Case: 1:13-cv-08910 Document #: 1 Filed: 12/13/13 Page 1 of 48 PageID #:1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

WHEATON COLLEGE,
Plaintiff,
v.
KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH AND HUMANSERVICES; THOMAS PEREZ, Secretary of the United States Department of Labor; UNITED STATES DEPARTMENT OF LABOR; JACOB LEW, Secretary of the United States Department of the Treasury; and UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants.

Civ. Action No. ___________ Jury Demanded

COMPLAINT Comes now Plaintiff, Wheaton College, by and through its attorneys, and states as follows:
NATURE OF THE ACTION 1. This is a challenge to regulations issued under the 2010 “Affordable Care Act” that force employee and student health insurance plans to provide free coverage of contraceptives, sterilizations, and drugs and devices that cause early abortions (the “Final Mandate”).

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2. Plaintiff, Wheaton College (“Wheaton”), is a Christian liberal arts college located in Wheaton, Illinois. Wheaton’s religious beliefs forbid it from participating in, providing access to, paying for, designating others to pay for, training others to engage in, or otherwise supporting abortion. Wheaton is among the many American religious organizations that hold these beliefs.
3. In light of these religious beliefs, Wheaton cannot participate in the government’s regulatory scheme to promote, encourage, and subsidize the use of drugs and devices that cause abortions. Under the Final Mandate, however, Wheaton faces millions of dollars in fines for this religious exercise.
4. Defendants have exempted thousands of plans, covering tens of millions of employees, from the Final Mandate. These exemptions have been granted for a wide variety of reasons, from the purely secular exemption for plans in existence before a certain date (“grandfathered plans”) to a narrow religious exemption for certain “religious employers.”
5. Despite its obvious religious nature, Wheaton does not qualify for any exemptions. While “religious employers” are exempted, Defendants have limited that exemption to protect only “churches, their integrated auxiliaries, and conventions or associations of churches” and “the exclusively religious activities of any religious order.” That is because, in the eyes of the government, Wheaton’s work educating students “For Christ and His Kingdom” is not an “exclusively religious activity.”
6. The regulations do offer Wheaton and other non-exempt religious organizations what Defendants have labeled an “accommodation.” But the “accommodation” still requires Wheaton to play a central role in the government’s scheme, because it must designate an agent to pay for the objectionable services on Wheaton’s behalf, and it has to take steps to trigger and

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facilitate that coverage. Wheaton cannot take these actions to facilitate this coverage without violating its religious beliefs.
7. The supposed “accommodation” also continues to treat Wheaton as a second-class religious organization, not entitled to the same religious freedom rights as other religious organizations, including any religious schools that are “integrated auxiliaries” of churches.
8. The “accommodation” also creates administrative hurdles and other difficulties for Wheaton, forcing it to seek out and contract with companies willing to provide the very drugs and services it speaks out against.
9. If Wheaton does not compromise its religious convictions and comply with the regulations, however, it faces severe penalties that could exceed $25.7 million each year.
10. By placing Wheaton in this impossible position, Defendants have violated the Religious Freedom Restoration Act, as well as the Free Exercise, Establishment, and Free Speech Clauses of the First Amendment of the United States Constitution, The Due Process Clause of the Fifth Amendment, and the Administrative Procedure Act.
11. Wheaton therefore respectfully requests declaratory and permanent injunctive relief.
JURISDICTION AND VENUE 12. The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and § 1361. This action arises under the Constitution and laws of the United States. This Court has jurisdiction to render declaratory and injunctive relief under 28 U.S.C. §§ 2201 and 2202, and 42 U.S.C. § 2000bb-1.

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13. Venue lies in this district pursuant to 28 U.S.C. § 1391(e). A substantial part of the events or omissions giving rise to the claim occurred in this district, and Plaintiff resides in this district.
IDENTIFICATION OF PARTIES 14. Plaintiff Wheaton College is a liberal arts college in Wheaton, Illinois. Founded in 1860 by abolitionist Jonathan Blanchard, Wheaton’s mission is to “serve[] Jesus Christ and advance[] his kingdom through excellence in liberal arts and graduate programs that educate the whole person to build the church and benefit society worldwide.” Wheaton’s motto is “For Christ and His Kingdom.” 15. Defendants are appointed officials of the United States government and the United States governmental agencies responsible for issuing the Mandate. 16. Defendant Kathleen Sebelius is the Secretary of the United States Department of Health and Human Services (“HHS”). In this capacity, she has responsibility for the operation and management of HHS. Sebelius is sued in her official capacity only. 17. Defendant HHS is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate. 18. Defendant Thomas Perez is the Secretary of the United States Department of Labor. In this capacity, he has responsibility for the operation and management of the Department of Labor. Perez is sued in his official capacity only. 19. Defendant Department of Labor is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.

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20. Defendant Jacob Lew is the Secretary of the Department of the Treasury. In this capacity, he has responsibility for the operation and management of the Department of the Treasury. Lew is sued in his official capacity only.
21. Defendant Department of Treasury is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
FACTUAL ALLEGATIONS I. Wheaton’s Religious Beliefs and Practices Related to Insurance for Abortion
22. Wheaton is a liberal arts college located in Wheaton, Illinois. It was founded in 1860 by abolitionist Jonathan Blanchard.
23. Today, Wheaton “is an institution of higher learning, a rigorous academic community that takes seriously the life of the mind.” See http://www.wheaton.edu/AboutWheaton/Community-Covenant. Wheaton offers 59 undergraduate degree programs and 22 graduate degree programs, including five doctoral programs.
24. Faith is central to the education mission of Wheaton. Wheaton aspires “to live, work, serve, and worship together as an educational community centered around the Lord Jesus Christ.” Wheaton College, Community Covenant, http://www.wheaton.edu/aboutwheaton/community-covenant.
25. Wheaton’s purpose is expressed in its mission statement: “Wheaton College serves Jesus Christ and advances his kingdom through excellence in liberal arts and graduate programs that educate the whole person to build the church and benefit society worldwide.”
26. Wheaton’s motto is “For Christ and His Kingdom.” 27. In order to further its mission, Wheaton has a longstanding conviction that appropriate “institutional standards” help to “foster the kind of campus atmosphere most

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conductive to becoming the Christian community of living, learning, and serving that Wheaton College aspires to be.”
28. Each year, all Wheaton students and full-time employees voluntarily commit themselves to this community by signing Wheaton’s Community Covenant.
29. In addition to signing the Community Covenant, Wheaton’s Board of Trustees, faculty, and staff annually reaffirm Wheaton’s doctrinal statement, which provides a summary of biblical doctrine that is consonant with Evangelical Christianity. See http://www.wheaton.edu/About-Wheaton/Statement-of-Faith-and-Educational-Purpose.
30. Wheaton’s Community Covenant recognizes that Scripture condemns the taking of innocent life. (Wheaton College, Community Covenant, http://www.wheaton.edu/aboutwheaton/community-covenant.)
31. Wheaton holds religious beliefs that include traditional Christian teachings on the sanctity of life. Wheaton believes and teaches 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. Wheaton therefore believes and teaches that abortion ends a human life and is a sin.
32. Wheaton is registered as a tax-exempt organization under 26 U.S.C. § 501(c)(3). 33. Wheaton is not a church, an integrated auxiliary of a church, or a convention or association of churches as defined by 26 U.S.C. § 6033(a)(3)(A)(i). 34. Wheaton is not a religious order as defined by 26 U.S.C. § 6033(a)(3)(A)(iii). 35. Wheaton is not a church or a convention or association of churches as defined by 26 U.S.C. § 414(e). 36. Wheaton has about 2,400 undergraduate and 600 graduate students.

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37. Wheaton has about 709 full-time and 161 part-time employees as of December 2, 2013.
38. As part of its religious convictions, Wheaton promotes the well-being and health of its students and employees. This includes provision of generous health services and health insurance for its students and employees.
39. Wheaton’s religious beliefs prohibit it from deliberately providing insurance coverage for drugs, procedures, or services inconsistent with its faith, in particular abortioninducing drugs, abortion procedures, and related services.
40. It is similarly a violation of Wheaton’s religious beliefs to deliberately provide health insurance that would facilitate access to abortion-causing drugs, abortion procedures, and related services, even if those items were paid for by an insurer or a plan administrator and not by Wheaton.
41. Wheaton has no religious objection to providing coverage for contraceptive drugs and devices that prevent conception (as opposed to interfering with the continued survival of a human embryo).
42. Wheaton’s employees and students choose to work at or attend Wheaton because they share its religious beliefs and wish to help Wheaton further its mission. Wheaton would violate their implicit trust in the organization and detrimentally alter its relationship with them if it were to violate its religious beliefs regarding abortion.
43. Wheaton has expended significant resources working with its insurers and plan administrators to ensure that its health insurance policies reflect Wheaton’s religious beliefs.

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44. On September 27, 2011, Wheaton submitted public comments on the Interim Final Rule on Preventative Services published on August 3, 2011 (76 Fed. Reg. 46621).1 Wheaton’s comments expressed its concern that the interim final rule failed to recognize it as a religious employer and that the rule violates Wheaton’s rights of conscience.
45. On June 19, 2012, Wheaton submitted public comments on the Advance Notice of Proposed Rulemaking on Preventative Services published on March 21, 2012 (77 Fed. Reg. 16501). Wheaton’s comments reiterated its concerns about the interim final rule, particularly Defendants’ refusal to provide it and similar religious employers with the same exemption afforded to churches.
46. The plan year for Wheaton’s employee insurance plans began on July 1, 2013 and a new plan year will begin on July 1, 2014.
47. Wheaton made certain changes to its employee insurance plans effective April 1, 2012, that render Wheaton healthcare plans ineligible for grandfathered status. See 45 C.F.R. § 147.140(a)(1)(i), 26 C.F.R. § 54.9815-1251T(a)(1)(i); 29 C.F.R. § 2590.715-1251(a)(1)(i). In particular, Wheaton removed coverage for prescription drugs from two of its employee insurance plans and created new drug benefit plans for employees. None of these plans are grandfathered. II. The Affordable Care Act and Preventive Care Mandate
48. 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), and the Health Care and Education Reconciliation Act, Pub. L. 111-152 (March 30, 2010), collectively known as the “Affordable Care Act.”
1 Letter from President Philip G. Ryken, President, Wheaton College, to IRS Commissioner Douglas H. Shulman (Sept. 27, 2011), available at http://www.regulations.gov/#!documentDetail;D=IRS2010-0017-0975.

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49. The Affordable Care Act regulates the national health insurance market by directly regulating “group health plans” and “health insurance issuers.”
50. One provision of the Act mandates that any “group health plan” or “health insurance issuer offering group or individual health insurance coverage” must provide coverage for certain preventive care services. 42 U.S.C. § 300gg-13(a).
51. The services required to be covered include medications, screenings, and counseling given an “A” or “B” rating by the United States Preventive Services Task Force;2 immunizations recommended by the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention; and “preventive care and screenings” specific to infants, children, adolescents, and women, as to be “provided for in comprehensive guidelines supported by the Health Resources and Services Administration.” 42 U.S.C. § 300gg-13(a)(1)(4).
52. The statute specifies that all of these services must be provided without “any cost sharing.” 42 U.S.C. § 300gg-13(a).

2 The list of services that currently have an “A” or “B” rating include medications like aspirin for preventing cardiovascular disease, vitamin D, and folic acid; screenings for a wide range of conditions such as depression, certain cancers and sexually-transmitted diseases, intimate partner violence, obesity, and osteoporosis; and various counseling services, including for breastfeeding, sexually-transmitted diseases, smoking, obesity, healthy dieting, cancer, and so forth. See U.S. Preventive Services Task Force, USPSTF A and B Recommendations, http://www.uspreventiveservicestaskforce.org/uspstf/uspsabrecs.htm (last visited Dec. 2, 2013) (Ex. A); see also 75 Fed. Reg. 41726, 41740 (2010).

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The Interim Final Rule 53. On July 19, 2010, HHS3 published an interim final rule promulgating directives concerning the Affordable Care Act’s requirement for coverage of preventive services without cost sharing. 75 Fed. Reg. 41726, 41728 (2010). 54. The interim final rule was enacted without prior notice of rulemaking or opportunity for public comment, because Defendants determined for themselves that “it would be impracticable and contrary to the public interest to delay putting the provisions . . . in place until a full public notice and comment process was completed.” 75 Fed. Reg. at 41730. 55. Although Defendants suggested in the Interim Final Rule that they would solicit public comments after implementation, they stressed that “provisions of the Affordable Care Act protect significant rights” and therefore it was expedient that “participants, beneficiaries, insureds, plan sponsors, and issuers have certainty about their rights and responsibilities.” Id. 56. Defendants stated they would later “provide the public with an opportunity for comment, but without delaying the effective date of the regulations,” demonstrating their intent to impose the regulations regardless of the legal flaws or general opposition that might be manifest in public comments. Id. 57. In addition to reiterating the Affordable Care Act’s preventive services coverage requirements, the Interim Final Rule provided further guidance concerning the Act’s restriction on cost sharing. 58. The Interim Final Rule made clear that “cost sharing” refers to “out-of-pocket” expenses for plan participants and beneficiaries. 75 Fed. Reg. at 41730.

3 For ease of reading, references to “HHS” in this Complaint refer to all Defendants, unless context indicates otherwise.

