841, 2012 WL 6757353, at *2 (7th Cir. Dec. 28, 2012). The Sixth Circuit, unlike the Seventh Circuit, requires a showing of a clear showing of a like lihood of success on the merits and considers that factor to be nearly dispositive. “Although no one afctor is controlling, a finding that there is simply no likelihood of success on the merits is usually fatal.” Gonzales v. Nat’l Bd. of Medical Examiner,s 225 F.3d 620, 625 (6th Cir. 2000).
9

2:13-cv-11296-PDB-RSW Doc # 29 Filed 07/11/13 Pg 10 of 33 Pg ID 727
Judge Robert Jonker’s denial of a preliminary injunction in Autocam Corp. v. Sebelius, No. 12-cv1096, 2012 WL 6845677 (W.D. Mich. Dec. 24, 2012). Plaintiffs in Autocam, like the Mersinos, challenged the application of the contraceptive mandate to their closley-held business under RFRA and the Free Exercise Clause. In denying prelim inary injunctive relief, Judge Jonker found that plaintiffs were unlikely to prevail on their First Am endment Free Exercise claim because the contraceptive coverage regulations are a neutral law of general applicability and that they were unlikely to prevail on their RFRA claimbecause (1) the burden on the corporate plaintiffs, who had the option to restructure from a self-insured pl an to an insured plan, was too indire ct to be “substantial,” and (2) the individual plaintiffs, who were not compelled to do anything under the contraceptive coverage mandate, accepted limits on their own conduct by choosing the corporate form and any burden on themindividually was too attenuated to be substantial. 2012 WL 6845677, at *7.
In deciding whether to grant the Autocamplaintiffs an injunction pending appeal, the Sixth Circuit observed the wide divergence in opinion among the district courts on the constitutionality of the application of the contraceptive coverage regulations to closely-held for profit entities and noted that no circuit court had then consideredthe claims. The Sixth Circuit found it worth noting, however, that the Supreme Court, in an opinion issued by Justice Sotomayor sitting individually as Circuit Justice for the Tenth Circui t, denied an injunction pending appeal of the Tenth Circuit’s denial of an injunction in Hobby Lobby Stores, Inc. v. Sebelius, No. 12-6294, 2012 WL 6930302 (10th Cir. Dec. 20, 2012), pending a ppeal of th e district court decision denying prelim inary injunctive relief in Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278 (W.D. Oklahoma 2012). Hobby Lobby Stores, Inc. v. Sebelius, 133 S.Ct. 641 (2012).
10

2:13-cv-11296-PDB-RSW Doc # 29 Filed 07/11/13 Pg 11 of 33 Pg ID 728
In Hobby Lobby, Justice Sotomayor, noting the more demanding standard for obtaining an injunction under the All W rits Act, denied injunctive relief finding that “what ever the ultimate merits of the applicants’ claims, their entitlement to relief is not ‘indisputably clear.’” 133 S.Ct. at 643 (quoting Lux v. Rodrigues, 561 U.S. __, __, 131 S.Ct. 5, 6, 177 L.Ed.2d 1045 (2010)). Making reference to the Suprem e Court’s decision in United States v. Lee , 455 U.S. 252 (1982), Justice Sotomayor observed:
This Court has not previously addressed sim ilar RFRA or free exer cise claims brought by closely held for-profit corporations and their controlling shareholders alleging that the m andatory provision of certain employee benefits substantially burdens their exercise of religion. Cf. United States v. Lee, 455 U.S. 252, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982) (rejecting fr ee exercise claim brought by individual Amish employer who argued that paying Social Security taxes for hi s employees interfered with his exercise of religion). 133 S.Ct. at 643. Justice Sotomayor further noted “that lower courts have diverged on whether to grant temporary injunctive relief to similarly situated plaintiffs raising similar claims . . . and no court has issued a final decision granting permanent relief with respect to such claims.” Id.7 The Sixth Circuit denied plaintiffsan injunction pending appeal inAutocam, conceding that the divergence of opinion am ong the district cour t “establishes the possibility of success on t he merits,” but concluding that plaintiffs had “not demonstrated more than a possibility” and denying the injunction “in light of the lower court’s reasoned opinion in this case and the Supreme Court’s recent denial of an injunction pending appeal inHobby Lobby [Stores, Inc. v. Sebelius, 133 S.Ct. 641 (2012)].” 2012 U.S. App. LEXIS 26736, at *2. The Sixth Circuit expressly concluded inAutocam
7 Since then, as discussedinfra, the Tenth Circuit sittingen banc recently reversed the district court, finding a likelihood of success on the m erits and irreparable harm , and re manding for further consideration of the two rem aining preliminary injunction factors. Hobby Lobby Stores, Inc. v. Sebelius, __F.3d__, 2013 WL 3216103 (10th Cir. June 27, 2013).
11

2:13-cv-11296-PDB-RSW Doc # 29 Filed 07/11/13 Pg 12 of 33 Pg ID 729
that “it is not clear that the contraceptive requirement violates the plaintiffs’ constitutional rights.” Id. at *4. A “possibility” of success falls shotr of a “likelihood,” and this aspect ofAutocam cannot be ignored in this Court’s analysis of the Plaintiffs’ entitlement to preliminary injunctive relief.
Notably, the Sixth Circuit denied Autocam ’s motion to reconsider its opinion denying an injunction pending appeal. Autocam Corp. v. Sebelius, No. 12-2673 (6th Cir. Dec. 31, 2012). The motion to reconsider brought to the panel’s attention three supplemental authorities that Autocam argued supported its request for an injunctoin: (1) the Seventh Circuit’s opinion inKorte v. Sebelius, 12-3841 (7th Cir. Dec. 28, 2012) (discussed infra); (2) a temporary restraining order issued by the district court in Conestoga Wood Specialties v. Se belius, 12-6744 (E.D. Pa. Dec. 28, 2012) (the district court in Conestoga subsequently denied preliminary injunctive relief to the plaintiffs; see discussion infra); and (3) United States DistrictJudge Lawrence Zatkoff’s opinion inMonaghan v. Sebelius, 12-cv-15488 (E.D. Mich. Dec. 30, 2012) grantingpreliminary injunctive relief to a closelyheld for profit corporation challenging applicationof the contraceptive coverage regulations. Even in light of these additional authorities, the Sixth Ci rcuit declined to recons ider its original order denying an injunction pending appeal in Autocam.
While the legal landscape has changed some since the Sixth Circuit denied injunctive relief pending appeal in Autocam, the new contours do not dictate the result in this case. At the time that the Sixth Circuit issued its opinion in Autocam, it noted that no circuit had then addressed similar claims. That is no longer the case. InConestoga Wood Specialties Corp. v. Sec’y of U.S. Dep’t of Health and Human Servs., No. 13-1144, 2013 WL 1277419 (3d Cir. Feb. 8, 2013), the Third Circuit denied a stay pending appeal of the district court’s denial of injunctive relief to a closely-held forprofit corporation challenging the contraceptive coverage mandate in Conestoga Wood Specialties
12

2:13-cv-11296-PDB-RSW Doc # 29 Filed 07/11/13 Pg 13 of 33 Pg ID 730
Corp. v. Sebelius, __F. Supp. 2d__, 2013 WL 140110 (E.D. Pa. Jan. 11, 2013). In denying the stay, the Third Circuit concluded that plaintiffs had failed to demonstrate a likelihood of success on the merits and adopted the district court’s reasoning and conclusions that: (1) “as a secular, for-profit corporation, Conestoga has no freeexercise rights under the First Amendment, and is not a ‘person’ under the RFRA;” (2) “the ACA regulations ar e generally applicable because they are not specifically targeted at conduct motivated by religious belief, and are neutral because the purpose of the regulations is to promote public health and gender equality instead of targeting religion” and therefore “need only be ‘rationally related to a legitimate government objective’ to be upheld;” and (3) plaintiffs’ “claims under the RFRA were not likely to succeed because the burden imposed by the regulations does not constitute a ‘substantial burden’ under the RFRA” in so far as “any burden imposed by the regulations would be too attenuated tobe considered substantial and that any burden on the Hahns'ability to exercise their religion would be indirect.” 2013WL 1277419, at *2 (internal citations omitted). Argument on the appeal was heard on May 30, 2013 (Judges Jordan, Vanaskie and Cowen). No opinion has issued.
Unlike the Third Circuit inConestoga, the Seventh Circuit inKorte v. Sebelius, No. 12-3841, 2012 WL 6757353 (7th Cir. Dec. 28, 2012) (consolidated withGrote Indus. LLC v. Sebelius, 13-077 (7th Cir.) for purposes of appeal) granted plaintiffs an injunction against HHS Secretary Sebelius pending appeal of the district court’s denial of their motion for preliminary injunctive relief. The Seventh Circuit concluded that the plaintiffs “established both a reasonable likelihood of success on the merits and irreparable harm, and that the balance of ha rms tips in their favor.” Id. at *2. Describing the “religious-liberty violation” at issue as “the coerced coverage of contraception, abortifacients, sterilization, and related services, not—or perhaps more precisely, not only—in the
13