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59. The Interim Final Rule acknowledged that, without cost sharing, expenses “previously paid out-of-pocket” would “now be covered by group health plans and issuers” and that those expenses would, in turn, result in “higher average premiums for all enrollees.” Id.; see also id. at 41737 (“Such a transfer of costs could be expected to lead to an increase in premiums.”).
60. In other words, the prohibition on cost-sharing was simply a way “to distribute the cost of preventive services more equitably across the broad insured population.” 75 Fed. Reg. at 41730.
61. After the Interim Final Rule was issued, numerous commenters warned against the potential conscience implications of requiring religious individuals and organizations to include certain kinds of services—specifically contraception, sterilization, and abortion services—in their health care plans.
62. HHS directed a private health policy organization, the Institute of Medicine (IOM), to make recommendations regarding which drugs, procedures, and services should be considered in comprehensive guidelines for preventive care for women.
63. IOM was not tasked with making insurance coverage recommendations and explicitly excluded cost considerations and other considerations relevant to coverage recommendations from its determinations regarding effective preventive care for women.
64. In developing its guidelines, IOM invited a select number of groups to make presentations on the preventive care that should be 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.

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65. No religious groups or other groups that opposed government-mandated coverage of contraception, sterilization, abortion, and related education and counseling were among the invited presenters.
66. On July 19, 2011, the IOM published its preventive care guidelines for women, including a recommendation that preventive services include all “Food and Drug Administration approved contraceptive methods [and] sterilization procedures.” Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps, at 102-10 and Recommendation 5.5 (2011).
67. FDA-approved contraceptive methods include birth-control pills; prescription contraceptive devices such as IUDs; Plan B (also known as the “morning-after pill”); ulipristal (also known as “ella” or the “week-after pill”); and other drugs, devices, and procedures.
68. Some of these drugs and devices—including the “emergency contraceptives” Plan B, ella, and certain IUDs—are known abortifacients, in that they can cause the death of an embryo by preventing it from implanting in the wall of the uterus.
69. Indeed, the FDA’s own Birth Control guide states that both Plan B and ella can work by “preventing attachment (implantation) to the womb (uterus).”4
70. Although it mentioned emergency contraceptives in passing, the IOM Report included no separate analysis of known abortifacients like Plan B and ella. See generally Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps, at 102-10 and Recommendation 5.5 (2011).
71. The conditions under which the IOM Report was prepared prompted one member of the drafting committee to file a dissent, in which he stated that “the committee process for evaluation of the evidence lacked transparency and was largely subject to the preferences of the
4 FDA, Birth Control: Medicines to Help You, http://www.fda.gov/ForConsumers/ ByAudience/ForWomen/FreePublications/ucm313215.htm (last visited Dec. 2, 2013) (Ex. B).

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committee’s composition. Troublingly, the process tended to result in a mix of objective and subjective determinations filtered through a lens of advocacy.” Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps, at 232-233 (2011). The dissent deemed the evidence evaluation process a “fatal flaw” and concluded that “the committee erred [in] their zeal to recommend something despite the time constraints and a far from perfect methodology” and “failed to demonstrate [transparency and strict objectivity] in the Report.” Id.
72. On August 1, 2011, thirteen days after IOM issued its recommendations, HHS’s Health Resources and Services Administration (“HRSA”) issued guidelines adopting them in full.5
The “Religious Employers” Exemption 73. That same day, HHS promulgated an additional Interim Final Rule. 76 Fed. Reg. 46621 (published Aug. 3, 2011). 74. This Second Interim Final Rule granted HRSA “discretion to exempt certain religious employers from the Guidelines where contraceptive services are concerned.” 76 Fed. Reg. 46621, 46623 (emphasis added). The term “religious employer” was restrictively defined as one that (1) has as its purpose the “inculcation of religious values”; (2) “primarily employs persons who share the religious tenets of the organization”; (3) “serves primarily persons who share the religious tenets of the organization”; and (4) “is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 76 Fed. Reg. at 46626.

5 HRSA, Women’s Preventive Services Guidelines, http://www.hrsa.gov/ womensguidelines (last visited Dec. 2, 2013) (Ex. C).

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75. The fourth of these requirements refers to “churches, their integrated auxiliaries, and conventions or associations of churches” and the “exclusively religious activities of any religious order.” 26 U.S.C.A. § 6033.
76. Thus, the “religious employers” exemption was severely limited to formal churches, their integrated auxiliaries, and religious orders whose purpose is to inculcate faith and that hire and serve primarily people of their own faith tradition.
77. HRSA exercised its discretion to grant an exemption for religious employers via a footnote on its website listing the Women’s Preventive Services Guidelines. The footnote states that “guidelines concerning contraceptive methods and counseling described above do not apply to women who are participants or beneficiaries in group health plans sponsored by religious employers.”6
78. Although religious organizations like Wheaton share the same religious beliefs and concerns as objecting churches, their integrated auxiliaries, and objecting religious orders, HHS deliberately ignored the regulation’s impact on their religious liberty, stating that the exemption sought only “to provide for a religious accommodation that respects the unique relationship between a house of worship and its employees in ministerial positions.” 76 Fed. Reg. at 46623.
79. Thus, thousands of religious organizations that cannot comply with the mandate for religious reasons were excluded from the “religious employers” exemption.
80. Like the original Interim Final Rule, the Second Interim Final Rule was made effective immediately, without prior notice or opportunity for public comment.

6 HRSA, Women’s Preventive Services Guidelines, http://www.hrsa.gov/ womensguidelines (Ex. C).

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81. Defendants acknowledged that “while a general notice of proposed rulemaking and an opportunity for public comment is generally required before promulgation of regulations,” they had “good cause” to conclude that public comment was “impracticable, unnecessary, or contrary to the public interest” in this instance. 76 Fed. Reg. at 46624.
82. Upon information and belief, after the Second Interim Final Rule was put into effect, over 100,000 comments were submitted opposing the narrow scope of the “religious employers” exemption and protesting the contraception mandate’s gross infringement on the rights of religious individuals and organizations.
83. HHS did not take into account the concerns of religious organizations in the comments submitted before the Second Interim Rule was issued.
84. Instead the Second Interim Rule was unresponsive to the concerns, including claims of statutory and constitutional conscience rights, stated in the comments submitted by religious organizations.
The Safe Harbor 85. The public outcry for a broader religious employer exemption continued for many months and, on January 20, 2012, HHS issued a press release acknowledging “the important concerns some have raised about religious liberty” and stating that religious objectors would be “provided an additional year . . . to comply with the new law.”7 86. On February 10, 2012, HHS formally announced a “safe harbor” for non-exempt nonprofit religious organizations that objected to the Mandate. See HHS Center for Consumer Information and Insurance Oversight, Guidance on the Temporary Enforcement Safe Harbor for Certain Employers (Feb. 10, 2012); see also HHS Center for Consumer Information and 7 Press Release, A Statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius (Jan. 20, 2012), http://www.hhs.gov/news/press /2012pres/01/20120120a.html (Ex. D).

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Insurance Oversight, Guidance on the Temporary Enforcement Safe Harbor for Certain Employers (Aug. 15, 2012) (changing the safe harbor eligibility criteria).
87. Under the safe harbor, HHS agreed it would not take any enforcement action against an eligible organization during the safe harbor, which would remain in effect until the first plan year beginning on or after August 1, 2013. HHS later extended the safe harbor to the first plan year beginning on or after January 1, 2014. HHS Center for Consumer Information and Insurance Oversight, Guidance on the Temporary Enforcement Safe Harbor for Certain Employers (June 28, 2013).
88. HHS also indicated it would develop and propose changes to the regulations to accommodate the objections of non-exempt, nonprofit religious organizations following August 1, 2013.
89. Despite the safe harbor and HHS’s accompanying promises, on February 15, 2012, HHS published a final rule “finaliz[ing], without change,” the contraception and abortifacient mandate and narrow religious employers exemption. 77 Fed. Reg. 8725-01 (published Feb. 15, 2012).
The Advance Notice of Proposed Rulemaking 90. On March 21, 2012, HHS issued an Advance Notice of Proposed Rulemaking (ANPRM), presenting “questions and ideas” to “help shape” a discussion of how to “maintain the provision of contraceptive coverage without cost sharing,” while accommodating the religious beliefs of non-exempt religious organizations. 77 Fed. Reg. 16501, 16503 (2012). 91. The ANPRM conceded that forcing religious organizations to “contract, arrange, or pay for” the objectionable contraceptive and abortifacient servicers would infringe their “religious liberty interests.” Id. (emphasis added).

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92. In vague terms, the ANPRM proposed that the “health insurance issuers” for objecting religious employers could be required to “assume the responsibility for the provision of contraceptive coverage without cost sharing.” Id.
93. For self-insured plans, the ANPRM suggested that third party plan administrators “assume this responsibility.” Id.
94. For the first time, and contrary to the earlier definition of “cost sharing,” Defendants suggested in the ANPRM that insurers and third party administrators could be prohibited from passing along their costs to the objecting religious organizations via increased premiums. See id.
95. “[A]pproximately 200,000 comments” were submitted in response to the ANPRM. 78 Fed. Reg. 8456, 8459 (published February 6, 2013). Many of these comments reiterated previous comments that the ANPRM’s proposals would not resolve conscientious objections, because the objecting religious organizations, by providing a health care plan in the first instance, would still be coerced to arrange for and facilitate access to religiouslyobjectionable drugs and services.
The Notice of Proposed Rulemaking 96. On February 1, 2013, HHS issued a Notice of Proposed Rulemaking (NPRM) purportedly addressing the comments submitted in response to the ANPRM. 78 Fed. Reg. 8456. 97. The NPRM proposed two changes to the then-existing regulations. 78 Fed. Reg. 8456, 8458-59. 98. First, it proposed revising the religious employers exemption by eliminating the requirements that religious employers have the purpose of inculcating religious values and primarily employ and serve only persons of their same faith. 78 Fed. Reg. at 8461

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99. Under this proposal a “religious employer” would be one “that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or [](iii) of the Internal Revenue Code.” 78 Fed. Reg. at 8474.
100. HHS emphasized, however, that this proposal “would not expand the universe of employer plans that would qualify for the exemption beyond that which was intended in the 2012 final rules.” 78 Fed. Reg. at 8461.
101. In other words, religious organizations like Wheaton that are not formal churches would continue to be excluded from the exemption.
102. Second, the NPRM reiterated HHS’s intention to “accommodate” non-exempt, nonprofit religious organizations by making them “designate” their insurers to provide plan participants and beneficiaries with free access to contraceptive and abortifacient drugs and services.
103. The proposed “accommodation” did not resolve the concerns of religious organizations like Wheaton because it continued to force them to deliberately provide health insurance and take actions that would trigger access to religiously-objectionable drugs and related education and counseling.
104. In issuing the NPRM, HHS requested comments from the public by April 8, 2013. 78 Fed. Reg. at 8457.
105. “[O]ver 400,000 comments” were submitted in response to the NPRM, 78 Fed. Reg. 39870, 39871 (published July 2, 2013), with religious organizations again overwhelmingly decrying the proposed accommodation as a gross violation of their religious liberty because it would conscript their health care plans as the main cog in the government’s scheme for expanding access to contraceptive and abortifacient services.

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106. Wheaton submitted comments on the NPRM, stating essentially the same
objections stated in this complaint.8
107. On April 8, 2013, the same day the notice-and-comment period ended, Defendant
Secretary Sebelius answered questions about the contraceptive and abortifacient services
requirement in a presentation at Harvard University.
108. In her remarks, Secretary Sebelius stated:
We have just completed the open comment period for the so-called accommodation, and by August 1st of this year, every employer will be covered by the law with one exception. Churches and church dioceses as employers are exempted from this benefit. But Catholic hospitals, Catholic universities, other religious entities will be providing coverage to their employees starting August 1st. . . . [A]s of August 1st, 2013, every employee who doesn’t work directly for a church or a diocese will be included in the benefit package.9
109. It is clear from the timing of these remarks that Defendants gave no consideration
to the comments submitted in response to the NPRM’s proposed “accommodation.” It is also
clear that the Secretary recognizes that even under the accommodation, “religious entities” like
Wheaton “will be providing coverage” for the drugs required by the Mandate.
The Final Mandate
110. On June 28, 2013, Defendants issued a final rule (the “Final Mandate”), which
ignores the objections repeatedly raised by religious organizations and continues to co-opt
objecting religious employers into the government’s scheme of expanding free access to
contraceptive and abortifacient services. 78 Fed. Reg. 39870.
8 Letter from President Philip G. Ryken, President, Wheaton College, to HHS Secretary Kathleen Sebelius (April 8, 2013) (Ex. E).
9 The Forum at Harvard School of Public Health, A Conversation with Kathleen Sebelius, U.S. Secretary of Health and Human Services, Apr. 8, 2013, http://theforum.sph.harvard.edu/events/conversation-kathleen-sebelius (last visited Dec. 2, 2013) (from 51:20 to 53:56) (emphases added) . A permanent link to the relevant section of Sec. Sebelius’ remarks is available here: http://www.youtube.com/watch?v=py6aSwQl-2g&feature=youtu.be (last visited Dec. 2, 2013).

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111. Under the Final Mandate, the discretionary “religious employers” exemption, which is still implemented via footnote on the HRSA website, Ex. C, remains limited to formal churches and religious orders “organized and operate[d]” as nonprofit entities and “referred to in section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue] Code.” 78 Fed. Reg. at 39874.
112. All other religious organizations, including Wheaton, are excluded from the exemption.
113. The Final Mandate creates a separate “accommodation” for certain non-exempt religious organizations. 78 Fed. Reg. at 39874.
114. An organization is eligible for the accommodation if it (1) “[o]pposes providing coverage for some or all of the contraceptive services required”; (2) “is organized and operates as a nonprofit entity”; (3) “holds itself out as a religious organization”; and (4) “self-certifies that it satisfies the first three criteria.” 78 Fed. Reg. at 39874.
115. The self-certification must be executed “prior to the beginning of the first plan year to which an accommodation is to apply.” 78 Fed. Reg. at 39875.
116. The Final Rule extends the current safe harbor through the end of 2013. 78 Fed. Reg. at 39889; see also HHS Center for Consumer Information and Insurance Oversight, Guidance on the Temporary Enforcement Safe Harbor for Certain Employers (June 28, 2013) (extending the safe harbor to the first plan year that begins on or after January 1, 2014).
117. Thus, an eligible organization would need to execute the self-certification prior to its first plan year that begins on or after January 1, 2014, and deliver it to the organization’s insurer or, if the organization has a self-insured plan, to the plan’s third party administrator. 78 Fed. Reg. at 39875.

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118. By the terms of the accommodation, Wheaton will be required to execute the selfcertification and deliver it to its insurers and plan administrators before July 1, 2014.
119. By delivering its self-certification to its insurers and third-party administrators, Wheaton would trigger their obligations to “provide[] payments for contraceptive services,” including abortion-causing contraceptives like Plan B and Ella. 78 Fed. Reg. at 39876 (insurers) see also id. at 39879 (third party administrators).
120. In the case of its self-insured plan, Wheaton’s self-certification acts as “a designation of the third party administrator(s) as plan administrator and claims administrator for contraceptive benefits pursuant to section 3(16) of ERISA.” 78 Fed. Reg. at 39879.
121. The administrator or insurer would be required to “provide payments for contraceptive services for plan participants and beneficiaries.” 78 Fed. Reg. at 39876 (insurers); see also id. at 39879 (third-party administrators).
122. In order for this obligation to be effective, Wheaton would have to identify its employees to the insurer or third-party administrator for the distinct purpose of enabling the government’s scheme to facilitate free access to contraceptive and abortifacient services.
123. The insurer’s obligation to make direct payments for contraceptive and abortion services would continue only “for so long as the participant or beneficiary remains enrolled in the plan.” 78 Fed. Reg. at 39876.
124. Thus Wheaton would have to coordinate with its insurer or third-party administrator regarding when it was adding or removing employees and beneficiaries from its healthcare plan and, as a result, from the abortifacient services payment scheme.
125. Insurers and third-party administrators would be required to notify plan participants and beneficiaries of the contraceptive payment benefit “contemporaneous with (to

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the extent possible), but separate from, any application materials distributed in connection with enrollment (or re-enrollment) in coverage . . . .” 78 Fed. Reg. at 39880 (third-party administrators); see also id. at 39876 (insurers).
126. This would also require Wheaton to coordinate the notices with its insurers and administrators.
127. Thus, even under the accommodation, Wheaton and every other non-exempt objecting religious organization would continue to play a central role in facilitating free access to abortifacient drugs.
128. The insurer would be required to provide the contraceptive benefits “in a manner consistent” with the provision of other covered services. 78 Fed. Reg. at 39876-77.
129. Thus, any payment or coverage disputes presumably would be resolved under the terms of Wheaton’s existing plan documents.
130. Under the accommodation, group health insurance issuers “may not impose any cost-sharing requirements (such as a copayment, coinsurance, or a deductible), or impose any premium, fee, or other charge, or any portion thereof, directly or indirectly, on the eligible organization.” 78 Fed. Reg. at 39896 (emphasis added).
131. For all other preventive services, including non-contraceptive preventive services for women, only cost-sharing (i.e., out-of-pocket expense) is prohibited. There is no restriction on passing along costs via premiums or other charges.
132. Defendants state that they “continue to believe, and have evidence to support,” that providing payments for contraceptive and abortifacient services will be “cost neutral for issuers,” because “[s]everal studies have estimated that the costs of providing contraceptive

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coverage are balanced by cost savings from lower pregnancy-related costs and from improvements in women’s health.” 78 Fed. Reg. at 39877.
133. On information and belief, the studies Defendants rely upon to support this claim are severely flawed.
134. Nevertheless, even if the payments were—over time—to become cost neutral, it is undisputed that there will be up-front costs for making the payments. See, e.g., 78 Fed. Reg. at 39877-78, 39880 (addressing ways insurers and administrators can cover up-front costs).
135. Moreover, if cost savings arise that make insuring an employer’s employees cheaper, the savings would have to be passed on to employers through reduced premiums, not retained by insurance issuers.
136. HHS suggests that, to maintain cost neutrality, issuers may simply ignore this fact and “set the premium for an eligible organization’s large group policy as if no payments for contraceptive services had been provided to plan participants.” 78 Fed. Reg. at 39877.
137. This encourages issuers to artificially inflate the eligible organization’s premiums. 138. Under this methodology—even assuming its legality—the eligible organization would still bear the cost of the required payments for contraceptive, sterilization, and abortifacient services in violation of its conscience, as if the accommodation had never been made. 139. Defendants have suggested that “[a]nother option” would be to “treat the cost of payments for contraceptive services . . . as an administrative cost that is spread across the issuer’s entire risk pool, excluding plans established or maintained by eligible organizations.” 78 Fed. Reg. at 39878.

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140. There is no legal authority for forcing third parties to pay for services provided to eligible organizations under the accommodation.
141. Furthermore, under the Affordable Care Act, Defendants lack authority in the first place to coerce insurers to directly purchase contraceptive, sterilization, and abortifacient services for an eligible organization’s plan participants and beneficiaries.
142. Thus, the accommodation fails to protect objecting religious organizations for lack of statutory authority.
143. Currently, Wheaton operates a self-insured prescription drug plan administered by Blue Cross Blue Shield of Illinois. Because under the Affordable Care Act Wheaton would be required to identify and designate an administrator willing to administer the abortifacient services, Wheaton’s religious beliefs preclude it from complying with the accommodation.
144. For all these reasons, the accommodation does nothing to relieve non-exempt religious organizations—such as Wheaton—from being co-opted as the central cog in the government’s scheme to expand access to free abortifacient services.
145. The Final Rule sets forth complex means through which a third party administrator may seek to recover its costs incurred in making payments for contraceptive and abortifacient services.
146. The third party administrator must identify an issuer who participates in the federal exchanges established under the Affordable Care Act and who would be willing to make payments on behalf of the third party administrator.
147. Cooperating issuers would then be authorized to obtain refunds from the user fees they have paid to participate in the federal exchange as a means of being reimbursed for making payments for contraceptive and abortifacient services on behalf of the third party administrator.

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148. Issuers would be required to pay a portion of the refund back to the third party administrator to compensate it for any administrative expenses it has incurred.
149. These machinations, ostensibly employed only to shift the cost of the Final Mandate, are severely flawed.
150. There is no way to ensure that the cost of administering the contraceptive and abortifacient services would not be passed on to religious organizations through the third party administrator’s fees.
151. Moreover, taking the user fees intended for funding the federal exchanges and using them to provide contraceptive and abortifacient services to employees not participating in the federal exchanges would violate the statute authorizing the user fees. See 78 Fed. Reg. 15410, 15412 (published March 11, 2013); 31 U.S.C. § 9701.
152. In sum, for non-exempt religious organizations like Wheaton, the accommodation is nothing more than a shell game that attempts to disguise the religious organization’s role as the central cog in the government’s scheme for expanding access to abortifacient services.
153. Despite the accommodation’s convoluted machinations, a religious organization’s decision to offer health insurance and its self-certification continue to serve as the sole triggers for creating access to free abortifacient services.
154. Wheaton cannot participate in or facilitate the government’s scheme in this manner without violating its religious convictions.
Wheaton’s Health Care Plan and Its Religious Objections 155. The plan year for Wheaton’s student healthcare plan begins on July 1 of each year.

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156. Wheaton’s student health care plan consists of an insured plan issued by Companion Life Insurance Company.
157. The Final Mandate declares that the rules concerning contraceptive, sterilization, and abortifacient services will “apply to student health insurance coverage arranged by an eligible organization that is an institution of higher education in a manner comparable to that in which they apply to group health insurance coverage provided in connection with a group health plan established or maintained by an eligible organization that is an employer.” 78 Fed. Reg. at 39897.
158. Thus, beginning on or about July 1, 2014, Wheaton faces the choice of either including free coverage for abortifacient services in its student health plan or else forcing its insurance issuer to provide the exact same services.
159. The next plan year for Wheaton’s employee healthcare plan begins on July 1, 2014. Wheaton provides three health insurance plans to its full-time employees. Those plans include two HMO plans offered through BlueCross/BlueShield of Illinois and one PPO plan, which is self-funded and administered by BlueCross/BlueShield of Illinois. As a supplement to the HMO plans, Wheaton now offers two self-funded prescription drug plans.
160. Wheaton’s self-insured PPO insurance plan has not changed significantly since March 23, 2010, and meets the definition of a “grandfathered” plan. See 45 C.F.R. § 147.140(a)(1)(i); 26 C.F.R. § 54.9815-1251T(a)(1)(i); 29 C.F.R. § 2590.715-1251(a)(1)(i).
161. However, Wheaton’s insured HMO plans and its self-funded prescription drug plans have changed significantly since March 23, 2010, and due to the changes they have not included the statements regarding grandfathered status required under federal law. Thus, Wheaton’s insured HMO healthcare plans do not meet the definition of a “grandfathered” plan.

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See 45 C.F.R. § 147.140(a)(1)(i); 26 C.F.R. § 54.9815-1251T(a)(1)(i); 29 C.F.R. § 2590.7151251(a)(1)(i).
162. Thus, beginning on or about July 1, 2014, Wheaton faces the choice of either including free coverage for abortifacient services in its insured HMO employee health plans and its self-funded prescription drug plans or else designating its administrator to provide the exact same services.
163. Wheaton has no objection to including, and already does include, free coverage for women’s preventive services such as mammograms. It also has no conscientious objection to providing access contraceptives that do not inhibit implantation of an embryo, and currently covers those drugs.
164. However, Wheaton’s religious convictions forbid it from including free coverage for abortifacient drugs in any of its healthcare plans.
165. Wheaton’s religious convictions equally forbid it from hiring or designating its insurer to provide free access to abortifacient drugs.
166. From Wheaton’s perspective, there is little difference between forcing its insurance issuer to provide free access to abortifacient drugs and directly providing that access.
167. Wheaton’s religious convictions forbid it from participating in any way in the government’s scheme to promote and provide free access to abortifacient drugs through Wheaton’s health care plans.
168. Wheaton is not eligible for the religious employers exemption because it is not an organization “described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 76 Fed. Reg. at 46626.

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169. Because Wheaton is unable to comply with the Final Mandate as a result of its religious beliefs, and because it is unable to force its insurer to carry out the Final Mandate by submitting a self-certification, it faces crippling fines of $100 each day, for “each individual to whom such failure relates.” 26 U.S.C. § 4980D(b)(1).
170. Dropping its insurance plans would unfairly and severely burden Wheaton’s employees and students, and would place Wheaton at a severe competitive disadvantage in its efforts to recruit and retain employees and students.
171. Wheaton would also face fines of $2000 per year for each of its employees for dropping its insurance plans.
172. Although the government has recently announced that it will postpone implementing the annual fine of $2000 per employee for organizations that drop their insurance altogether, the postponement is only for one year, until 2015. This postponement does not delay the crippling daily fines under 26 U.S.C. § 4980D.
173. Wheaton’s Christian faith compels it to promote the spiritual and physical wellbeing of its students and employees by providing them with generous health services.
174. The Final Mandate forces Wheaton to violate its religious beliefs or incur substantial fines for either excluding objectionable coverage without forcing its insurance issuer to provide the same coverage, or terminating its employee and student health insurance coverage altogether.
175. The Final Mandate forces Wheaton to deliberately provide health insurance that would facilitate free access to abortifacient drugs regardless of the ability of insured persons to obtain these drugs and services from other sources.

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176. The Final Mandate forces Wheaton to facilitate government-dictated education and counseling concerning abortion-causing drugs that are incompatible with its religious beliefs and teachings.
177. Facilitating this government-dictated speech is incompatible and irreconcilable with the express speech and messages concerning the sanctity of life that Wheaton seeks to convey.
The Lack of a Compelling Government Interest 178. The government lacks any compelling interest in coercing Wheaton to facilitate access to abortifacient drugs. 179. The required abortifacient drugs are already widely available at non-prohibitive costs. 180. There are multiple ways in which the government could provide access without co-opting religious employers and their insurance plans in violation of their religious beliefs. 181. For example, the government could pay for the objectionable services through its existing network of family planning services funded under Title X, through direct government payments, or through tax deductions, refunds, or credits. 182. The government could also simply exempt all religious organizations, just as it has already exempted nonprofit religious employers referred to in Section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. 183. HHS claims that its “religious employers” exemption does not undermine its compelling interest in making abortifacient services available for free to women because “houses of worship and their integrated auxiliaries that object to contraceptive coverage on religious grounds are more likely than other employers to employ people who are of the same faith and/or

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adhere to the same objection, and who would therefore be less likely than other people to use contraceptive services even if such services were covered under their plan.” 78 Fed. Reg. at 39887.
184. Wheaton’s employees and students commit to further its mission of serving “Christ and his kingdom,” and its students and faculty members voluntarily sign its community covenant, which affirms their shared commitment to “uphold the God-given worth of human beings, from conception to death, as the unique image-bearers of God (Gen. 1:27; Psalm 8:3-8; 139:13-16).”
185. Because of Wheaton’s religious obligation under its Community Covenant to proclaim Christian teaching regarding the sanctity of life, the students and employees that have chosen to join the Wheaton community are just as likely as employees of exempt organizations to adhere to the same values, and thus are less likely than other people to use the objectionable drugs.
186. In one form or another, the government also provides exemptions for (1) grandfathered plans, 42 U.S.C. § 18011; 75 Fed. Reg. 41726, 41731 (2010); (2) small employers with fewer than 50 employees, 26 U.S.C. § 4980H(c)(2)(A); and (3) certain religious denominations, 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).
187. These broad exemptions further demonstrate that the government has no compelling interest in refusing to include religious organizations like Wheaton within its religious employers exemption.