2:13-cv-11296-PDB-RSW Doc # 29 Filed 07/11/13 Pg 14 of 33 Pg ID 731
later purchase or use of contraception or related services,” the Seventh Circuit concluded that the
contraception mandate imposed a substantial burde n on the plaintiffs’ exercise of their rights,
establishing a likelihood of success on their claim under RFRA. Id. at *3 (emphasis in original).
Also finding irreparable harm and the balance of harms tipping in plaintiffs’ favor, the Seventh
Circuit granted the motion for injunction pending appeal. Judge Rovner dissented in Korte, in a
well-reasoned opinion that this Court discusses infra. Argument on the appeal was heard on May
22, 2013 (Judges Flaum, Rovner and Sykes). No opinion has issued.8
In the first issued opinion reaching the merits of a denial of preliminary injunctive relief in
a contraceptive coverage mandate challenge by similraly-situated plaintiffs, the Tenth Circuit sitting
en banc recently reversed the district court, finding a likelihood of success on the m erits and
irreparable harm, and rem anding for further consi deration of the two rem aining preliminary
8 Other circuits have addressed the issue and issu ed orders, but have provided no rationale. The Eighth Circuit, in a one-sentence split panel decisoi n and in a subsequent order interpreting the split panel decision, appears to have concluded that for-profit corporations challenging the contraceptive coverage mandate are deemed to have shown a likelihood of success on the merits, granting an injunction pending appeal in Annex Medical, Inc. v. Sebelius, No. 13-1118, 2013 WL 1276025 (8th Cir. Feb. 1, 2013). In Annex, the Eighth Circuit interpreted the one-sentence split panel Order in O’Brien v. U.S. Dep’t of HHS, No. 12-3357 (8th Cir. Nov. 28, 2012), which granted a tem porary stay in a similar mandate challenge action, as tantamount to issuing a preliminary injunction. The Eighth Circuit then enjoined enforcement of the mandate against Annex, relief that had been denied by the district court, which had interpretedO’Brien differently because theO’Brien panel provided no rationale for its decision. The EighthCircuit denied motions to consolidate Annex and O’Brien, and dates for oral argument have not been set in either case.
The D.C. Circuit, in Gilardi v. HHS, No. 13-5069 (D.C. Cir. March 21 and 29, 2013), first denied an injunction pending appeal of the districtcourt’s denial of preliminary injunctive relief in a one-sentence order stating only that appellants had not m et the stringent requirements for an injunction pending appeal. Subsequently, after plaintiffs filed an emergency motion for rehearing en banc of the denial, the D.C. Circuit granted the motion for an injunction pending appeal, also in a one-sentence order offering no rationale for its decision. Oral argument is set for September 24, 2013 (Brown, Edwards and Randolph).
14

2:13-cv-11296-PDB-RSW Doc # 29 Filed 07/11/13 Pg 15 of 33 Pg ID 732
injunction factors. Hobby Lobby Stores, Inc. v. Sebelius, __F.3d__, 2013 WL 3216103 (10th Cir. June 27, 2013). Citing the “fundam ental and longsta nding principle of judicial restraint [that] requires courts [to] avoid reaching constitutional questions in advance of the necessity of deciding them,” the majority opinion reviewed only the corporate plaintiffs’ (Hobby Lobby and Mardel) claim under RFRA and did not address their claim under the Free Exercise Clause. Id. at *65 n.2. Nor did the majority reach the issue of whether the individual owners of the corporate plaintiffs (the Greens) had standing to bring RFRA claims in their own right, because “there [was] no dispute that relief as to Hobby Lobby and Mardel would satisfy the Greens.” Id. at *65 n.4. The majority did conclude that Hobby Lobby and Mardel had a likelihood of success on their RFRA claim because Hobby Lobby and Mardel are “persons” under RFRA and the contrac eptive mandate placed substantial pressure on them to violate their sincere religious beliefs, thus substantially burdening their exercise of religion within the meaning of RFRA. Id. at *17.
The Tenth Circuit’s opinion inHobby Lobby, fractured as it is witha majority ruling on two preliminary injunction factors, a plurality opinion on other factors, four separate concurrences and two separate dissents, offers cogentproof of the fact that views continue to diverge widely on these issues. The only rulings that garnered unanimous support were (1) that Hobby Lobby and Mardel have Article III standing to sue under RFRA and (2) that the Anti-Injunction Act did not apply to the case. Id. at *1. A majority of five judges agreed that the district court erred in concluding that Hobby Lobby and Mardel had not demonstrated a likelihood of success on the merits of their RFRA claim. Id. Three judges disagreed with the majority and would have affirmed the district court on this issue. Id. The five judge majority that agreed that the district court had erred on likelihood of success on the merits also agreed that Hobby Lobby and Mardel had satisfied the irreparable harm
15

2:13-cv-11296-PDB-RSW Doc # 29 Filed 07/11/13 Pg 16 of 33 Pg ID 733
prong of the preliminary injunction standard. Id. A four-judge plurality would have resolved the remaining two preliminary injunction factors in favor of Hobby Lobby and Mardel and entered a preliminary injunction, but without a majority on this issue, the case was remanded to the district court for evaluation of the rem aining two factors, i.e. the balance of the harm s and the publ ic interest. Id.
Against this backdrop, this Court analyzes Plaintiffs’ claims, recognizing that the opinions issued by the Third, Seventh and Tenth Circuits do not bind this Court and not ing that the divergence among the district courts, observed by the Sixth Circuit inAutocam and discussed infra, persists. In the absence of a resolution of this issue by the Supreme Court, this Court is bound to take direction from the Sixth Circuit which, to date, at least suggests that Plaintiffs’ claims fail to demonstrate a likelihood of success on the merits.
A. Likelihood of Success on the Merits This Court interprets the Sixth Circuit’s interimopinion in Autocam, refusing to reverse the District Court’s ruling denying a preliminary injunction, as an indication that the Sixth Circuit would conclude that the Mersino’s have failed to establish a clear likelihood of success on the merits of their RFRA and Free Exercise claim s that w ould support the extrem e remedy of pr eliminary injunctive relief. The Sixth Circuit inAutocam based its denial of an injunction pending appeal on (1) “the district court’s reasoned opinion,” and (2) “the Suprem e Court’s recent denial of an injunction pending appeal in Hobby Lobby.” Subsequent developm ents in the jurisprudence surrounding this issue have not undercut either of these rationales. Although the Tenth Circuit reversed the district court in Hobby Lobby, this does not underm ine the significance of Justice Sotomayor’s decision to deny an injunction, admittedly applying a much more stringent standard
16

2:13-cv-11296-PDB-RSW Doc # 29 Filed 07/11/13 Pg 17 of 33 Pg ID 734
than is applicable here, but which was based herown analysis of the district court’s opinion. More importantly, however, the logic and reasoning of Judge Jonker’s opinion in Autocam, and the reasoning of the district courts in Gilardi v. Sebelius, __F. Supp. 2d__, 2013 WL 781150 (D.D.C. March 3, 2013), O’Brien v. HHS, 894 F. Supp. 2d 1149 (E.D. Mo. 2012),Briscoe v. Sebelius, __F. Supp. 2d__, 2013 WL 755413 (D. Colo. Feb. 27, 2013) andAnnex Medical, Inc. v. Sebelius, No. 122804, 2013 W L 101927 (D. Minn. Jan. 8, 2013), and the district court and Third Circuit in Conestoga, supra, along with Judge Rovner’s thoughtful dissent from the Seventh Circuit’s opinion in Korte, persuade this Court that the Mersino’s are unlikely ultimately to succeed on their RFRA and Free Exercise claims.
1. Plaintiffs’ claims under the Free Exercise Clause have little chance of success on the merits.
This Court agrees with Judge Jonker that: “Plaintiffs’ claim based on the Free Exercise Clause of the First Amendment is almost sure to fail [because] [t]he ACA’s contraceptive coverage requirement is neutral and generally applicable.” Autocam, 2012 WL 6845677, at *5. The right to freely practice one’s religion “does not relieve an individual of the obligation to comply” with a “‘valid and neutral law of general applicability onthe ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’”Id. at *5 (quotingEmployment Division Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 877 (quotingUnited States v. Lee, 455 U.S. 252, 263 n. 3 (1982)) (Stevens , J. concurring in the judgm ent). As Justice Scalia’s opinion in Employment Division makes clear, the Free Exercise Clause of the First Am endment does not operate to invalidate neutral laws of general applicability. The contraceptive coverage regulations do not target a particular religious group, nor are theydesigned to interfere with any particular faith. Further, they apply equally to all non-exem pt, non-grandfathered plans. Autocam, 2012 W L
17

2:13-cv-11296-PDB-RSW Doc # 29 Filed 07/11/13 Pg 18 of 33 Pg ID 735
6845677, at *5. See also Conestoga, 2013 WL 140110, at *9 (finding that the regulations apply to
all health plans and are not specifically targeted at conduct motivated by religious belief and that
the exemptions indicate an effort by the government to accommodate religious beliefs, not to burden
them); O’Brien, 894 F. Supp. 2d at 1162 (finding no violation of the free exercise clause because
the regulations “apply to all em ployers not falling under an exem ption, regardless of t hose
employers’ personal religious inclinations”). Because the regulations are neutral and generally
applicable, and are rationally related to the staet d government purposes of promoting women’s and
gender equality, Plaintiffs have failed to dem onstrate a likelihood of succeeding on the merits of
their claim under the Free Exercise Clause.9
9 The June 28, 2013, final regulations issued by HHS, Labor and T reasury, reiterate the government’s purpose in requiring contraceptive coverage without cost sharing:
The HRSA Guidelines are based on recommendations of the independent Institute of Medicine (IOM), which undertook a reviewof the scientific and medical evidence on women’s preventive services. As docum ented in the IOM report, “Clinical Preventive Services for W omen: Closing the Gaps,” women experiencing an unintended pregnancy may not immediately be aware that they are pregnant, and thus delay prenatal care. They also m ay be less m otivated to cease behaviors during pregnancy, such as smoking and consumption of alcohol, that pose pregnancy-related risks. Studies show a greater risk of preterm birth and low birth weight am ong unintended pregnancies. In addition, contraceptive use helps women improve birth spacing and therefore avoid the increased risk of adverse pregnancy outcomes that comes with pregnancies that are too closely spaced. Short interpregnancy intervals in particular have been associated with l ow birth weight, prem aturity, and small-for-gestational age births. Contraceptives also have m edical benefits for women who are contraindicate d for pr egnancy, and there are dem onstrated preventive health benefits from contraceptives relating to conditions other than pregnancy (for exam ple, prevention of cer tain cancers, m enstrual disorders, and acne). In addition, by reducing the number of unintended pregnancies, contraceptives reduce the number of women seeking abortions. It is for a woman and her health care provider in each particular case to weigh any risks against the benefits in deciding whether to use contraceptive services in general or any par ticular contraceptive service.
18