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188. Employers who follow HHS guidelines may continue to use grandfathered plans indefinitely.
189. Indeed, HHS has predicted that a majority of large employers, employing more than 50 million Americans, will continue to use grandfathered plans through at least 2014, and that a third of medium-sized employers with between 50 and 100 employees may do likewise. 75 Fed. Reg. 34538 (published June 17, 2010).10
190. According to the administration, 96% of American employers are exempt from the employer mandate because they employ fewer than 50 people.11
191. The government’s recent decision to postpone the mandatory insurance requirement of the Affordable Care Act—i.e., the annual fine of $2000 per employee for not offering any insurance—also demonstrates that there is no compelling interest in coercing universal compliance with the Final Mandate concerning contraceptive and abortifacient services, since employers can now simply drop their insurance without any penalty, at least for one additional year.
192. These broad exemptions also demonstrate that the Final Mandate is not a generally applicable law entitled to judicial deference, but rather is constitutionally flawed.
193. The government’s willingness to exempt various secular organizations and postpone the employer mandate, while adamantly refusing to provide anything but the narrowest

10 See also Centers for Medicare & Medicaid Services, Amendment to Regulation on “Grandfathered” Health Plans under the Affordable Care Act, https://www.cms.gov/CCIIO/ Resources/Files/factsheet_grandfather_amendment.html (noting that amendment to regulations “will result in a small increase in the number of plans retaining their grandfathered status relative to the estimates made in the grandfathering regulation”) (last visited Dec. 2, 2013) (Ex. F).
11 WhiteHouse.Gov, The Affordable Care Act Increases Choice and Saving Money for Small Business at 2, http://www.whitehouse.gov/files/documents/ health_reform_for_small_businesses.pdf (Ex. G).

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of exemptions for religious organizations also shows that the Final Mandate is not neutral, but rather discriminates against religious organizations because of their religious commitment to promoting the sanctity of life.
194. Indeed, the Final Mandate was promulgated by government officials, and supported by non-governmental organizations, who strongly oppose Wheaton’s religious teachings and beliefs regarding marriage and family.
195. Defendant Sebelius, for example, has long been a staunch supporter of abortion rights and a vocal critic of religious teachings and beliefs regarding abortion and contraception.
196. On October 5, 2011, six days after the comment period for the original interim final rule ended, Defendant Sebelius gave a speech at a fundraiser for NARAL Pro-Choice America. She told the assembled crowd that “we are in a war.”12
197. On July 16, 2013, Secretary Sebelius further compared opponents of the Affordable Care Act generally to people who opposed civil rights legislation in the 1960s, stating that upholding the Act requires the same action as was shown “in the fight against lynching and the fight for desegregation.”13
198. Consequently, on information and belief, Wheaton alleges that the purpose of the Final Mandate, including the restrictively narrow scope of the religious employers exemption, is to discriminate against religious organizations that oppose abortion.

12 William McGurn, The Church of Kathleen Sebelius, Wall St. J., Dec. 13, 2011, available at http://online.wsj.com/news/articles/ SB10001424052970203518404577094631979925326 (Ex. H).
13 See Kathleen Sebelius, Remarks at the 104th NAACP Annual Conference, July 16, 2013, http://www.hhs.gov/secretary/about/speeches/sp20130716.html (Ex. I).

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CLAIMS COUNT I Violation of the Religious Freedom Restoration Act Substantial Burden 199. Wheaton incorporates by reference all preceding paragraphs. 200. Wheaton’s sincerely held religious beliefs prohibit it from deliberately providing health insurance that would facilitate access to abortifacients, or to related education and counseling. Wheaton’s compliance with these beliefs is a religious exercise. 201. The Final Mandate creates government-imposed coercive pressure on Wheaton to change or violate its religious beliefs. 202. The Final Mandate chills Wheaton’s religious exercise. 203. The Final Mandate exposes Wheaton to substantial fines for its religious exercise. 204. The Final Mandate exposes Wheaton to substantial competitive disadvantages, in that it will no longer be permitted to offer health insurance. 205. The Final Mandate imposes a substantial burden on Wheaton’s religious exercise. 206. The Final Mandate furthers no compelling governmental interest. 207. The Final Mandate is not narrowly tailored to any compelling governmental interest. 208. The Final Mandate is not the least restrictive means of furthering Defendants’ stated interests. 209. The Final Mandate and Defendants’ threatened enforcement of the Final Mandate violate Wheaton’s rights secured to it by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.

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210. Absent injunctive and declaratory relief against the Final Mandate, Wheaton has been and will continue to be harmed.
COUNT II Violation of the First Amendment to the United States Constitution
Free Exercise Clause Burden
211. Wheaton incorporates by reference all preceding paragraphs. 212. Wheaton’s sincerely held religious beliefs prohibit it from deliberately providing health insurance that would facilitate access to abortifacients, or to related education and counseling. Wheaton’s compliance with these beliefs is a religious exercise. 213. Neither the Affordable Care Act nor the Final Mandate is neutral. 214. Neither the Affordable Care Act nor the Final Mandate is generally applicable. 215. Defendants have created categorical exemptions and individualized exemptions to the Final Mandate. 216. The Final Mandate furthers no compelling governmental interest. 217. The Final Mandate is not the least restrictive means of furthering Defendants’ stated interests. 218. The Final Mandate creates government-imposed coercive pressure on Wheaton to change or violate its religious beliefs. 219. The Final Mandate chills Wheaton’s religious exercise. 220. The Final Mandate exposes Wheaton to substantial fines for its religious exercise. 221. The Final Mandate exposes Wheaton to substantial competitive disadvantages, in that it will no longer be permitted to offer health insurance. 222. The Final Mandate imposes a burden on Wheaton’s religious exercise.

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223. The Final Mandate is not narrowly tailored to any compelling governmental interest.
224. The Final Mandate and Defendants’ threatened enforcement of the Final Mandate violate Wheaton’s rights secured to it by the Free Exercise Clause of the First Amendment of the United States Constitution.
225. Absent injunctive and declaratory relief against the Final Mandate, Wheaton has been and will continue to be harmed.
COUNT III Violation of the First Amendment to the United States Constitution
Free Exercise Clause Intentional Discrimination 226. Wheaton incorporates by reference all preceding paragraphs. 227. Wheaton’s sincerely held religious beliefs prohibit it from deliberately providing health insurance that would facilitate access to abortifacients, or to related education and counseling. Wheaton’s compliance with these beliefs is a religious exercise. 228. Despite being informed in detail of these beliefs beforehand, Defendants designed the Final Mandate and the religious employer exemption to the Final Mandate to target religious organizations like Wheaton because of their religious beliefs. 229. Defendants promulgated both the Final Mandate and its religious employer exemption in order to suppress the religious exercise of Wheaton and others. 230. The Final Mandate and Defendants’ threatened enforcement of the Final Mandate thus violate Wheaton’s rights secured to it by the Free Exercise Clause of the First Amendment of the United States Constitution. 231. Absent injunctive and declaratory relief against the Final Mandate, Wheaton has been and will continue to be harmed.

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COUNT IV Violation of the First Amendment to the United States Constitution
Free Exercise and Establishment Clauses Discrimination Among Religions and Religious Institutions 232. Wheaton incorporates by reference all preceding paragraphs. 233. The Free Exercise Clause and Establishment Clause of the First Amendment mandate the equal treatment of all religious faiths and institutions without discrimination or preference. 234. This mandate of equal treatment protects organizations as well as individuals. 235. The Final Mandate’s narrow exemption for “religious employers” but not others discriminates among religions and religious institutions on the basis of religious views or religious status. 236. The Final Mandate and Defendants’ threatened enforcement of the Final Mandate thus violate Wheaton’s rights secured to it by the First Amendment of the United States Constitution. 237. Absent injunctive and declaratory relief against the Final Mandate, Wheaton has been and will continue to be harmed.
COUNT V Violation of the First Amendment to the United States Constitution
Selective Burden (Larson v. Valente) 238. Wheaton incorporates by reference all preceding paragraphs. 239. By design, Defendants imposed the Final Mandate on some religious organizations but not on others, resulting in a selective burden on Wheaton. 240. The Final Mandate and Defendants’ threatened enforcement of the Final Mandate therefore violate Wheaton’s rights secured to it by the First Amendment of the United States Constitution.

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241. Absent injunctive and declaratory relief against the Final Mandate, Wheaton has been and will continue to be harmed.
242. The Final Mandate vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations meeting the definition of “religious employers.”
COUNT VI Interference in Matters of Internal Religious Governance
Free Exercise Clause and Establishment Clause 243. Wheaton incorporates by reference all preceding paragraphs. 244. The Free Exercise Clause and the Establishment Clause protect the freedom of religious organizations to decide for themselves, free from state interference, matters of internal governance as well as those of faith and doctrine. 245. Under these Clauses, the Government may not interfere with a religious organization’s internal decisions concerning the organization’s religious structure, leadership, or doctrine. 246. Under these Clauses, the Government may not interfere with a religious organization’s internal decision if that interference would affect the faith and mission of the organization itself. 247. Wheaton has made an internal decision, dictated by its Christian faith, that any health plans it makes available to its employees and students may not subsidize, provide, or facilitate access to abortifacient drugs or related services. 248. The Final Mandate interferes with Wheaton’s internal decisions concerning its structure and mission by requiring it to subsidize, provide, and facilitate practices that directly conflict with its Christian beliefs.

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249. The Final Mandate’s interference with Wheaton’s internal decisions affects its faith and mission by requiring it to subsidize, provide, and facilitate practices that directly conflict with its religious beliefs.
250. Because the Final Mandate interferes with Wheaton’s internal decision making in a manner that affects its faith and mission, it violates the Establishment Clause and Free Exercise Clause of the First Amendment.
251. Absent injunctive and declaratory relief against the Final Mandate, Wheaton has been and will continue to be harmed.
COUNT VII Religious Discrimination Violation of the First and Fifth Amendments to the United States Constitution Establishment Clause and Due Process 252. Wheaton incorporates by reference all preceding paragraphs. 253. By design, Defendants imposed the Final Mandate on some religious organizations but not on others, resulting in discrimination among religious objectors. 254. Religious liberty is a fundamental right. 255. The “religious employer” exemption protects many religious objectors, but not Wheaton. 256. The “accommodation” provides no meaningful protection for Wheaton. 257. The Final Mandate and Defendants’ threatened enforcement of the Final Mandate therefore violate Wheaton’s rights secured to it by the Establishment Clause of the First Amendment and the Due Process Clause of the Fifth Amendment to the United States Constitution. 258. Absent injunctive and declaratory relief against the Final Mandate, Wheaton has been and will continue to be harmed.

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COUNT VIII Violation of the Fifth Amendment to the United States Constitution
Due Process and Equal Protection 259. Wheaton incorporates by reference all preceding paragraphs. 260. The Due Process Clause of the Fifth Amendment mandates the equal treatment of all religious faiths and institutions without discrimination or preference. 261. This mandate of equal treatment protects organizations as well as individuals. 262. The Final Mandate’s narrow exemption for “religious employers” but not others discriminates among religions on the basis of religious views or religious status. 263. The Final Mandate and Defendants’ threatened enforcement of the Final Mandate thus violate Wheaton’s rights secured to it by the Fifth Amendment of the United States Constitution. 264. Absent injunctive and declaratory relief against the Final Mandate, Wheaton has been and will continue to be harmed.
COUNT IX Violation of the First Amendment to the United States Constitution
Freedom of Speech Compelled Speech and Compelled Silence 265. Wheaton incorporates by reference all preceding paragraphs. 266. Wheaton teaches that abortion and contraception that interferes with the survival of a human embryo violate its religious beliefs. 267. The Final Mandate would compel Wheaton to subsidize activities that Wheaton teaches are violations of its religious beliefs. 268. The Final Mandate would compel Wheaton to provide education and counseling related to abortifacients.

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269. Defendants’ actions thus violate Wheaton’s right to be free from compelled speech as secured to it by the First Amendment of the United States Constitution.
270. The Final Mandate also prevents Wheaton from speaking to its third-party administrator about its religious beliefs and preference that the administrator not provide the services at issue.
271. The Final Mandate’s speech restrictions are not narrowly tailored to a compelling governmental interest.
272. Absent injunctive and declaratory relief against the Final Mandate, Wheaton has been and will continue to be harmed.
COUNT X Violation of the First Amendment to the United States Constitution
Freedom of Speech Expressive Association 273. Wheaton incorporates by reference all preceding paragraphs. 274. Wheaton teaches that contraception, sterilization, and abortion violate its religious beliefs. 275. The Final Mandate would compel Wheaton to facilitate activities that Wheaton teaches are violations of its religious beliefs. 276. The Final Mandate would compel Wheaton to facilitate access to governmentdictated education and counseling related to abortifacients. 277. Defendants’ actions thus violate Wheaton’s right of expressive association as secured to it by the First Amendment of the United States Constitution. 278. Absent injunctive and declaratory relief against the Final Mandate, Wheaton has been and will continue to be harmed.

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Case: 1:13-cv-08910 Document #: 1 Filed: 12/13/13 Page 41 of 48 PageID #:41
COUNT XI Violation of the First Amendment to the United States Constitution
Free Exercise Clause and Freedom of Speech Unbridled Discretion
279. Wheaton incorporates by reference all preceding paragraphs. 280. By stating that HRSA “may” grant an exemption to certain religious groups, the Final Mandate vests HRSA with unbridled discretion over which organizations can have its First Amendment interests accommodated. 281. Defendants have exercised unbridled discretion in a discriminatory manner by granting an exemption via footnote in a website for a narrowly defined group of “religious employers” but not for other religious organizations like Wheaton. 282. Defendants have further exercised unbridled discretion by indiscriminately waiving enforcement of some provisions of the Affordable Care Act while refusing to waive enforcement of the Final Mandate, despite its conflict with the free exercise of religion. 283. Defendants’ actions therefore violate Wheaton’s right not to be subjected to a system of unbridled discretion when engaging in speech or when engaging in religious exercise, as secured to it by the First Amendment of the United States Constitution. 284. Absent injunctive and declaratory relief against the Final Mandate, Wheaton has been and will continue to be harmed.
COUNT XII Violation of the Administrative Procedure Act Lack of Good Cause, Failure to Follow Notice and Comment Rulemaking, and Improper Delegation 285. Wheaton incorporates by reference all preceding paragraphs.

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Case: 1:13-cv-08910 Document #: 1 Filed: 12/13/13 Page 42 of 48 PageID #:42
286. The Affordable Care Act expressly delegates to HRSA, an agency within Defendant HHS, the authority to establish guidelines concerning the “preventive care” that a group health plan and health insurance issuer must provide.
287. Given this express delegation, Defendants were required to engage in formal notice-and-comment rulemaking in a manner prescribed by law before issuing the guidelines with which group health plans and insurers must comply. Proposed regulations were required to be published in the Federal Register and interested persons were required to be given an opportunity to participate in the rulemaking through the submission of written data, views, or arguments.
288. Defendants promulgated the “preventive care” guidelines without engaging in formal notice-and-comment rulemaking in a manner prescribed by law. Defendants, instead, wholly delegated their responsibilities for issuing preventive care guidelines to a nongovernmental entity, the IOM.
289. The IOM did not permit or provide for the broad public comment otherwise required under the APA concerning the guidelines that it would recommend. The dissent to the IOM report noted both that the IOM conducted its review in an unacceptably short time frame, and that the review process lacked transparency.
290. Within two weeks of the IOM issuing its guidelines, Defendant HHS issued a press release announcing that the IOM’s guidelines were required under the Affordable Care Act.
291. Defendants have never explained why they failed to enact these “preventive care” guidelines through notice-and-comment rulemaking as required by the APA.
292. 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.”

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Case: 1:13-cv-08910 Document #: 1 Filed: 12/13/13 Page 43 of 48 PageID #:43
293. 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.” This failure prejudiced Wheaton.
294. Defendants did not consider or respond to the voluminous comments they received in opposition to the interim final rule or the NPRM.
295. Therefore, Defendants have taken agency action not in observance with procedures required by law, and Wheaton is entitled to relief pursuant to 5 U.S.C. § 706(2)(D).
296. Absent injunctive and declaratory relief against the Final Mandate, Wheaton has been and will continue to be harmed.
COUNT XIII Violation of the Administrative Procedure Act
Arbitrary and Capricious Action 297. Wheaton incorporates by reference all preceding paragraphs. 298. In promulgating the Final Mandate, Defendants failed to consider the constitutional and statutory implications of the Final Mandate on Wheaton and similar organizations. 299. Defendants’ explanation for its decision not to exempt Wheaton and similar religious organizations from the Final Mandate runs counter to the evidence submitted by religious organizations during the comment period. 300. Defendant Secretary Sebelius, in remarks made at Harvard University on April 8, 2013, essentially conceded that Defendants completely disregarded the religious liberty concerns submitted by thousands of religious organizations and individuals.

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Case: 1:13-cv-08910 Document #: 1 Filed: 12/13/13 Page 44 of 48 PageID #:44
301. 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.
302. Absent injunctive and declaratory relief against the Final Mandate, Wheaton has been and will continue to be harmed.
COUNT XIV Violation of the Administrative Procedure Act Agency Action Without Statutory Authority 303. Wheaton incorporates by reference all preceding paragraphs. 304. Defendants’ authority to enact regulations under the Affordable Care Act is limited to the authority expressly granted them by Congress. 305. Defendants lack statutory authority to coerce insurance issuers and third party administrators to pay for contraceptive and abortifacient services for individuals with whom they have no contractual or fiduciary relationship. 306. Defendants lack statutory authority to prevent insurance issuers and third party administrators from passing on the costs of providing contraceptive and abortifacient services via higher premiums or other charges that are not “cost sharing.” 307. Defendants lack statutory authority to allow user fees from the federal exchanges to be used to purchase contraceptive and abortifacient services for employees not participating in the exchanges. 308. Because the Final Mandate’s “accommodation” for non-exempt, nonprofit religious organizations lacks legal authority, it is arbitrary and capricious and provides no legitimate protection of objecting organization’s First Amendment rights.

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Case: 1:13-cv-08910 Document #: 1 Filed: 12/13/13 Page 45 of 48 PageID #:45

309. Absent injunctive and declaratory relief against the Final Mandate, Wheaton has been and will continue to be harmed.
COUNT XV Violation of the Administrative Procedure Act
Agency Action Not in Accordance with Law Weldon Amendment
Religious Freedom Restoration Act First Amendment to the United States Constitution 310. Wheaton incorporates by reference all preceding paragraphs. 311. The Final Mandate is contrary to the provisions of the Weldon Amendment of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act of 2009, Pub. L. 110-117, 123 Stat. 3034 (Dec. 16, 2009).14 312. The Weldon Amendment provides that “[n]one of the funds made available in this Act [making appropriations for Defendants Department of Labor and Health and Human Services] may be made available to a Federal agency or program . . . if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” 313. The Final Mandate requires issuers, including Wheaton, to deliberately provide health insurance that facilitates access to all Federal Drug Administration-approved contraceptives. 314. Some FDA-approved contraceptives cause abortions. 315. As set forth above, the Final Mandate violates RFRA and the First Amendment.

14 Available at http://www.hhs.gov/ocr/civilrights/understanding/ConscienceProtect/ publaw111_117_123_stat_3034.pdf (Ex. J).

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Case: 1:13-cv-08910 Document #: 1 Filed: 12/13/13 Page 46 of 48 PageID #:46
316. Under 5 U.S.C. § 706(2)(A), the Final Mandate is contrary to existing law, and is in violation of the APA.
317. Absent injunctive and declaratory relief against the Final Mandate, Wheaton has been and will continue to be harmed.
COUNT XVI Violation of the Administrative Procedure Act
Agency Action Not in Accordance with Law Affordable Care Act
318. Wheaton incorporates by reference all preceding paragraphs. 319. The Final Mandate is contrary to the provisions of the Affordable Care Act. 320. Section 1303 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.” 321. 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. 322. Under the Affordable Care Act, Defendants do not have the authority to decide whether a plan covers abortion; only the issuer does. 323. The Final Mandate requires group health plans to provide coverage of all Federal Drug Administration-approved contraceptives. 324. The Final Mandate requires third-party administrators, like Wheaton’s, to provide or contract to provide coverage of all Federal Drug Administration-approved contraceptives. 325. Some FDA-approved contraceptives cause abortions.

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Case: 1:13-cv-08910 Document #: 1 Filed: 12/13/13 Page 47 of 48 PageID #:47
326. Under 5 U.S.C. § 706(2)(A), the Final Mandate is contrary to existing law, and is in violation of the APA.
327. Absent injunctive and declaratory relief against the Final Mandate, Wheaton has been and will continue to be harmed.
PRAYER FOR RELIEF Wherefore, Wheaton requests that the Court:
a. Declare that the Final Mandate and Defendants’ enforcement of the Final Mandate against Wheaton violate the First Amendment of the United States Constitution;
b. Declare that the Final Mandate and Defendants’ enforcement of the Final Mandate against Wheaton violate the Fifth Amendment of the United States Constitution;
c. Declare that the Final Mandate and Defendants’ enforcement of the Final Mandate against Wheaton violate the Religious Freedom Restoration Act;
d. Declare that the Final Mandate was issued in violation of the Administrative Procedure Act;
e. Issue a permanent injunction prohibiting Defendants from enforcing the Final Mandate against Wheaton and other organizations that object on religious grounds to providing insurance coverage for abortifacient contraceptives and related education and counseling;
f. Award Wheaton the costs of this action and reasonable attorney’s fees, including but not limited to awarding fees pursuant to 42 U.S.C. § 1988(b); and
g. Award such other and further relief as it deems equitable and just.

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Case: 1:13-cv-08910 Document #: 1 Filed: 12/13/13 Page 48 of 48 PageID #:48
JURY DEMAND
Wheaton requests a trial by jury on all issues so triable.
Dated: December 13, 2013
Respectfully submitted,
s/ Christian Poland
Christian Mark Poland (N.D. Ill. Bar No. 90784475) Bryan Cave LLP 161 North Clark Street, Suite 4300 Chicago, Illinois 60601-3315 (312) 602-5085 christian.poland@bryancave.com
Mark Rienzi (DC Bar No. 494336) (pro hac vice application to be filed)
Adèle Auxier Keim (VA Bar No. 76476) (pro hac vice application to be filed)
The Becket Fund for Religious Liberty 3000 K St. NW, Suite 220 Washington, DC 20007 (202) 955-0095 (202) 955-0090 mrienzi@becketfund.org
Counsel for Plaintiff, Wheaton College

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 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

WHEATON COLLEGE,

)

Plaintiff,

v.

)

SYLVIA MATHEWS BURWELL, et al.,

Defendants.

)

)

)

)

Case No. 1:13-cv-08910

)

)

Judge Robert M. Dow, Jr.

)

MEMORANDUM OPINION AND ORDER

Plaintiff Wheaton College is a Christian liberal arts college that provides health insurance

benefits to its em ployees and studen ts and oppo ses abortion and abortifacien t contraceptives on

religious grounds. Plaintiff alle ges that its religious beliefs will be i

mpermissibly and

substantially burdened by regulations prom ulgated pursu ant to th e Patien t Protection and

Affordable Care Act (“ACA”) that require grou p health insurance plans to cover “all Food and

Drug Adm inistration-approved con traceptive met hods, sterilization p rocedures, and patient

education and counseling for all women with reproductive capacity.” 78 Fed. Reg. 39870, 39870

(July 2, 2013) (“the Mandate”). Plaintiff is elig ible for an accommodation that would excuse it

from complying with the Mandate, but alleges that it should be e ligible for an exemption rather

than an accomm odation and, m oreover, that comply ing with the procedures necessary to obtain

an accommodation – na mely, completing and su bmitting to its third-pa rty administrator “EBSA

Form 700—Certification” – will “make it morally com plicit in the wrongful destruction of

human life.” Plain tiff argues that the Mandate violates the F irst Amendment and the Relig ious

Freedom Restoration Act (“RFRA”) and was en acted in violation of the Adm inistrative

Procedures Act (“APA”). Plaintiff has request ed a perm anent injunction enjoining Defendants

from enforcing the Mandate, which Defendants m ay enforce against P laintiff as early as July 1, 2014.
Defendants (“the Governm ent”) moved to dismiss all sixteen co unts of Plaintiff’s complaint or, in the alternative, f or summ ary j udgment. See [25]. Pl aintiff cross-m oved for summary judgm ent on six counts, see [41], [44], and also sought addition al dis covery under Federal Rule of Civil Procedure 56(d) in the even t that its c ross-motion were denied. See [43]. The parties fully brief ed these m otions, and the Court has taken their submissions under advisement. Because (1 ) the Mand ate will take effect for Plaintiff on July 1, 2014, and (2) two cases currently pending before the United States Suprem e Court, Sebelius v. Hobby Lobby Stores, Inc. , No. 13-354, and Conestoga Wood Specialties Corp. v. Sebelius , No. 13-356, m ay affect the ultim ate resolution of at least som e of Plaintiff’s claim s, Pl aintiff has moved for a preliminary injunction with resp ect to each of the six coun ts on which it has cross -moved for summary judgment. See [57], [58]. The Government opposes the motion [59].1
For the reasons stated below, the Court respectfully deni es Plai ntiff’s mot ions for preliminary injunction [ 57], [5 8]. To the ex tent tha t Hobby Lobby and Conestoga call in to question any material aspect of the Se venth Circuit’s controlling decision in University of Notre Dame v. Sebelius, 743 F.3d 547 (7th Cir. 2014), any party m ay file a m otion for reconsideration of this order. This order is also subject to reconsideration on the Court’s own motion.
This matter is set for a telephonic status conference on 6/30/2014 at 10:00 a.m.
1 Briefing on the motions was delay ed until after the S eventh Circuit issued its d ecision in University of Notre Da me v. Sebelius , 7 43 F.3d 547 (7th Cir. 2014), and thus was not co mplete until May 19. The Court convened a conference call with counsel on June 9 to discuss how to proceed in light of the fact that the Supreme Court had not yet issued its rulings in the Hobby Lobby and Conestoga cases. During tha t call, the parties agreed to an expedited s chedule for the filing of the briefs in support of and in opposition to the preliminary injunction motion.
2

I. Background

Plaintiff is a Chris tian liberal arts colleg e located in W heaton, Illino is. Plain tiff is not

affiliated o r associated with any one particul ar church, th ough it characterizes its beliefs as

“Evangelical Protestant.” [41] at 10.