2:13-cv-11296-PDB-RSW Doc # 29 Filed 07/11/13 Pg 19 of 33 Pg ID 736
2. Plaintiffs’ claims under RFRA have little likelihood of success on the merits. Congress enacted RFRA in response to the Suprem e Court’s decision in Employment Division, Department of Human Services of Oregon v. Smi th, 494 U.S. 872 (1990), which had expressly disavowed application of the substantial burden test to free exercise claims and held that neutral laws of general applicability are subjectto rational basis review. 42 U.S.C. § 2000bb(b)(1). (noting that the purpose of RFRA was “to restore the compelling interest test as set forth inSherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where the free exercise ofreligion is substantially burdened”). Pursuant to RFRA, the government may not “substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability,” unless the burden, even though substantial, “(1) is in furtherance of a com pelling government interest; and (2) is the least restrictive m eans of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(a)-(b). See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal , 546 U.S. 418, 424 (2006). Plaintiff bears “the burden of establishing the elements of a prima facie case: that application of the offensive law or policy would substantially burden a sincere, religious exercise.” Conestoga, 2013 WL 140110, at *9. “Once a prima facie case has been satisfied,the government bears the burden of demonstrating a compelling interest and that the government employed the least restrictive means of carrying out that interest.” Id. (citing O Centro, 546 U.S. 418, 428-29). Although they concede t hat they do not qualify for any of the exem ptions crafted by Congress in the ACA, and concede further that they are not a “grandfathered” plan under the ACA, Plaintiffs would have the C ourt conclude that Congress, in enacting R FRA, meant to create an
http://www.ofr.gov/OFRUpload/OFRData/2013-15866_PI.pdf at p. 10 (footnotes omitted). 19

2:13-cv-11296-PDB-RSW Doc # 29 Filed 07/11/13 Pg 20 of 33 Pg ID 737
exemption for secular, for-profit corporations like Mersino Management from federal laws, like the ACA, that otherwise seek to regulate secular for-profit corporate behavior. Plaintiffs invite the Court to ignore altogether the corporate form of which they have availed themselves, and to ascribe to Mersino Managem ent, the corporate ent ity, the religious beliefs of its owners/shareholders. Alternatively, Plaintiffs ask the Court to conclude that Rodney and Karen Mersino, although admittedly not subject to the ACA, are nonetheless substantially burdened in the exercise of their own religious faith by the application of the conrtaceptive coverage regulations to the company that they own.
The Court concludes that Plaintiffs have not demonstrated that they are likely to succeed on their claims because it appears more likely to the Court that Mersino Managment, as a secular forprofit company, cannot “exercise” religion and ca nnot act as the alter ego of its owners in challenging the contraceptive mandate under RFRA. Moreover, even a ssuming that Rodney and Karen Mersino have standing to challenge the contraceptive coverage mandate, as individuals, the Mersinos have not dem onstrated a clear likelihood of success because the regulations do not substantially burden them in the exercise of their individual religious beliefs.
a. The threshold issue of standing. Although the parties do not address the threshold issue of standing in their briefs, the Sixth Circuit in Autocam recently asked the parties in that case for supplemental briefing on the issue of standing. Thus, the issue seem s to m erit mention here. It appears to this Court that Mersino Management, the entity required to comply with the regulations, likely has Article III standing to challenge the contraceptive coverage mandate. See Hobby Lobby, __F.3d__, 2013 WL 3216103, at *6 (concluding that both Hobby Lobby and Mardel have Article III standing because both face
20

2:13-cv-11296-PDB-RSW Doc # 29 Filed 07/11/13 Pg 21 of 33 Pg ID 738
“an imminent loss of money, traceable to the contraceptive-coverage requirement [and] [b]oth would receive redress if the court holdsthe contraceptive-coverage requirement unenforceable as to them”). Mersino Management’s claims fail, however, on the merits, because it cannot exercise religion and cannot act as the alter ego of its owners for purposes of asserting a RFRA claim . See discussion infra.
Some courts addressing challenges to the contraceptive coverage mandate have addressed the standing issue head on, but others have addre ssed the issue only as a merits-based challenge. Several courts have concluded that a corporation cannot exercise religion and is not a person under RFRA and therefore has no standing to assert a RFRA claim. Others have not addressed t he standing issue and simply concluded that a corporation cannot exercise religion and therefore has little likelihood of succeeding on a claimunder RFRA. Compare Gilardi, 2013 WL 781150, at *8 (holding that “the Freshway Corporations do notexercise religion and therefore cannot succeed on the merits of a claim that the regul ation substantially burdens their exercise of religion”) with Briscoe, 2013 WL 755413, at *5 (holding that a secular, for-profit corporation cannot exercise or practice religion and therefore “lack[s] standing to assert an RFRA claim that a federal regulation burdens their “exercise of religion”). Because, as the Tenth Circuit noted in Hobby Lobby, the corporation is required to com ply with the contraceptive coverage m andate and would receive redress if granted an injunction, it would appear to this Court that the issue is not one of Mersino Management’s Article III standing to challenge theregulation but rather ofthe corporation’s ability to state a claim under RFRA. This Court need notdecide this issue because, whether framed as an issue of standing or as m erits-based challenge, the Court concludes that Mersino Management is unlikely to succeed on its RFRA claim.
21

2:13-cv-11296-PDB-RSW Doc # 29 Filed 07/11/13 Pg 22 of 33 Pg ID 739
Additionally, it does not appear likely to this Court that Mersino Management would have Article III standing to assert a RFRA claim on behalf of its shareholders under the doctrine of associational standing. The Court notes, as the government argues in its briefs to the Sixth Circuit, that the doctrine of associational standing has beenconfined to situations where the members of the association would (1) “otherwise have standing to bring suit on behalf of its m embers;” (2) “the interests it seeks to protect are germane to the organization’s purpose;” and (3) “neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hunt v. Washington State Appl e Adver. Comm’n, 432 U.S. 333, 343 (1977). See, e.g. Tony and Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 292 (1985) (holding that non-profit religious organization had standing to assertfree exercise claimon behalf ofits “associates” who were “drug addicts, derelicts, or criminals”); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 458 (1958) (holding that NAACP, a nonprofit entity, could assert the rights of its m embers to challenge a compulsion by the State to disclose their identities).
Karen and Rodney Mersino, who are not requi red individually to com ply with the regulations, do not suffer actual injury (they incur no out of pocket costs as individuals) from the contraceptive coverage mandate that would imbue them with Article III standing to challenge the regulations separate and apart f rom the corporate entity that is required to com ply with the regulations. Thus, the first prong of the associational standing analysis cannot be met here. Even if they did have standing, as discussed infra, their claims are not likely to succeed on the merits.
22

2:13-cv-11296-PDB-RSW Doc # 29 Filed 07/11/13 Pg 23 of 33 Pg ID 740
b. Mersino Management is not likely to succeed on its claim under RFRA as a secular, for profit company engaged in purely commercial activity.
Plaintiff Mersino Management is a secular, for-profit company engaged in the business of water management, designing and installing bypass pumping systems of all types and sizes. See www.mersino.com. It is not, and does not claim to be, a religious organization entitled to f ree exercise protections. Cf. Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC , __U.S.__, 132 S.Ct. 694, 706 (2012) (findingthat “the text of the First Amendment . . . gives special solicitude to the rights of religious organizations”); O’Centro, 546 U.S. at 420. This Court agrees with the district court inConestoga that “the distinction between religious organizations and secular corporations [is] meaningful, and decline[s] to act as though this difference does not matter.” 2013 WL 140110, at *7.
Mersino Management’s Articles of Incorporation do not mention a religious purpose, it does not employ persons of only a particular religious faith, it does not purport to conduct religi ous services as part of its business m odel. Indeed, Mersino M anagement recognizes that it does not qualify as an exempt religious organization under the ACA, nor does its core business product, i.e. ground water control systems, reflect in any way a religious purpose.Cf. Tyndale House Publishers, Inc. v. Sebelius, 904 F. Supp. 2d 106 (D.D.C. 2012) (Christian book publishing com pany, 95% owned by a non-profit religious foundation that recevies 96.5% of the company’s distributed profits, whose articles of incorporation declare as its purpose “to minister to the spiritual needs of people,” and that holds religious s ervices on corporate premises weekly, was indistinguishable from its owners for purposes of asserting free exercise righst). “So far as it appears, the mission of [Mersino Management], like that of any other for-profit, secular business, isto make money in the commercial sphere.” Grote, 708 F.3d at 857 (Rovner, J. dissenting).See also Hobby Lobby, 2013 WL 3216103,
23