All m embers of Plaintiff’s “community,” i.e., its

employees and students, “assent to [Plaintiff’s] religious beliefs, including its be liefs about the

sanctity of life.” Id. at 3. Pursuant to its beliefs about the sanctity of life, Plaintiff opposes

contraceptive m ethods that “m ay act by k illing a hum an em bryo,” including em ergency

contraception like Plan B and ella. Id. “As part of its religious convictions, [Plaintiff] prom otes

the well-being and health of its students and em ployees * * * [by] provi[ding] generous health

services and health insurance.” [1] ¶ 38. The h ealth insurance that Plaintiff currently offers

covers some contraceptives but not those to which Pl aintiff is religiously opposed. See [41] at 5. Plaintiff offers its he alth insurance pursuant to six plans: two insured HMO plans, a PPO plan, 2

two self-funded prescription dr ug plans, and an insured st udent health plan. See id. at 4. The

“plan year” for Plaintiff’s insurance plans begins on July 1, 2014. [1] ¶¶ 46, 155.

The Seventh Circuit recently provided a co mprehensive discussion of the genesis and

mechanics of the ACA, the Mandate, and the ex emption and accomm odation at issue here in

University of Notre Dame v. Sebeliu s, 743 F.3d 547 (7th Cir. 2014). As the parties are fa miliar

with – and generally in agreem ent about – these m atters, a nd the Court anticip ates addressing

them more robustly in its upcom ing summ ary judgment ruling, the Court incorporates the

Seventh Circuit’s discussion by reference and in cludes here only those background details m ost

pertinent to the resolution of the instant motion.

2 Plaintiff’s P PO plan is “ grandfathered” for p urposes of the ACA, such that it is Mandate.
3

not subject to the

The ACA requires em ployers with 50 or m ore full-tim e employees to provide health

insurance for their full-tim e e mployees or pay a penalty on their federal tax return. See 26

U.S.C. § 4980H. The ACA also requires that n on-exempt group health plans offer coverage for

certain preventive services without cost-sharing requirements. See 42 U.S.C. § 300gg-13. These

preventive servic es in clude “with respec t to wom en, such additiona l preventive care and

screenings * * * as provided for in com prehensive guidelines supported by the Health Resources

and Services Adm inistration [HRSA].” 42 U. S.C. § 300gg-13(a)(4). The HRSA’ s guidelines

include “[a]ll Food and Drug Adm inistration a pproved contraceptive m ethods, sterilization

procedures, and patient educati on and counseling for all wom en with reproductive capacity.”

HHS, Women’s Preventive Health Services Guidelines, http://www.hrsa.gov/womenshealthguid

elines. Failure to provide the required coverage for contraception results in a variety of negative

tax consequences to the employer, including a daily tax of $100 per day per individual “to whom

such failure relates.” 26 U.S.C. §§ 4980D(a), (b)(1). Em ployers who do not provide insurance

at all (despite being required to do so) face an annual tax of $2,000 per full-tim e employee. See

26 U.S.C. § 4980H. Plaintiff avers that it f aces up to $34.8 million in annual tax penalties under

these provisions.

As the Seventh Circuit explained in Notre Dame, “the government, some months after the

enactment of the Affordable Care Act, created by administrative regulation an exemption from

the gui delines.” Notre Dame , 743 F.3d at 550. The exem ption applies only to “religious

employers,” those that are “organized and operate [] as a non-profit entity and [are] referred to in

section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 45 C.F.R. §

147.131(a). After some pushback from religious entities that did not fall w ithin the scope of the

narrow exem ption, the Governm ent promulgated new regulations im

plementing the

4

accommodation at issu e here. See 78 Fed. Reg. 39870, 39875-90 (July 2, 2013); 29 C.F.R. §
2590.715-2713A(a); 45 C.F.R. § 147.131(b). Per those regulations, which Plaintiff alleges were
promulgated in contravention of the APA, relig ious organizations that do not f all within th e
ambit of the exemption may seek an accommodation from the Mandate on religious grounds. An
organization seeking the accommodation must satisfy four requirements:
(1) The organization opposes providi ng coverage for som e or all of any contraceptive services required to be covered under § 147.130(a)(1)(iv) on account of religious objections.
(2) The organization is organized and operates as a nonprofit entity. (3) The organization holds itself out as a religious organization. (4) The org anization self-certifies, in a for m and m anner specified by the Secretary, that it satisfies the criteria in paragraphs (b)(1) through (3) of this section, and m akes such self-certificati on available for exam ination upon request by the first day of the first plan year to which the accommodation in paragraph (c) of this section app lies. The self-cer tification m ust be executed by a person authorized to m ake the certification on be half of the organization, and m ust be maintained in m anner consistent with the record retenti on requirements under section 107 of the Employee Retirement Income Security Act of 1974.
45 C.F.R. § 147.131(b). There is no dispute that Plaintiff satisf ies requirem ents (1)-(3); its
objection is to the self-certification required by 45 C.F.R. § 147.131(b)(4).
Employers seeking the accommodation m ust execute th e self-certification form and
furnish a copy to their health in surance issuers or third-party administrators. T he recipient
“issuers” “may not require any documentation other than the copy of the self-certification from
the eligible organization regarding its status as such.” 45 C.F.R. § 147.131(c)(1). The recipient
issuers are required to “[e]xpr essly exclude contraceptive c overage from the group health
insurance coverage provided in connection with the group health plan; and [p]rovide separate
payments for any contraceptive services requ ired to be covered under § 147.130(a)(1)(iv) for
plan participants and benefi ciaries so long as they rem ain enrolled in the plan.” Id. §
147.131(c)(2)(i). Additionally, issuers are barred from imposing any cost-sharing requirem ents
5

“on the eligible organization, the group health plan, or plan partic ipants or beneficiaries,” and must “segregate premium revenue collected from the eligible organization from the monies used to provide paym ents for c ontraceptive s ervices.” Id. § 147.131(c)(2)(ii). The regulations prohibit accomm odated entities from “(1) [d]irectly o r indirectly interf ering with a third pa rty administrator’s efforts to provide or arrange se parate payments for con traceptive s ervices for participants or beneficiaries in the plan and (2) di rectly or indirectly seeking to influence a third party administrator’s decision to provide or arrange such payments,” 78 Fed. Reg. 39870, 3987980 (July 2, 2013); a footnote clarifie s that “[n]othing in these fi nal regulations prohibits an eligible organization from expressing its opposition to the use of contraceptives.” Id. at 39880 n.41.
Plaintiff contends that “signing and the delivering EBSA Form 700 to its insurer and TPA [third-party adm inistrator] w ould m ake it m orally com plicit in the wrongful destruction of human life.” [41] at 6. Plainti ff further contend s that the self- certification form would give its TPA “the legal authority to provide contraceptiv es to W heaton’s em ployees at no costs” and would underm ine the contract between Plaintiff and its TPA because Plaintiff “is the plan administrator and fiduciary, and Wheaton’s TPA has no authority to change the terms of the plan without Wheaton’s express permission.” [41] at 5. Plaintiff also argues that com plying with the regulations barring it from inte rfering with o r seeking to in fluence the TPA’s provision of contraception, which Plaintiff term s the “gag rule,” “would prevent Wheaton from speaking freely about its objectio ns to lif e-ending em ergency contraceptive s or instru cting its TPA t o provide some contraceptives but not others.” Id. at 6. Yet, if Plainti ff does not comply with the Mandate an d associated regula tions, or com plete and sub mit to its T PA the self -certification form, Plaintiff will be subject to a sizeable tax. Plaintiff seeks preliminary injunctive relief from
6

this conundrum under the Religious Freedom and Res toration Act (“RFRA”), the First

Amendment’s religion and free speech clauses, and the Administrative Procedure Act.

II. Legal Standard

“To obtain a prelim inary injunction, the m oving party m ust show that it has ‘(1) no

adequate remedy at law and will suffer irreparable harm if a preliminary injunction is denied and

(2) some likelihood of success on th e merits.’” Wis. Right to Life, Inc. v. Barland , --- F.3d ---,

2014 WL 1929619, at *23 (7th Ci r. May 14, 2014) (quoting Ezell v. City of Chi. , 651 F.3d 684,

694 (7th Cir. 2011)). The thresho ld for establishing likelihood of success is relatively low.

Mich. v. U.S. Army Corps of Eng’rs , 667 F.3d 765, 782 (7th Cir. 2011). The moving party must

only “present a claim plausible enough that (if the othe r prelim inary injunction f actors cut in

their favor), the entry of a preliminary injunction would be an appropriate step.” Id. at 783.

“If this sho wing is m ade, ‘th e cou rt weigh s th e com peting harm s to the par ties if an

injunction is granted or denied and al so considers the public interest.’” Wis. Right to Life , 2014

WL 1929619, at *23 (quoting Korte v. S ebelius, 735 F.3d 654, 665 (7th Ci r. 2013)). “The

‘equitable balancing proceeds on a sliding-scale analysis; the greater the likelihood of success on

the m erits, the le ss he avily the balance of ha rms m ust tip in the m oving party’s favor.’” Id.

(quoting Korte, 735 F.3d at 665). In First Am endment cases such as this one, the likelihood of

success on the merits is usually the determinative factor. Id. at *24. The loss or impingement of

freedoms protected by the First Amendm ent “unquestionably constitutes irreparable injury,” Am.

Civil L iberties Union of Ill. v. A lvarez, 679 F.3d 583, 589 (7th Cir. 2012) (quoting Elrod v.

Burns, 427 U.S. 347, 373 (1976) (plurality opinion

)), and “injunctions protecting First

Amendment freedom s a re always in the public interest.” Id. at 590 (quoting Christian Legal

7

Soc’y v. Walker, 453 F.3d 853, 859 (7th Cir. 2006)); see also Smith v. Executive Director of Ind.

War Mem’ls Comm’n, 742 F.3d 282, 286 (7th Cir. 2014).

III. Analysis

A. Likelihood of Success on the Merits

1.

RFRA

Under RFRA, the federal governm ent “may substantially burden a person’s exercise of

religion only if it de monstrates that application of the burden to the person (1) is in furtherance

of a com pelling gov ernmental inte rest; and (2) is the lea st res trictive m eans of f urthering that

compelling governm ental interest.” 42 U.S.C. § 2000bb-1(b). A plaintiff states a prim a facie

case under RFRA by dem onstrating that governm ental action substa ntially burdens its sincere

religious exercise. See Gonzales v. O Centro Espirita Beneficente Uniao de Vegetal , 546 U.S.

418, 428 (2006); Notre Dame , 743 F.3d at 554. If the plainti ff clears that hurdle, the burden

shifts to the governm ent to demonstrate that the challenged action was taken in furtherance of a

compelling governmental interest and is the least restrictive means of furthering that com pelling

governmental interest. See Korte v. Sebelius, 735 F.3d 654, 685 (7th Cir. 2013).

Here, Plaintiff contends that its sincere religious exercise will be substantially burdened if

it is required to com plete the EBSA For m 700. Plaintiff argues that it “cannot execute the self-

certification for m the governm ent has provided without making itself morally complicit in the

government’s schem e,” [41] at 20, because d oing so would “facilitate use of em ergency

contraceptives in violation of its s incere beliefs,” id. at 22, and would m aterially alter its

contractual relationship with its T PA by i mposing upon the TPA a duty to becom e a plan

administrator with resp ect to the o bjected-to contraceptiv es. See id. at 22-23. Plaintiff also

8

contends that the Governm ent cannot shoulder its burden of de monstrating that enf orcement of
the Mandate is the least restrictive means of advancing a compelling governmental interest.
Although there is no dispute th at Plaintiff’s religious beli efs are sincere, the C ourt
concludes that Plaintiff has no likelihood of success in establishi ng a substantial b urden on its
religious exercise, at least as the la w in this and the only other circuit to have directly engaged
the issue cu rrently stands. In Notre Dame, the S eventh Circuit squarely rejected the University
of Notre Dam e’s contention that “filling out the for m and sending it to the com panies * * *
‘triggers’ th eir coverage of the contracep tion co sts of the univers ity’s fem ale em ployees and
students, an d that this m akes the univers ity an accom plice in the p rovision of con traception.”
Notre Dame, 743 F.3d at 554. As the Seventh Circuit expl ained, “[f]ederal law, not the religious
organization’s signing and mailing the form, requires health-care insurers, along with third-party
administrators of self-insur ed health plans, to cover contraceptiv e serv ices.” Id. The Sixth
Circuit r ecently c ame to the sam e conclus ion in Michigan Catholic Conference & Catholic Family Services v. Burwell, --- F.3d ---, 2014 WL 2596753, at *8- 10 (6th Cir. June 11, 2014).
These cases strongly suggest that, unl ess the Suprem e Court’s rulings in Hobby Lobby or
Conestoga significantly change the legal landscape, Pl aintiff’s likelihood of dem onstrating that
the accommodation process substantially burdens its religious exercise is insufficient to m eet the threshold required to warrant a preliminary injunction on this basis.3
The Court is not persuaded at this juncture that Plaintiff’s situation (or legal a rguments)
are d istinguishable fro m those rejected in Notre Dame and Michigan Catholic Conference .
3 The Court is aware that the Notre Dame panel decision was not unanimous and that Judge Flaum filed a well-reasoned dissenting opinion explaining why he would have granted a preli minary injunction forbidding t he governm ent from penalizing the university fo r refusing t o com ply with the selfcertification requirement. See Notre Dame, 743 F.3d at 562 (Flaum , J., dissenting). How ever, because that view did not prevail with the panel majority and the petition for rehearing and rehearing en banc was denied, Plaintiff is swimming against th e tide of cont rolling law in this circuit, which this Court is dut ybound to apply.
9

Plaintiff rightly points out that , unlike Notre Dam e, it has not yet signed the EBSA For m 700. But that is of little m oment, sinc e Plaintif f’s theory r ises and f alls on the app eals cou rt’s conclusion that federal law, not Plaintiff’s execution of the E BSA Form 700, is the source of the TPA’s and health insurer’s obligations. Plaintiff is distinguishable from Notre Da me in that it has furnished the Cour t with (ex cerpts of) its insurance contracts and arg ues that the provisions of the contracts would be m aterially altered if it executes and delivers the self-certification. See [41-4]; Notre Dame , 743 F.3d at 555. However, even though the S eventh Circuit did not comprehensively address the con tract argument in Notre Dame due to Notre Dam e’s forfeiture and failure to presen t evidence “th at its contract with Me ritain f orbids the la tter to be a plan fiduciary,” the court nonetheless pronounced Notre Dam e’s argum ent “unconvincing.” Notre Dame, 743 F.3d at 555. In reach ing this conclusion, the S eventh Circuit explained that “the university has not been told to name Meritain as a plan fiducia ry. Rather, the signed form ‘shall be trea ted [by the governm ent] as a designation of the third pa rty ad ministrator as the p lan administrator under section 3(16) of ERISA for any contraceptive servic es required to be covered.’” Id. (quoting 29 C.F.R. § 2510.3-16(b)). The Se venth Circuit appears to have been drawing a distin ction between tre ating an ins urer o r TP A as a p lan adm inistrator for so me purposes and formally imbuing the entity with full fiduciary responsibilities. The Court finds this distinction persuasive, particularly in light of the dearth of au thority in support of Plaintiff’s argument and the broader principle that partie s in m any circum stances cannot contract around statutory obligations. See United States v. Lupton , 620 F.3d 790, 800 (7th Cir. 2010) (“Parties cannot con tract aroun d definitio ns provided in crim inal statutes .”); Equal Employment Opportunity Comm’n v. Ind. Bell Tel. Co. , 256 F .3d 516, 532 (7th Cir. 2001) (en banc) (F laum, C.J., concurring in part and dissenting in part ) (“It is uncontested that em ployers cannot use
10

collective bargain ing agreem ents to contract ar ound anti-d iscrimination laws like Title VII. ”). Accordingly, the Court concludes that Plaintiff has not established a likelihood of suc cess on the merits of its RFRA claim at this time.
2. First Amendment Religion Clauses Plaintiff next contends that “[t]he Manda te v iolates the Religion Clauses becau se it impermissibly discr iminates am ong re ligious in stitutions asser ting th e exac t s ame religiou s objection. Som e favored ‘relig ious em ployers’ are exem pt from the Mandate and the requirement to execute EBSA For m 700. Yet othe rs like Wheaton, who wish to engage in the exact sam e religious ex ercise as ‘relig ious empl oyers,’ are forced to com ply or pay m assive penalties.” [41] at 9. Plain tiff asserts that the G overnment’s implementation of the exemption and accom modation d raws “exp licit and deliberate distinctions between different religiou s organizations” and “violate[s] both the Free Exercise and Establishm ent Clause.” Id. (quoting Larson v. Valente, 456 U.S. 228, 246 n. 23 (1982)). The Seventh Circuit expressly rejected Plaintiff’s argument in Notre Dame. There, Notre Dame argued that the ex emption violated the Es tablishment Clause by “favor[ing] c ertain types of religious organizations (churches or other houses of worship) over others (like Notre Dame).” Notre Dame, 743 F.3d a t 560. The Seventh Circuit obser ved that “religious em ployers, defined as in the cited regulation, have long enjoyed a dvantages (notably tax advantages) over other entities without these advantages being thought to violate the establishm ent clause.” Id. (citations omitted). The court furth er noted that the distinction was not based on denom ination, and held that the Establishment Clause “does not require the government to equalize the burdens (or benefits) that laws of general appli cability impose on religious ins titutions.” Id. The Sixth Circuit likewise rejected a sim ilar challenge to the exem ption and acco mmodation in Michigan
11

Catholic Conference. See 2014 WL 2596753, at *16-17. The Sixth Circuit quoted the sam e Supreme Court case that Plaintiff does here for the proposition that “[t]he clearest command o f the Establishment Clause is that one religious denom ination cannot be officially preferred over another,” id. at *16 (quoting Larson, 456 U.S. at 244), and conclude d that “[t]he line that the exemption and accommodation fra mework draws betw een eligibility for the exemption and fo r the accommodation is b ased on org anizational form and purpose, not religious deno mination.” Id. The Sixth Circuit also persuasively distinguished Colorado Christian University v. Wea ver, 534 F.3d 1245 (10th Cir. 2008), on whic h Plaintiff relies here. See Michigan Catholic Conference, 2014 WL 2596753, at *16; [41] at 9-10; [52] at 5-6. The Court finds particularly compelling the Sixth Circuit’s observation that som e of the Catholic plaintiffs i n Michigan Catholic Conference were eligible for the exemption and so me for the accommodation; this is a clear indication that denom ination is not th e relevant m etric for the exemption. See Michigan Catholic Conference, 2014 WL 2596753, at *16.
The “constitutional prohibition of denom inational preferences is in extricably connected with the co ntinuing vitality of the Free Exercise Clause.” Larson, 456 U.S. at 245. And here, Plaintiff does not separate out its Religion Clause contentions. See [41] at 9-12. To the extent that Plaintiff is alleg ing that the Ma ndate is not neutral or generally ap plicable, the Court finds persuasive the Sixth Circuit’s contrary conclusion. See Michigan Catholic Conferenc, 2014 WL 2596753, at *14-16. P laintiff also makes the add itional argument that th e Government violated its First Amendment rights by “press[ing] ahead with its narrow church-focused exemption in the face of” evidence from Plaintiff and other religious colleges that their full-tim e adm inistrators
12

and faculty4 share the faith of the institutions. See [41] at 12. Notre Dame raised essentially the same point, however, see University of Notre D ame v. Sebelius, Case No. 13-3853, Dkt. No. 20, at 15 (7th Cir. Jan. 13, 2014), and the Seventh Circuit implicitly concluded that this fact “add[ed] nothing to [ Notre Dame’s] RFRA argum ents” and did not “warrant discussion.” Notre Dame , 743 F.3d at 560. The Court finds it self constrained by controlling ci rcuit precedent to reach the same conclusion at this juncture.
3. APA The APA authorizes f ederal cour ts to se t aside agency action s that are “arbitrary, capricious, an abuse of discreti on, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Plaintiff contends that the Government’s enactment of the Mandate, exemption, and accommodation framework should be set aside as violative of the APA because it “ignored key aspects of the problem before them, relied on misinterpretations of the fa cts and laws, and relied on false assum ptions about the religious belief s of e mployees at Evangelical Protestant institutions like W heaton.” [41] at 13-14. N amely, Plaintiff argues that the Mandate was enacted in contravention of the APA because the Government declined to widen the scope of the exemption to inclu de Plaintiff even after Plain tiff infor med the Govern ment that its em ployees (its faculty and administrators, at least) embrace its religious views. See id. at 13-14. Plaintiff’s APA argument is not persuasive. First, as Plaint iff recognizes in its brief, see [41] at 12, the APA argum ent is very closely re lated to the religion clauses argum ent discussed above. Both theories fundam entally challenge the line that the Govern ment has drawn between the exem ption and the accomm odation. (Notably, however, Plaintiff does not directly contend that the Mandate violates the APA because it is unconstitutional. S ee [41] at 12-14.) In light of
4 The statement from the Council f or Christian Co lleges and Universities said nothi ng about the universities’ lower-level employees or students necessarily sharing their religious beliefs. S ee [41] at 12; [41-11].
13

the Seventh Circuit’s c lear r ejection of the c onstitutional a rgument, it is dif ficult to envision a scenario in which Plaintiff could prevail on its closely related APA argum ent, which affords the Government a significantly m ore deferential sta ndard of review. Sec ond, to the extent that Plaintiff’s APA argument is distinct f rom its re ligion c lauses argum ents, the Court is not convinced at this tim e that it has any likelihoo d of success on the m erits. Plaintiff essentially contends that because the Government ignored or failed to consider a single p iece of evidence when drafting regulations, the resultant regulations necessarily are contrary to the evidence. This argument conflates a sin gle piece of evidence with “the ev idence” as a whole. In most every contentious case or rule-m aking process, the d ecision-maker is p resented with conflicting evidence an d is tasked with rendering a decisio n in accord ance with the evidence overall, no t merely a single piece. Here, Plaintiff asserts that the Governm ent disregarded its evidence and relied instead on a purportedly faulty assum ption that the “church-focused religious em ployer exemption was justified because church employees were more likely than the employees of other religious non-profits to agree with their em ployers’ religious views.” [ 41] at 13. Plaintiff’s evidence may have supported the contrary conclusion (at least as to high-level employees at the signatory c olleges), bu t ther e is n o indica tion at th is time that the b ulk of other subm itted evidence did as well. The Governm ent is required only to provide a “conc ise general statement” of a rule’s basis and purpose, 5 U.S.C. § 553(c ), not to furnish a detailed exp lanation that specifically addresses every sing le evidentiar y subm ission m ade to it during a notice-andcomment period. Acco rdingly, Plaintiff has not dem onstrated a likelih ood of success on the merits of its APA claim.
14

4. First Amendment Free Speech Clause Plaintiff contends th at th e Mandate violates th e First Am endment’s free speech clause because the Mandate “forces Wheaton to speak agains t its will, and in a way that co ntradicts its beliefs.” [41] at 14. The firs t prong of Plaintiff’s argum ent is that the requirem ent that it complete the self-certification form is tantam ount to the Governm ent m andating speech th at Plaintiff otherwise would not m ake. See id. (citing Entm’t Software As s’n v. Blago jevich, 469 F.3d 641, 651 (7th Cir. 2006)). Plaintiff asserts th at the EBSA Form 700 “triggers payments for the use of abortifacient drugs a nd services, including for ‘educa tion and counseling’ about those products to Wheaton’s plan participants.” Id. As discussed above, the Seventh Circuit has squarely rejected the “trigg er” theory. Ind eed, both the Seventh and Sixth C ircuits have concluded that the self-certificat ion for m “trigg ers the entities’ disassociation from what they deem to be objectionable coverage.” Michigan Catholic Conference, 2014 WL 2596753, at *13; see Notre Dame , 743 F.3d at 557-58. To the extent that Plaintiff’s free speech argum ent is predicated on the “trigger” theory, it cannot succeed absent a change in the controlling law. Plaintiff also contends that th e so-called “gag rule” vio lates its free speech rights by prohibiting it from “request[ing] that its TP As not use its plans to provide em ergency contraceptives.” [41] at 17. Pl aintiff rightly points out that the Seventh Circuit’s ruling in Notre Dame does not foreclose this argum ent. To t he c ontrary, the Seventh Circuit recognized that “most speech or writing intended to influence someone else’s decision – to persuade someone to do or not do som ething – is protected” by the First Am endment, Notre Dame, 743 F.3d at 560, and was “troubled by the seem ing vagueness of the regulation as drafted and as further m uddied in the f ootnote in the c ommentary.” Id. at 561. The Seventh Circui t did not provide further guidance, h owever, because “the p arties h ave failed to p lace the issu e in focus.” Id. The
15

Seventh Circuit noted that Notre Dam e “hasn’t to ld us what it wants to say but fears to say

(except that it at leas t wants to be able to tell Meritain not to provide c ontraceptive coverage at

all – which sounds like urging civi l disobedience) and the governm ent hasn’t clearly em braced

an interpretation of the regulation that would gi ve rise to the concer ns we’ve expressed.” Id.

The Sixth Circuit found similar impediments to making a merits ruling on this point in Michigan

Catholic Conference. See Michigan Catholic Conference , 2014 W L 2596753, at *14. Plaintiff

here has spelled out in som e detail the contours of what it wishes to say but fear s that it cannot

without running afoul of the regulation.

The Government responds that the “gag rul e” is “m eant only to pr event a self-certifying

organization from using its economic power into not fulfilling its legal obligation to provide

contraceptive coverage. ” [49] at 13. Plainti ff and the Governm ent each have pointed to one

district cou rt case supp orting their view. See Roman Catholic Archbishop of Washington v.

Sebelius, --- F. Supp. 2d ---, 2013 WL 6729515, at *38 (D.D.C. Dec. 20, 2013) (Plain

tiff);

Michigan Catholic Conference v. Sebelius , --- F. Supp. 2d ---, 2013 W L 6838707, at *11 ( W.D.

Mich. Dec. 27, 2013) (Government).

Based on the reco rd curren tly b efore it, the Court concludes that Pl aintiff has

demonstrated some likelihood of success on the m erits of its “gag rule” cl aim. That being said,

however, it is clear from Plainti ff’s briefing and its proposed order that what it seeks in the way

of immediate and preliminary relief is an injunction barring the Government from enforcing the

Mandate and requiring Plaintiff to sign the EBSA Form 700. It is unclear to th e Court how an

injunction as to enf orcement of the “gag rule ” could give Plaintiff this relief; it would still need

to fill out the for m. The Court will explo re w ith counsel at the nex t status h earing whether

Plaintiff wishes to pursue prelim inary injunc tive relief on the “gag rule” asp ects of the

16

regulations or whether it is content to await the Court’s fo rthcoming summary judgm ent ruling

on that issue. In either case, the Court may request supplemental briefing to ascertain the parties’

views on the content of any injunction order to which Plaintiff may be entitled on this issue. See

Fed. R. Civ. P. 65(d)(1)(B) (requiring courts to state terms of an injunction order “specifically”).