2:13-cv-11296-PDB-RSW Doc # 29 Filed 07/11/13 Pg 24 of 33 Pg ID 741
at *49 (concluding that Hobby Lobby and Mardel “ar e for-profit corporations focused on selling merchandise to consumers,” that do not enjoy free exercise rights and further noting that “not a single case, until now, has extended RFRA’s protections to for-profit corporations”) (Briscoe, C. J. dissenting); Conestoga, 2013 WL 140110, at *7 (noting that “[g]eneral business corporations . . . do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors”); Gilardi, 2013 WL 781150, at *7 (finding that “the Freshways Corporations are engaged in purely commercial conduct and do not exercise religion under the RFRA”). As the ThirdCircuit observed in affirming the district court’s refusal to grant an injunction in Conestoga: “Unlike religious non-profit corporations or organizations, the religious liberty relevant in the context of for-profit corporations is the liberty of its individuals, not of a profit-seeking corporate entity.” Conestoga, 2013 WL 1277419, at *5 (Garth, J. concurring) (emphasis in original).
Plaintiffs argue that Citizens United v. Federal Election Comm’n, 558 U.S. 310 (2010) requires this Court to recognize t he free exercise rights of a for-profit corporation. In Citizens United, the Supreme Court held that a corporationhas free speech rights under the First Amendment to the Constitution. However, as Judge Goldberg recognized in Conestoga: “Although [the free speech and free exer cise clauses] reside within the sam e constitutional am endment, these two provisions have vastly differentpurposes and precedents . . . .” 2013 WL 140110, at *7. This Court agrees that history and precedent teach that religious belief and worship, and the protections afforded under the free exercise clause, are more “purely personal” in nature and, under the facts of this case, are “unavailable to a escular, for-profit corporation.” Id. Plaintiffs have failed to convince the Court that because the Supreme Court recognized free speech rights of corporations it would
24

2:13-cv-11296-PDB-RSW Doc # 29 Filed 07/11/13 Pg 25 of 33 Pg ID 742
likewise recognize free exercise rights in a secular for-profit entity such as Mersino Management. Mersino Management is in the business of selling water bypass systems for profit. The fact
that its owners m ay hold deep religious bel iefs, and that the m ission statement of the com pany includes a statem ent of fealty to God, does not c onvert this secular, for profit com pany into a religious organization capable of exe rcising religion. See Gilardi, 2013 W L 781150, at *6-7 (holding that corporate messages and charitable activities with a religious tehme do not establish that the corporations themselves “exercise religion”); Briscoe, 2013 WL 755413, at *5 (holding that “[s]ecular, for-profit corporations neither exercise nor practice religion” and concluding that they lacked standing to bring a claimunder RFRA). Mersino Management is not a religious organization, does not appear capable of “exercising religion”and is unlikely to succeed on its claimunder RFRA.
c. Mersino Management is unlikely to succeed on its clai m that it can assert a RFRA claim based on the religious beliefs of its shareholder/owners.
Nor can Karen and Rodney Mersino impute their own religious beliefs to their corporation so that the corporation can act as their alter ego and assert those rights on behalf of the Mersinos. “‘[I]ncorporation’s basic purpose is to create a distinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created it, own it, or whom it employs.’” Conestoga, 2013 WL 140110, at *8 (quotingCedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 163 (2001)). Having assumed the corporate form, and all of the benefits and protections that corporate status assures, the Mersinos cannot simply ignore that form when it suits their needs. “[T]here is a distinction [between a corporation and its owners], and it m atters in important respects.” Grote, 708 F.3d at 857 (Rovner, J. dissenting). As Judge Jonker explained in Autocam:
Standing between the [Mersinos] and thedecisions some [Mersino] employees make 25

2:13-cv-11296-PDB-RSW Doc # 29 Filed 07/11/13 Pg 26 of 33 Pg ID 743
to procure contraceptive services are not only the independent decisions of an employee and the employee's health care provider, but also the corporate formitself. The ability to operate in a corporate f orm has tax and liability consequences that promote aggregation of capital and productive enterpriseU. nited States v. Bestfoods, 524 U.S. 51, 61, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998). As corporate owners, the [Mersinos] quite properly enjoy the protections and benefits of the corporate form. But the legal separation of the owners from the corporate enterprise itself also has implications at the enterprise level. A corporate form brings obligations as well as benefits. “When followers of a particular sect enter into commercial activities as a matter of choice, the lim its they accep t on t heir own conduct as a m atter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” [United States v.] Lee, 455 U.S. [252 (1982)] at 261 . Whatever the ultimate limits of this principle may be, at a minimum it means the corporation is not the alter ego of itsowners for purposes of religious belief and exercise.
Any burden on the [Mersinos’s] free exercise caused by r egulation on the corporation they own is probably too attenuated to be substantial. The mandate does not compel the [Mersinos] as individuals to do anything. They do not have to use or buy contraceptives for them selves or anyone else. It is only the legally separate entities they currently own t hat have any obligation under the m andate. The law protects that separation between the corpoar tion and its owners for many worthwhile purposes. Neither the law nor equity can ignore the separation when assessing claimed burdens on the individual owners' free exercise of religion caused by requirements imposed on the corporate entities they own.
2012 WL 6845677, at *6. In accord Conestoga , 2013 W L 140110, at *8 (agreeing with the
Autocam court and noting that “[i]t would be entirelyinconsistent to allow the [Mersinos] to enjoy
the benefits of incorporation, while sim ultaneously piercing the corporate veil for the lim ited
purpose of challenging these regulations”); Gilardi, 2013 WL 781150, at *4-5 (agreeing with the
Autocam and Conestoga courts that having chosen to conduct their business through the corporate
form, individual owners “cannot simply impute their views onto the corporation such that requiring
the corporation to provide preventive services c overage is the sam e as requiring the [individual
owners] personally to provide services coverage”); Briscoe, 2013 W L 755413, at *6 (citing
Conestoga citing Autocam and holding that “Briscoe cannot use corporate status to shield himself
26

2:13-cv-11296-PDB-RSW Doc # 29 Filed 07/11/13 Pg 27 of 33 Pg ID 744
from liability and at the same [time] use it as a sword to assert an RFRA claim .”); Hobby Lobby,
2013 WL 3216103, at *50 (noting that “it is simply unreasonable to allow the individual plaintiffs
in this case to benef it, in term s of tax and personal liability, f rom the corporate/individual
distinction, but to ignore that distinction when itcomes to asserting claims under RFRA”) (Briscoe,
C.J. dissenting).10
Even if in som e unique circum stance a for-profit corporation m ay be so im bued with
religious attributes that a different analysis m ight apply, see, e.g. Tyndale , supra, those
circumstances do not exist in this case. And, in any event, the idea of deciding on a case-by-case
basis when a for-profit corporation might be “religious enough” to earn exemption from generally
applicable federal laws is a slippery slope no court should attem pt go down. As Judge Jonker
observed in Autocam:
Finally, the implications of the Plaintiffs' theory are troubling in a way that further undermines their probability of success. Plaintiffs argue, in essence, that the Court cannot look beyond their sincerely held assertion of a religiously based objection to the mandate to assess whether it actually functions as a substantial burden on the exercise of religion. But if accepted, thistheory would mean that every government regulation could be subject to the compelling interest and narrowest possible means test of RFRA based simply on an asserted religious basis for objection. This would subject virtually every gove rnment action to a potential private veto based on a person's ability to articulate a sincerely held objection tied in some rational way to a particular religious belief. Such a rule would paralyze the nor mal process of governing, and threaten to replace a ge nerally uniform pattern of econom ic and social regulation with a patchwork array of theocratic fiefdoms.
10 This Court disagrees with the Ninth Circuit’s decisions in EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610, 619-620 (9th Cir. 1988) and Stormans, Inc. v. Selecky, 586 F.3d 1109, 112–21 (9th Cir. 2009), whi ch held that for-pro fit corporations have standing to assert the rights of their shareholders. Such a conclusion, as discussedsupra, at least on the facts ofthis case, is at odds with basic tenets of corporate law. See Conestoga, 2013 WL 140110, at *7-8 (rejecting the reasoning of Townley and Stormans as out of line with incorporation’s basic purpose and concluding that Conestoga did not possess free exercise rights under the First Amendment).
27

2:13-cv-11296-PDB-RSW Doc # 29 Filed 07/11/13 Pg 28 of 33 Pg ID 745
2012 WL 6845677, at * 7. Chief Judge Briscoe m ade a similar observation in her well-reasoned
dissent in Hobby Lobby:
[I]f all it takes f or a corporation to be cat egorized as a “faith based business” for purposes of RFRA is a com bination of a general religious statem ent in the corporation's statement of purpose and more specific religious beliefs on the part of the corporation's founders or owners, the majority's holding will have, intentionally or unwittingly, opened the floodgates to RFRA litigation challenging any number of federal statutes that govern corporate affairs (e.g., Title VII of the Civil Rights Act of 1964, the Fair Labor Standards Act). . . . In short, the majority's holding threatens to entangle the government in the impermissible business of determining whether for-profit corporations are sufficiently “religious” to be entitled to protection under RFRA from a vast array of federal legislation.
2013 WL 3216103, at *51 (internal citations omitted) (Briscoe, C. J. dissenting).
The ramifications of concluding that Plaintiffs may assert claims under RFRA through their
corporation go far beyond t he contraceptive coverage mandate at issue here. As Judge Rovner
observed in her dissenting opinion inGrote, contraceptive coverage is the current “hot button” issue,
but similar controversial issues loom on the horizon:
But contraceptive care is by no m eans the sole form of health care that im plicates religious concerns. To cite a few exam ples: artificial insem ination and other reproductive technologies; gene tic screening, counseling, and gene therapy; preventative and rem edial treatment for sexually-transmitted diseases; sex reassignment; vaccination; organ transplantation from deceased donors; blood transfusions; stem cell therapies; end-of -life care, including the initiation and termination of life support; and, ofr some religions, virtually all conventional medical treatments. If the RFRA entitles the cont rolling shareholder of a corporation to exclude coverage for contraceptive care fromthe company's health plan on the basis of his religious beliefs, then, as I noted in Korte v. Sebelius, 2012 WL 6757353, at *5, and as Judge Barker noted below,see Grote Indus., ––– F.Supp.2d at ––––, 2012 WL 6725905, at *6, I can se e no reason why coverage for any number of medical services could not also be excluded froma workplace health plan on the same basis.
708 F.3d at 866 (Rovner, J. dissenting). This Court concurs with this compelling analysis.
Mersino Management chose the corporate form . It is not an individual or a non-profit
religious organization entitled to protection in the f ree exercise of its religious belief s. As the
28

2:13-cv-11296-PDB-RSW Doc # 29 Filed 07/11/13 Pg 29 of 33 Pg ID 746
Supreme Court recognized in Lee: “When followers of a particular sect enter into com mercial
activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience
and faith are not to be superimposed on the statutory schemes which are binding on others in that
activity.” 455 U.S. at 261. Plaintiffs Karen andRodney Mersino (1) chose the corporate form, and
(2) cannot ignore the corporate form and impute their religious beliefs onto their corporation for
purposes of asserting a claim under RFRA.11 Mersino Managem ent thus has little likelihood of
succeeding on a claim based upon the religious beliefs of its owners.
d. Even assuming that Rodney and Karen Mersino have standing as individuals to challenge the regulations under RFRA,they are unlikely to succeed on their claim that the contraceptive coverage mandate substantially burdens their exercise of religion.
Karen and Rodney Mersino are not required to com ply with the contraceptive coverage
mandate and therefore lack standing to assert a claim under RFRA challenging those regulations.
Even assuming arguendo that the M ersinos did have standing as individuals to challenge the
regulations as a substantial burden on their exercise of their personal faith, any burden imposed on
them likely would be too attenuated given the indi rect nature of their involvement and given the
11 Nor is the Court inclined to see a distinction in this case based upon the fact that Mersino Management has decided t o self-fund their em ployees’ insurance needs; the obligation to cover contraceptives still “falls not on the [Mersinos] personally but on [Mersino Management’s] health care plan.” Grote, 708 F.3d at 863 (Rovner, J. dissenting) (noting further that “one ought to acknowledge that the self-funding arrangement is one of the employer’s making - and possibly one having little or nothing to do with the employer’s religious beliefs - rather than the government’s.”). See also Autocam, 2012 WL 6845677, at *6 n.1 (“If the Plaintiffs are more comfortable religiously and morally with more layers of insulation between the wages and benefits earned, on the one hand, and an em ployee’s decision to acquire contraceptives with them , Plaintiffs have the option of restructuring from a self-insured plan to an insured plan.”). In this case, several layers insulate the Mersinos, who employ independent third party administrators for both medical and prescription drug coverage, and could, if they chose, create a cafeetria health care spending account for employees to further insulate themselves from individual employees’ decisions to utilize birth control.
29

2:13-cv-11296-PDB-RSW Doc # 29 Filed 07/11/13 Pg 30 of 33 Pg ID 747
protection afforded to themby the corporate form. See, e.g. O’Brien, 894 F. Supp. 2d at 1159 (“The Court rejects the proposition that requiring indi rect financial support of a practice, from which plaintiff himself abstains according to his religious principles, constitutes a substantial burden on plaintiff’s religious exercise.”); Annex, 2013 WL 101927, at *4, 9 (rejecting the proposition “that requiring indirect financial support of a practice from which plaintiff himself abstains according to his religious principles, constitutes a substantial burden on plaintif f’s religious exercise” and concluding that RFRA “was not designed to protect against the slight burden on religious exercise that arises when one’s money circuitously fl ows to support the conduct of other free-exercisewielding individuals who hold religious beliefs th at differ from one’s own”) (internal quotation marks and citation omitted); Grote, 708 F.3d at 858-59 (noting that “[a]ny burden imposed on the Grotes individually by the contraception mandate is, as Judge Barker reasoned, likely too remote and attenuated to be considered substantial”) (Rovner, J. dissenting) (internal quotation marks and citation omitted); Conestoga, 2013 WL 140110, at *14 (finding any burden imposed on the Hahns individually to be “too attenuated to be considered substantial” where a “series of events must first occur before the actual use of an abortifacient woudl come into play” and finding that the corporate form “further separates the Hahns fr om the requirements of the ACA”); Autocam, 2012 W L 6845677, at *7 (finding that the m andate “does not compel the Kennedys as individuals to do anything” and observing that given the separation between a corporation and its ownres/shareholders “[a]ny burden on the [individual owners] free exercsie caused by regulation on the corporation they own is probably too attenuated to be substantial”)C; onestoga, 2013 WL 140110, at *14 (noting that the corporate formfurther separates the individualowners and that whatever burden the owners may feel from being involved with a secular for-profit entity that provides health insurance that might
30

2:13-cv-11296-PDB-RSW Doc # 29 Filed 07/11/13 Pg 31 of 33 Pg ID 748
be used to pay for contraceptives is “sim ply too indirect to be considered substantial under t he RFRA”).
Plaintiffs maintain that their sincerely held religious beliefs preclude them from indirectly providing the m eans for their em ployees to make the independent decision to purchase contraceptives, i.e they assert that being forced to provide coverage places a substantial burden on their religious exercise, regardless of whether an employee actually chooses to obtain contraceptives under the plan. Plaintiffs argue that courts that have concluded that any burden imposed on them by the regulations is too attenuated to be substantial a re in fact questioning this fundam ental sincerely held belief, which all parti es agree courts are precluded from doing under a RFRA analysis. Plaintiffs claim this gives them a “silver bullet,” that by alleging sincerity, the discussion is over. Not so! As m any courts have noted, permitting Plaintif fs to determine what constitutes “substantial” and then insulating this proposition from challenge, im permissibly converts t he “substantial burden” requirement to an “any burden” showing. Gilardi, 2013 WL 781150, at *8 (declining to “follow several recent cases suggesting that a plaintiff can m eet his burden of establishing that a law creates a ‘substantial burden’ upon his exercise of religion simply because he claims it to be so” because to do would impermissibly convert the “substantial burden” of RFRA to an “any burden” standard); Conestoga, 2013 WL 140110, at *12 (rejecting the notion that “a plaintiff shows a burden to be substantial sim ply by claim ing that it is” as presenting “a very slippery slope upon which we are not prepared to descend”).
This Court agrees with the reasoning of these courts and concludes that Karen and Rodney Mersino, if they had standing to challenge th e regulations under RFRA, would be unlikely to succeed on a claim under RFRA based upon any burden im posed by the contraceptive coverage
31

2:13-cv-11296-PDB-RSW Doc # 29 Filed 07/11/13 Pg 32 of 33 Pg ID 749

mandate on their exercise of their fait h as individuals. This Court agrees that it is likely that the

burden Plaintiffs define is too attenuated to be substantial, and that defining a burden as substantial

merely because Plaintiffs claim it is substantial has great potential for abuse. The Court finds it

significant, if not dispositive, that Mersino Management’s decision to operate in the corporate of rm

further insulates the Mersinos fromany burden that the regulations might impose on the corporation.

The Court concludes that the Mersinos as individuals have little likelihood of succeeding on their

RFRA claim.

B. Irreparable Harm

Plaintiffs argue, and courts have agreed, th at because Defendants have already granted

significant exemptions to the m andate, and because they have consented to the im position of

injunctive relief in several cases involving similarly situated corporate and individual entities, they

cannot claim to face irreparable harm if an injunction is entered in this case. See Geneva College

v. Sebelius, No. 12-00207, 2013 WL 3071481, at *11 (W.D. Pa. June 18, 2013) (“Defendants cannot

claim irreparable har m in this case while acqui escing to prelim inary injunctive relief in other

cases.”) However, where the governm ent has conceded to injunctive relief, it appears that it has

generally done so i n jurisdictions where the legal landscape has been set against them , and

continuing to litigate the claims in those jurisdictions would be a waste of both judicial and client

resources. The Sixth Circuit is not such a jurisdiction.

Further, as the Court noted supra, Plaintiffs’ claim of irreparable harm is undermined by

their delay in filing this action and this motion.

C. Harm to Others and the Public Interest

The Court concludes that, given its analysis on the likelihood of success on the m erits,

which weighs decidedly against granting preliminary injunctive relief, and given its observations

32

2:13-cv-11296-PDB-RSW Doc # 29 Filed 07/11/13 Pg 33 of 33 Pg ID 750

on the issue of irreparable harm, it need not address these two remaining factors. “Although no one factor is controlling, a finding that there is simply no likelihood of success on the merits is usually fatal.” Gonzales, 225 F.3d at 625. See Eden Foods, Inc. v. Sebelius, No. 13-11229, (E.D. Mich. May 21, 2013) (Hood, J.) (denying injunction to closely held secular for profit corporation and its owners challenging the contraceptive coverage mandate, finding that plaintiffs had notdemonstrated a likelihood of success on the me rits and concluding that the rem aining preliminary injunction factors need not be addressed). IV. CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiff’s motion for preliminary injunctive relief. IT IS SO ORDERED.

Dated: July 11, 2013

s/Paul D. Borman PAUL D. BORMAN UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoni g order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on July 11, 2013.

s/Deborah Tofil Case Manager

33

 
 2:13-cv-11296-PDB-RSW Doc # 32 Filed 07/17/13 Pg 1 of 4 Pg ID 754

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

______________________________

)

MERSINO MANAGEMENT;

)

COMPANY, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

KATHLEEN SEBELIUS, et al., )

)

Defendants.

)

_______________________________)

Case No. 2:13-cv-11296 Judge Paul D. Borman Magistrate Judge R. Steven Whalen

JOINT MOTION TO STAY DISTRICT COURT PROCEEDINGS PENDING APPEAL
The parties jointly move this Court to enter an order staying further proceedings in this Court pending resolution of the pending appeal to the United States Court of Appeals for the Sixth Circuit of this Court’s denial of plaintiffs’ motion for a preliminary injunction. In support of this motion, the parties state as follows:
1. On July 11, 2013, this Court entered an opinion and order denying plaintiffs’ motion for a temporary restraining order and preliminary injunction. See Opinion and Order Denying Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction, ECF No. 29.

2:13-cv-11296-PDB-RSW Doc # 32 Filed 07/17/13 Pg 2 of 4 Pg ID 755
2. On July 11, 2013, plaintiffs appealed to the United States Court of Appeals to the Sixth Circuit this Court’s order denying a temporary restraining order and preliminary injunction. See Notice of Appeal, ECF No. 30.
3. Defendants’ response to plaintiffs’ complaint is currently due on August 12, 2013. See Order Granting Motion for Extension of Time to Answer, ECF No. 14.
4. “[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes of its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance.” Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936). “Although the filing of an interlocutory appeal does not automatically stay proceedings in the district court, the district court has broad discretion to decide whether a stay is appropriate.” Ass’n of Irritated Residents v. Fred Schakel Dairy, 634 F. Supp. 2d 1081, 1094 (E.D. Cal. 2008).
5. Absent a stay of district court proceedings, defendants intend to move to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6). Defendants’ intended motion to dismiss will raise legal issues regarding plaintiffs’ RFRA and free exercise claims that are likely to be addressed by the Sixth Circuit in adjudicating the appeals of this Court’s order denying plaintiffs’ motion for a
2

2:13-cv-11296-PDB-RSW Doc # 32 Filed 07/17/13 Pg 3 of 4 Pg ID 756

temporary restraining order and preliminary injunction. The parties believe it

would be inefficient to concurrently litigate these issues in both courts.

Accordingly, the parties respectfully request that this Court enter an order

staying all district court proceedings pending a further order of this Court, or upon

a motion to lift the stay filed by either party.

Respectfully submitted this 17th day of July, 2013,

/s/ Erin Mersino

STUART F. DELERY

Erin Mersino, Esq. (P21410)

Acting Assistant Attorney General

Thomas More Law Center

24 Frank Lloyd Wright Drive

IAN HEATH GERSHENGORN

P.O. Box 393

Deputy

Assistant Attorney General

Ann Arbor, MI 48106

emersino@thomasmore.org

BARBARA L. MCQUADE

(734) 827-2001

United

States Attorney

JENNIFER RICKETTS Director

Deputy

SHEILA M. LIEBER Director

BRADLEY Trial
U.S. Civil 20 Washington, Tel: Email:

/s/ Bradley P. Humphreys P. HUMPHREYS
Attorney Department of Justice Division, Federal Programs Branch Massachusetts Avenue N.W.
D.C. 20001 (202) 514-3367; Fax: (202) 616-8470
bradley.p.humphreys@usdoj.gov VA Bar. No. 83212

Attorneys for Defendants

3

2:13-cv-11296-PDB-RSW Doc # 32 Filed 07/17/13 Pg 4 of 4 Pg ID 757

CERTIFICATE OF SERVICE I certify that, on July 17, 2013, I electronically filed the foregoing paper with the Clerk of Court using the ECF system, which will send notification of such filing to the following:

Erin Mersino, Esq. (P21410) Thomas More Law Center 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, MI 48106 emersion@thomasmore.org (734 827-2001
BRADLEY Trial
U.S. Civil 20 Washington, Tel: Email:

/s/ Bradley P. Humphreys P. HUMPHREYS
Attorney Department of Justice Division, Federal Programs Branch Massachusetts Avenue N.W.
D.C. 20001 (202) 514-3367; Fax: (202) 616-8470
bradley.p.humphreys@usdoj.gov VA Bar. No. 83212

 
 2:13-cv-11296-PDB-RSW Doc # 33 Filed 07/31/13 Pg 1 of 2 Pg ID 758

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MERSINO MANAGEMENT COMPANY; KAREN A. MERSINO, Owner and Shareholder of Mersino Southwest, LLC and Mersino Enterprises, Inc., and RODNEY A. MERSINO, Owner and Shareholder of Mersino Management Company, Global Pump Company, LLC and Mersino Dewatering, Inc.,

Case No. 13-cv-11296
Paul D. Borman United States District Judge

Plaintiffs,

v.

KATHLEEN SEBELIUS, et al.,

Defendants. ______________________________________/

ORDER GRANTING JOINT MOTION TO STAY DISTRICT COURT PROCEEDINGS PENDING APPEAL (ECF NO. 32)

Before the Court is the Joint Motion to Stay District Court Pr oceedings Pending Appeal.

(ECF No. 32.) Given the parties’ joint request that this litigation be stayed pending the outcome of

Plaintiffs’ appeal of this Court’s July 11, 2013 ordre denying Plaintiffs’ request for injunctive relief,

the motion is GRANTED.

The above-captioned matter is stayed pending further order of this Court, or upon motion to

lift the stay by either party.

IT IS SO ORDERED.

Dated: July 31, 2013

s/Paul D. Borman PAUL D. BORMAN UNITED STATES DISTRICT JUDGE

1

2:13-cv-11296-PDB-RSW Doc # 33 Filed 07/31/13 Pg 2 of 2 Pg ID 759 CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoni g order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on July 31, 2013.
s/Deborah Tofil Case Manager
2

 
 2:13-cvC-1a1s2e9:61-3P-D1B94-R4SWDoDcuomc #en3t5: 45F-i1led 0F7il/e0d9:/1047/0P9/g2011o4f 3 PPageI:D1776

(1 of 3)

No. 13-1944

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

MERSINO MANAGEMENT COMPANY, et )

al.,

)

)

Plaintiffs-Appellants,

)

)

v.

)

)

SYLVIA BURWELL, Secretary of the United )

States Department of Health and Human

)

Services, et al.,

)

)

Defendants-Appellees.

)

FILED
Jul 09, 2014 DEBORAH S. HUNT, Clerk
O R D E R

Before: BATCHELDER, Chief Judge; BOGGS and CLAY, Circuit Judges.
The plaintiffs appeal the denial of a preliminary injunction in this action raising religious objections in challenge to the mandate provisions of the Affordable Care Act. On appeal, the plaintiffs moved for an injunction pending appeal to enjoin “the substantive requirement imposed in 42 U.S.C. § 300gg-13, as well as any penalties and fines for non-compliance.” The defendants opposed the motion and moved for summary affirmance. The plaintiffs further moved to expedite the appeal. Also, Eric Rasmussen, an economics professor at Indiana University, sought leave to file an out-of-time amicus brief in support of the plaintiffs.
Upon the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ___, 2014 WL 2921709 (June 30, 2014), the plaintiffs filed a notification indicating that after conference with the defendants, the defendants no longer oppose the plaintiff’s motion for an injunction pending appeal.

2:13-cvC-1a1s2e9:61-3P-D1B94-R4SWDoDcuomc #en3t5: 45F-i1led 0F7il/e0d9:/1047/0P9/g2021o4f 3 PPageI:D2777
No. 13-1944 - 2 -

(2 of 3)

Therefore, the motion for an injunction pending appeal is GRANTED, and the provision

of 42 U.S.C. § 300gg-013 shall not apply to the plaintiffs pending the appeal. The motion for

leave to file an out-of-time amicus brief and the defendants’ motion for summary affirmance are

DENIED. In view of the injunction pending appeal and the briefing schedule now in place, the

motion to expedite is denied as moot.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

2:13-cvC-1a1s2e9:61-3P-D1B94-R4SWDoDcuomc #en3t5: 45F-i2led 0F7il/e0d9:/1047/0P9/g2031o4f 3 PPageI:D1778

(3 of 3)

Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988
Filed: July 09, 2014

Tel. (513) 564-7000 www.ca6.uscourts.gov

Mr. Bradley Humphreys Ms. Alisa B. Klein Mr. Mark B. Stern Ms. Erin Elizabeth Mersino Mr. Eric Rasmusen

Re:

Case No. Kathleen

13-1944, Sebelius,

Mersino et al

Mgmt

Co,

et

al

v.

Originating Case No. : 2:13-cv-11296

Dear Counsel: The Court issued the enclosed Order today in this case.

Sincerely yours,

cc: Mr. David J. Weaver Enclosure

s/Patricia J. Elder Senior Case Manager Direct Dial No. 513-564-7034

 
 Case 2:13-cv-11296-PDB-RSW ECF No. 37 filed 02/04/15 PageID.782 Page 1 of 3

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MERSINO MANAGEMENT COMPANY, et al.
Plaintiffs,
v.

Case No. 13-cv-11296
Hon. Paul D. Borman
Magistrate Judge R. Steven Whalen

SYLVIA M. BURWELL, et al.,

Defendants. ___________________________________/

INJUNCTION AND JUDGMENT For the reasons stated in the Parties’ Joint Motion (ECF No. 36), it is hereby ORDERED that this cause be re-opened, and In light of the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), it is hereby ORDERED that defendants, their employees, agents, and successors in office are enjoined (a) from enforcing
(1) the “June 30, 2014 Contraceptive Coverage Requirement,” defined here to include those provisions of federal law in existence on June 30, 2014, when the Supreme Court decided Hobby Lobby, that require

Case 2:13-cv-11296-PDB-RSW ECF No. 37 filed 02/04/15 PageID.783 Page 2 of 3
plaintiff Mersino Management Company to provide its employees with health coverage for contraceptive methods, sterilization procedures, and related patient education and counseling to which plaintiffs object on religious grounds, e.g., 26 C.F.R. § 54.98152713(a)(1)(iv); 29 C.F.R. § 2590.715-2713(a)(1)(iv); 45 C.F.R. § 147.130(a)(1)(iv); and (2) any penalties, fines, or assessments for noncompliance with the June 30, 2014 Contraceptive Coverage Requirement, including those found in 26 U.S.C. § 4980D, and 29 U.S.C. §§ 1132 and 1185d; and (b) from taking any other actions based on noncompliance with the June 30, 2014 Contraceptive Coverage Requirement against plaintiff Mersino Management Company, its employee health plan(s), the group health coverage provided in connection with such plan(s), and/or Mersino Management Company’s health insurance issuers and/or third-party administrators with respect to Mersino Management Company’s health plan(s); and it is further ORDERED that judgment is entered in favor of plaintiffs and against defendants on plaintiffs’ claim under the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et seq.; and it is further
2

Case 2:13-cv-11296-PDB-RSW ECF No. 37 filed 02/04/15 PageID.784 Page 3 of 3
ORDERED that all other claims against Defendants are DISMISSED; and it is further
ORDERED that the Parties will meet and confer to reach agreement on attorneys’ fees and costs. The Parties will file a joint status report, including a recommendation for further proceedings, by no later than March 2, 2015. If there is no resolution of the attorneys’ fees and costs matter, Plaintiffs may file a motion for attorneys’ fees and costs within thirty days of March 2, 2015, pursuant to Federal Rule of Civil Procedure 54; and it is further
ORDERED that this injunction and Judgment does not apply with respect to any changes in statute or regulation that are enacted or promulgated after this date, and nothing herein prevents plaintiffs from filing a new civil action to challenge any such future changes.
s/Paul D. Borman PAUL D. BORMAN UNITED STATES DISTRICT JUDGE Dated: February 4, 2015
CERTIFICATE OF SERVICE The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on February 4, 2015.
s/Deborah Tofil Deborah Tofil Case Manager (313) 234-5122
3

 
 11/4/2017

CM/ECF - U.S. District Court:mied
U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:13-cv-11296-PDB-RSW

CLOSED

Mersino Management Company et al v. Sebelius et al Assigned to: District Judge Paul D. Borman Referred to: Magistrate Judge R. Steven Whalen Case in other court: U.S. Court of Appeals - Sixth Circuit, 13-
01944 Cause: 42:1983 Civil Rights Act

Date Filed: 03/22/2013 Date Terminated: 02/04/2015 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff Mersino Management Company

represented by Erin E. Mersino Great Lakes Justice Center 5600 W. Mount Hope Highway Lansing, MI 48917 517-322-3207 Fax: 517-322-3206 Email: erin@greatlakesjc.org ATTORNEY TO BE NOTICED

Plaintiff Rodney A. Mersino

represented by Erin E. Mersino (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Karen A. Mersino

represented by Erin E. Mersino (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Kathleen Sebelius

represented by Ben Berwick U.S. Department of Justice Civil Division 20 Massachusetts Avenue, N.W. Room 7306 Washington, DC 20530 202-305-8573 Email: Benjamin.L.Berwick@usdoj.gov ATTORNEY TO BE NOTICED

https://ecf.mied.uscourts.gov/cgi-bin/DktRpt.pl?873238594384509-L_1_0-1

Bradley P. Humphreys U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW Room 7219
1/6

11/4/2017
Defendant United States Department of Health and Human Services

CM/ECF - U.S. District Court:mied
Washington, DC 20530 202-514-3367 Fax: 202-616-8470 ATTORNEY TO BE NOTICED
represented by Ben Berwick (See above for address) ATTORNEY TO BE NOTICED

Defendant Seth D. Harris

Bradley P. Humphreys (See above for address) ATTORNEY TO BE NOTICED
represented by Ben Berwick (See above for address) ATTORNEY TO BE NOTICED

Defendant United States Department of Labor

Bradley P. Humphreys (See above for address) ATTORNEY TO BE NOTICED
represented by Ben Berwick (See above for address) ATTORNEY TO BE NOTICED

Defendant Jack Lew

Bradley P. Humphreys (See above for address) ATTORNEY TO BE NOTICED
represented by Ben Berwick (See above for address) ATTORNEY TO BE NOTICED

Defendant United States Department of Treasury

Bradley P. Humphreys (See above for address) ATTORNEY TO BE NOTICED
represented by Ben Berwick (See above for address) ATTORNEY TO BE NOTICED

Amicus
American Civil Liberties Union of Michigan
https://ecf.mied.uscourts.gov/cgi-bin/DktRpt.pl?873238594384509-L_1_0-1

Bradley P. Humphreys (See above for address) ATTORNEY TO BE NOTICED
represented by Michael J. Steinberg American Civil Liberties Union Fund of
2/6

11/4/2017
Amicus American Civil Liberties Union

CM/ECF - U.S. District Court:mied
Michigan 2966 Woodward Avenue Detroit, MI 48201 313-578-6814 Email: msteinberg@aclumich.org ATTORNEY TO BE NOTICED
represented by Daniel Mach American Civil Liberties Union 915 15th St., NW Washington, DC 20005 202-675-2330 Email: dmach@aclu.org ATTORNEY TO BE NOTICED
Jennifer Lee American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 212-549-2601 Fax: 212-549-2651 Email: jlee@aclu.org ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) ATTORNEY TO BE NOTICED

Date Filed 03/22/2013
03/25/2013 03/26/2013 03/26/2013 04/08/2013
05/01/2013 05/07/2013

# Docket Text
1 COMPLAINT ﬁled by All Plaintiffs against All Defendants. Plaintiff requests summons issued. Receipt No: 0645-4007767 - Fee: $ 350. County of 1st Plaintiff: Genesee - County Where Action Arose: Genesee - County of 1st Defendant: USA. [Previously dismissed case: No] [Possible companion case(s): None] (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit Exhibit 1) (Mersino, Erin) (Entered: 03/22/2013)
2 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by All Plaintiffs (Mersino, Erin) (Entered: 03/25/2013)
3 SUMMONS Issued for the United States Attorney and the Ofﬁce of the Attorney General. (TMcg) (Entered: 03/26/2013)
4 SUMMONS Issued for * All Defendants * (TMcg) (Entered: 03/26/2013)
5 NOTICE of Appearance by Bradley P. Humphreys on behalf of Seth D. Harris, Jack Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury. (Humphreys, Bradley) (Entered: 04/08/2013)
6 CERTIFICATE OF SERVICE by All Plaintiffs for Proof of Service for Summons and Complaint (Mersino, Erin) (Entered: 05/01/2013)
7 MOTION for Leave to File Excess Pages by All Plaintiffs. (Mersino, Erin) (Entered: 05/07/2013)

https://ecf.mied.uscourts.gov/cgi-bin/DktRpt.pl?873238594384509-L_1_0-1

3/6

11/4/2017
05/07/2013
05/08/2013 05/09/2013 05/14/2013 05/14/2013 05/17/2013 05/17/2013 05/20/2013 05/21/2013 05/21/2013 05/23/2013 05/23/2013
05/23/2013 05/23/2013

CM/ECF - U.S. District Court:mied
8 MOTION for Temporary Restraining Order and Preliminary Injunction by All Plaintiffs. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4) (Mersino, Erin) (Main Document 8 replaced on 5/9/2013) (KKra). Modiﬁed on 5/9/2013 (KKra). [ATTACHED BRIEF HAS BEEN STRICKEN PER COURT ORDER DATED 5/8/13] (Entered: 05/07/2013)
9 ORDER Denying 7 Motion for Leave to File Excess Pages, Striking Plaintiffs' Brief, and Requiring Plaintiffs to Submit a Conforming Twenty-Page Brief. Signed by District Judge Paul D. Borman. (KKra) (Entered: 05/09/2013)
10 MOTION for Temporary Restraining Order by All Plaintiffs. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit Ex. 1, # 3 Exhibit Ex. 2, # 4 Exhibit Ex. 3, # 5 Exhibit Ex. 4) (Mersino, Erin) (Entered: 05/09/2013)
Minute Entry - Telephonic Status Conference held on 5/14/2013 before District Judge Paul D. Borman. (Court Reporter Leann Lizza) (DTof) (Entered: 05/14/2013)
11 NOTICE OF HEARING on 10 MOTION for Temporary Restraining Order . Responses due by 5/23/2013 Replies due by 5/24/2013 Motion Hearing set for 5/29/2013 03:30 PM before District Judge Paul D. Borman (DTof) (Entered: 05/14/2013)
12 MOTION for Extension of Time to File Answer or motion in response to plaintiffs' Complaint by All Defendants. (Humphreys, Bradley) (Entered: 05/17/2013)
13 NOTICE by All Parties re 10 MOTION for Temporary Restraining Order That the Parties Consider Oral Argument To Be Unnecessary (Humphreys, Bradley) (Entered: 05/17/2013)
14 ORDER granting 12 Motion for Extension of Time to Answer ﬁled by All Defendants - see order for deadline. Signed by District Judge Paul D. Borman. (DTof) (Entered: 05/20/2013)
Set Deadlines/Hearings: TELEPHONIC Status Conference set for 5/21/2013 01:30 PM before District Judge Paul D. Borman. *Plaintiff initiates* (DTof) (Entered: 05/21/2013)
Minute Entry - Telephonic Status Conference held on 5/21/2013 before District Judge Paul D. Borman. (Court Reporter Leann Lizza) (DTof) (Entered: 05/29/2013)
15 ORDER Conﬁrming Telephone Conference Order of May 21, 2013. Signed by District Judge Paul D. Borman. (DTof) (Entered: 05/23/2013)
16 RESPONSE to 10 MOTION for Temporary Restraining Order and Preliminary Injunction ﬁled by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit Autocam Corp. v. Sebelius (6th Cir.), # 3 Exhibit Autocam Corp. v. Sebelius (6th Cir. - Denying Motion for Reconsideration), # 4 Exhibit Autocam Corp. v. Sebelius (W.D. Mich.), # 5 Exhibit Hobby Lobby v. Sebelius (10th Cir.), # 6 Exhibit Conestoga Wood Specialities Corp. v. Sebelius (3d Cir.), # 7 Exhibit Conestoga Wood Specialities Corp. v. Sebelius (E.D. Pa.), # 8 Exhibit Eden Foods v. Sebelius (E.D. Mich.), # 9 Exhibit Annex Med., Inc. v. Sebelius (D. Minn.), # 10 Exhibit Annex Med., Inc. v. Sebelius (D. Minn. - Denying Motion for an Injunction Pending Appeal), # 11 Exhibit Grote Indus., Inc. v. Sebelius (S.D. Ind.), # 12 Exhibit Grote Indus., Inc. v. Sebelius (S.D. Ind. - Denying Motion for Reconsideration), # 13 Exhibit Korte v. U.S. Dep't of Health and Human Servs (S.D. Ill.), # 14 Exhibit Gilardi v. Sebelius (D.D.C.)) (Humphreys, Bradley) (Entered: 05/23/2013)
17 MOTION for Leave to File Amicus Curiae Brief by American Civil Liberties Union of Michigan, American Civil Liberties Union. (Attachments: # 1 Exhibit A, Amicus Curiae Brief) (Steinberg, Michael) (Entered: 05/23/2013)
18 NOTICE of Appearance by Michael J. Steinberg on behalf of American Civil Liberties Union of Michigan. (Steinberg, Michael) (Entered: 05/23/2013)

https://ecf.mied.uscourts.gov/cgi-bin/DktRpt.pl?873238594384509-L_1_0-1

4/6

11/4/2017
05/24/2013

CM/ECF - U.S. District Court:mied
19 REPLY to Response re 10 MOTION for Temporary Restraining Order and Preliminary Injunction ﬁled by All Plaintiffs. (Mersino, Erin) (Entered: 05/24/2013)

05/24/2013

20 EXHIBIT Supplementary Exhibits in Support of Plaintiffs' Motion for a Temporary Restraining Order and Preliminary Injunction re 15 Order by All Plaintiffs (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3) (Mersino, Erin) (Entered: 05/24/2013)

05/29/2013

Minute Entry - Motion Hearing held on 5/29/2013 re 10 MOTION for Temporary Restraining Order ﬁled by Rodney A. Mersino, Karen A. Mersino, Mersino Management Company before District Judge Paul D. Borman. Disposition: Taken under advisement(Court Reporter Leann Lizza) (DTof) (Entered: 05/29/2013)

05/29/2013

TEXT-ONLY ORDER GRANTING 17 MOTION for Leave to File Amicus Curiae Brief ﬁled by American Civil Liberties Union, American Civil Liberties Union of Michigan AND DEEMING BRIEF AS FILED. Signed by District Judge Paul D. Borman. (DTof) (Entered: 05/29/2013)

05/30/2013

21 RESPONSE to 17 MOTION for Leave to File Amicus Curiae Brief ﬁled by All Plaintiffs. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit Exhibit A) (Mersino, Erin) [DOCKET ERROR-WRONG IMAGE UPLOADED WILL REFILE] Modiﬁed on 5/30/2013 (TMcg). (Entered: 05/30/2013)

05/30/2013 22 NOTICE of Appearance by Daniel Mach on behalf of American Civil Liberties Union, American Civil Liberties Union of Michigan. (Mach, Daniel) (Entered: 05/30/2013)

05/30/2013

23 EXHIBIT Supplementary Exhibit re 10 MOTION for Temporary Restraining Order by All Plaintiffs (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit Exhibit 1) (Mersino, Erin) (Entered: 05/30/2013)

05/30/2013

24 RESPONSE to 17 MOTION for Leave to File Amicus Curiae Brief ﬁled by All Plaintiffs. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit Exhibit A) (Mersino, Erin) (Entered: 05/30/2013)

06/04/2013 25 ORDER Requiring Plaintiffs to Comply with Court's May 29, 2013 Order. Signed by District Judge Paul D. Borman. (DTof) (Entered: 06/04/2013)

06/05/2013 26 EXHIBIT re 25 Order by All Plaintiffs (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit Exhibit 1) (Mersino, Erin) (Entered: 06/05/2013)

06/07/2013 27 NOTICE of Appearance by Jennifer Lee on behalf of American Civil Liberties Union, American Civil Liberties Union of Michigan. (Lee, Jennifer) (Entered: 06/07/2013)

07/01/2013

28 NOTICE by All Plaintiffs Notice of Supplemental Authority (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3) (Mersino, Erin) (Entered: 07/01/2013)

07/11/2013

29 OPINION AND ORDER denying 10 Motion for TRO and Preliminary Injunction. Signed by District Judge Paul D. Borman. (DTof) (Entered: 07/11/2013)

07/11/2013

30 NOTICE OF APPEAL by All Plaintiffs re 29 Order on Motion for TRO. Receipt No: 0645-4187291 - Fee: $ 455 - Fee Status: Fee Paid. (Mersino, Erin) (Entered: 07/11/2013)

07/12/2013 31 Certiﬁcate of Service re 30 Notice of Appeal. (DWor) (Entered: 07/12/2013)

07/17/2013

32 Joint MOTION to Stay District Court Proceedings Pending Appeal by Seth D. Harris, Jack Lew, Karen A. Mersino, Rodney A. Mersino, Mersino Management Company, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury. (Humphreys, Bradley) (Entered: 07/17/2013)

https://ecf.mied.uscourts.gov/cgi-bin/DktRpt.pl?873238594384509-L_1_0-1

5/6

11/4/2017
07/31/2013 09/24/2013
07/09/2014 01/28/2015 02/03/2015 02/04/2015 03/13/2015 03/23/2015 03/27/2015 03/31/2015 05/12/2015 05/12/2015

CM/ECF - U.S. District Court:mied
33 ORDER granting 32 Motion to Stay. Signed by District Judge Paul D. Borman. (DTof) (Entered: 07/31/2013)
34 TRANSCRIPT of Telephone Conference held on 05/21/2013. (Court Reporter: Leann S. Lizza) (Number of Pages: 15) The parties have 21 days to ﬁle with the court and Court Reporter a Redaction Request of this transcript. If no request is ﬁled, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 10/15/2013. Redacted Transcript Deadline set for 10/25/2013. Release of Transcript Restriction set for 12/23/2013. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Lizza, L.) (Entered: 09/24/2013)
35 ORDER from U.S. Court of Appeals - Sixth Circuit re 30 Notice of Appeal ﬁled by Rodney A. Mersino, Karen A. Mersino, Mersino Management Company [Appeal Case Number 13-1944] (KKra) (Entered: 07/18/2014)
38 ORDER from U.S. Court of Appeals - Sixth Circuit re 30 Notice of Appeal ﬁled by Rodney A. Mersino, Karen A. Mersino, Mersino Management Company [Appeal Case Number 13-1944] (KCla) (Entered: 02/12/2015)
36 Joint MOTION to Reopen Case and Enter Judgment by All Defendants. (Humphreys, Bradley) (Entered: 02/03/2015)
37 INJUNCTION AND JUDGMENT - Signed by District Judge Paul D. Borman. (DTof) (Entered: 02/04/2015)
39 NOTICE by All Plaintiffs Joint Status Report (Mersino, Erin) (Entered: 03/13/2015)
42 MANDATE from U.S. Court of Appeals - Sixth Circuit as to 30 Notice of Appeal ﬁled by Rodney A. Mersino, Karen A. Mersino, Mersino Management Company [Appeal Case Number 13-1944] (KCla) (Entered: 04/01/2015)
40 NOTICE of Appearance by Ben Berwick on behalf of All Defendants. (Berwick, Ben) (Entered: 03/27/2015)
41 STIPULATED ORDER re 39 Notice (Other) ﬁled by Rodney A. Mersino, Karen A. Mersino, Mersino Management Company. Signed by District Judge Paul D. Borman. (DTof) (Entered: 03/31/2015)
43 NOTICE by All Plaintiffs Joint Status Report (Mersino, Erin) (Entered: 05/12/2015)
44 NOTICE by All Plaintiffs Joint Status Report (Mersino, Erin) (Entered: 05/12/2015)

PACER Service Center

Transaction Receipt

PACER Login:
Description:
Billable Pages:

11/04/2017 19:30:51

hs0328:2563377:0 Client Code:

Docket Report

Search Criteria:

6

Cost:

2:13-cv-11296-PDBRSW
0.60

https://ecf.mied.uscourts.gov/cgi-bin/DktRpt.pl?873238594384509-L_1_0-1

6/6