B. Remaining Factors

Because the m ajority opinion in Notre Dame stands squarely in th e path of the principal

relief that Plaintiff seeks, Pl aintiff cannot dem onstrate the requisite likelihood of success on th e

merits of its cla ims. According ly, the m otion f or preliminary injunction m ust be denied. See,

e.g., Cox v. City of Chi. , 868 F.2d 217, 223 (7th Cir. 1989). In the interest of completeness,

however, the Court will briefly address the other factors that are cons idered at the prelim inary

injunction stage.

The other two threshold elem ents that Plaint iff must prove to suppo rt the issuance of a

preliminary injun ction are tha t it (1) has n o adequate rem edy at law and (2) will suffer

irreparable harm if the injunc tion is not issu ed. These two requirem ents tend to m erge. See

Roland Mach. Co. v. Dr esser Indus., Inc. , 749 F.2d 380, 387 (7th Cir. 1984). “The question is

then wheth er the plaintif f will be m ade whole if he p revails on the m erits and is award ed

damages.” Id. An injury is “irreparable” when it is of such a nature th at the injured party cannot

be adequately compensated in damages or when dam ages cannot be m easured by any pecuniary

standard. Meridian Mut. Ins. Co. v. Meridian Ins. Grp., Inc. , 128 F.3d 1111, 1120 (7th Cir.

1997). Here, there is no question that Plain

tiff has made these showings. The loss or

impingement of freedom s protected by the Fi rst Am endment “unq uestionably constitutes

irreparable injury,” Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583, 589 (7th Cir. 2012)

17

(quoting Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion)), and such an injury cannot be remedied by the receipt of damages.
The Court likewise conc ludes that at least in the short term – that is, between today and the time by which the C ourt will be in position to rule on the summ ary judgment motions with the benefit of the parties’ views on Hobby Lobby and Conestoga – the balance of harms strongly weighs in P laintiff’s favor. See Korte, 735 F.3d at 665 (“[ T]he court weights the com peting harms to the parties if an injunction is granted or denied and also considers the public interest.”). The potential harm s to Plaintiff are substan tial. If Hobby Lobby and Conestoga do not substantially change the legal lands cape, Plain tiff will be faced with the Hobson’s choice of adhering to its re ligious belief s or being subjected to steep fina ncial penalties. The short-run costs to the Governm ent, on the other hand, are pur ely financial and will be m inimal in the tim e frame referenced above. The Governm ent would at m ost lose for a short period of tim e its ability to collect tax penalties from Plaintiff, an ability that it currently lacks as to many similarly situated en tities whose insurance “p lan yea rs” h appen to begin later in the year. S ee 78 Fed. Reg. 39872. Nonetheless, these considerations do not com e into play in light of Plaintiff’s current inability to demonstrate that it is likely to prevail on the merits of its claims.
18

IV. Conclusion For the reasons stated above, the Court re spectfully denies Plai ntiff’s m otions for
preliminary injunction [ 57], [5 8]. To the ex tent tha t Hobby Lobby and Conestoga call in to question any material aspect of the Se venth Circuit’s controlling decision in University of Notre Dame v. Sebelius, 743 F.3d 547 (7th Cir. 2014), any party m ay file a m otion for reconsideration of this order. This order is also subject to rec onsideration on the Court’s own m otion. This matter is set for a telephonic status conference on 6/30/2014 at 10:00 a.m.

Dated: June 23, 2014 Robert United

___________________________________ M. Dow, Jr. States District Judge

19

 
 Case: 1:13-cv-08910 Document #: 72 Filed: 06/30/14 Page 1 of 4 PageID #:26610

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

WHEATON COLLEGE,

)

Plaintiff,

v.

)

SYLVIA MATHEWS BURWELL, et al.,

Defendants.

)

)

)

)

Case No. 1:13-cv-08910

)

)

Judge Robert M. Dow, Jr.

)

ORDER
For the reas ons stated b elow, Plaintiff’s em ergency motion for reconsideration or, in the alternative, for injunction pending appeal [64] is respectfully denied.
STATEMENT
Before the Court is Plaintiff’s em ergency motion for reconsideration [64] of the Court’s June 23, 2014 order [62] denying Plaintiff’s motion for prelim inary injunctive relief. 1 In th at motion, Plaintiff focuses on what it considers to be “two direct pa ths to a preliminary injunction, neither of which is controlled by the Seventh Circuit’s opinion” in Notre Dame v. Sebelius , 743 F.3d 547 (7th Cir. 2014). 2 After careful consider ation of the expedited briefing [64, 68, 71] and supplemental authority [69] on Plaintiff’s motion, the Court respectfully disagrees. In recognition of the difficult circum stances in which Plaintiff finds itself, the Court issues this abbreviated opinion setti ng forth in summary fashion its reas ons for denying Plaintiff’s m otion
1 The Court is awar e that P laintiff has filed a notice of appeal of the June 23 order. See Seventh Circuit Case No. 14-2396. The Court understands Plaintiff to have appealed under 28 U.S.C. § 129 2(a)(1), not § 1291. Accordingl y, Federal Rule of Civil Procedur e 62(c) suggests that the Co urt may rule on a motion seeking reconsideration of its prior or der deny ing injunctive rel ief. In addit ion, Plaintiff has invoked Federal Rule of Appellate Procedure 8 in bringing its alternative request for an injunctio n pending appeal to the district court in the first instance.
2 Plaintiff also contends that the Court need not consider Notre Dame controlling because the panel itself described its discussion of the merits o f the university’ s claim as “tentative.” In this Court’ s view, the Court of Appeals us ed “tentative” to em phasize that its views were subject to being revisited on a fuller record – gi ven that the “ evidentiary r ecord [ was] virtually a b lank.” Notre Dame , 743 F.3d at 552. However, this Court does not read the panel’s decision as express ing a “tentati ve” view of t he law as it applies to the facts of record at the time. In considering Plaintiff’s claims here, this Court has endeavored to point out sim ilarities and differences in the state of the record, but conc ludes that Plaintiff’ s circumstances are not dist inguishable from Notre Dame’s in a way that woul d allow Plaintiff to escape Notre Dame’s controlling ambit.

Case: 1:13-cv-08910 Document #: 72 Filed: 06/30/14 Page 2 of 4 PageID #:26611
so that Plaintiff m ay prom ptly seek em ergency relief in the Seven th Circu it if Plaintif f so chooses.
In regard to Plaintiff’s second “direct path ” argument – nam ely, its “com pelled speech” claim – the Court stan ds by the analysis in its June 23 Order [62 at 15-17] and has nothing further to add at this time.
Plaintiff’s first “direct path” argum ent on what Plaintiff calls the “gag rule” im posed by the ACA’s implementing regulations requires a longe r discussion. At the status hearing held on June 24, the Court asked the parties to address more of the specifics in re gard to what Plaintiff wanted to say and whether Defendants would a ttempt to stop Plain tiff f rom speaking as it desires. At that tim e, and subsequently in its briefs on the reconsid eration m otion, Plaintiff spelled out with specificity the m essage that it wishes to convey ag ainst the contraceptive mandate and both its and its TPA’s perceived ro le in carrying it out. Government counsel stressed, both orally and in wr iting, that the Governm ent does not believe that its regulations restrict speech; rather, all that is restricted (in the Government ’s view) is cert ain conduct that does not warrant First Amendment protection in any event. As example, the Government cites to a labo r case involv ing the exten t to which an employer can lawfully ex press its op position to efforts to unionize. [68 at 8] (citing NLRB v. Gissel Packing Co., 395 U.S. 575, 617-18 (1969)).
In posing the questions that it asked counsel to address both at the status hearing and i n their briefs, the Court was attem pting to pin down the extent to which the parties disagree on the scope of permissible speech and/or conduct under the regulations. Both the Government and the courts are o bliged, if at all possib le, to construe statutes and regulations in a manner that avoids constitutional infirmities. See, e.g., Chowdhury v. Ashcroft , 241 F.3d 848, 853 (7th Cir. 2001) (“Just as we would construe a statute in a way th at avo ids a constitutio nal problem, if that is fairly possible, both we and the Board should interpret and apply administrative procedures in a way that avoids constitutional issues.”) In add ition, it is well established that “an adm inistrative agency m ay be influenced by cons titutional co nsiderations in the way it in terprets or applies statutes.” Branch v. FCC , 824 F.3d 37, 47 (D.C. Cir. 1987) (Bork, J.). Furtherm ore, the Supreme Court has explained that courts m ust give some deference to agency constructions of regulations, even if th e agency’s explanation is set forth in a br ief, as is the case here. See Auer v. Robbins, 519 U.S. 452, 461-63 (1997). As in Auer, given the steady stream of litigation across the country on the very issues now before this Court and the attention th at the issue undoubtedly is receiving at the highest levels of the relevant executive branch departments, “[t]here is simply no reason to suspect th at the inte rpretation do es not reflect the ag ency’s fair an d considered judgment on the m atter in question.” Id. at 62. In these circum stances, the Court finds it appropriate to consider the Governm ent’s or al and w ritten statem ents as providing its construction of am biguous language in a regulation. As the Suprem e Cour t has stressed, “[a] rule requiring the Secretary to construe his ow n regulations narrowly woul d m ake l ittle sense, since he is free to write the regulations as br oadly as he wishes, subject only to the lim its imposed by the statute. ” Id. at 63. And there is no reason to think that the Secretary cannot construe (and likewise could not rewrite) the existing regulations to narrow their scope as well.3
3 Plaintiff contends that deference to the Govern ment’s proffered construction of the regulation is not appropriate in this instance because the regulation is not ambiguous, and thus the Government is engaged in “creating de facto a new regulation.” The Court respectfully disagrees. The critical ter ms in the
2

Case: 1:13-cv-08910 Document #: 72 Filed: 06/30/14 Page 3 of 4 PageID #:26612
The upshot of the foregoing analysis is th at, on the current reco rd, the Court is not persuaded to issue a prelim inary injunction proh ibiting the Governm ent f rom interf ering with Plaintiff’s First Am endment rights. As the C ourt reads the Governm ent’s representations, the Government will step in only if Plaintiff engage s in conduct that is not protected by the Firs t Amendment. Should that reading b e inaccurate as the case moves forward, Plaintiff m ay return at once to seek appropriate relief.
In addition, at least for present purposes, it is worth no ting tha t even if (a ) the Government and the Court were no t obligated to construe the regula tion to avoid c onstitutional problems and (b) the Court cou ld not accept the narrowing cons truction s et out in the Government’s brief, the Court would not be in pos ition to en ter the broad injunctive relief that Plaintiff seeks at this time in any event. For, when a portion of a statute or regulation is found to be constitutionally infirm, there is a presum ption that the offending portion can be severed from the remainder unless Congress or the agency provided evidence to the contrary. See, e.g., Regan v. Time, Inc. , 468 U.S. 641, 653 (1984). Here, the Court sees no indication th at the regulation barring organizations like Plaintiff from seeking to “interfere with” or “influence” their TPP was so fundamental to the overall scheme as to be non-severable if it were infirm.
Finally, today’s decisions in Hobby Lobby and Conestoga do not provide any basis for this Court either to grant rec onsideration or an injunction pend ing appeal. Although the Justices discussed the accommodation for nonprofit org anizations with religiou s objections (see Burwell v. Hobby Lobby Stores, Inc. , --- U.S. ---, s lip op. at 43 -44 (op inion of the Co urt); id. a t 3 (Kennedy, J., concurring); id. at 29-30 & n.27 (Ginsburg, J., dissenting)), the Court expressly did not “decide today whether an app roach of this type com plies with RFRA for purposes of all religious claims” (id. at 44 (opinion of the Court); see also id. at 10 n.9). Most significantly for today’s purposes, at least in the district court, nothing in th e Supreme Court’s ruling expressly overrules or abrogates Notre Dame, which thus rem ains binding on this Court. It is solely the province of the Seventh Circuit to decide whether to revisit Notre Dame today or at any other time in the future in light of new gui dance from the Supreme Court and/or to issue an injunction pending appeal for that or any other reason. Cf. Gacy v. Wellborn , 994 F.2d 305, 310 (7th Cir. 1993) (“A district judge who thi nks that new evidence or better argument ‘refutes’ one of our decisions should report his c onclusions while applying the ex isting law of the circuit.”); Todd v. Societe Bic, S.A. , 21 F.3d 1402, 1415 (7th Cir. 1994) (Flaum, J ., dissenting) (“In a hierarchical judiciary, judges of inferi or courts m ay not limit de cisions of superior cour ts.”). T o the ex tent
regulation – “interfere” and “influence” – have m any definitions and could be read narrowly, broadly, or anywhere in between. As noted abo ve, both t he Gove rnment and the courts are obliged to give th ose terms a construction that would avoid constitutional infirmity. Although it is impossible to set out precise boundaries, the First Am endment jurisprudence is a bundant and the Government must be careful to give Plaintiff the First Amendment breathi ng space to which it is entitled. The labor case t o which the Government cites in its leading example of conduc t that may not be enti tled to First Amendment protection does not provide a perfect analogy – the TPAs likely are in far different circu mstances than the employees seeking to unionize for the first time, in that the m arket for the TPAs’ services likely would enable Plaintiff’ s TPA to surviv e a decision by Plaintiff to take its business else where while the employees in Gissel Pack ing faced a much stronger incentive to knuckle under to their e mployer’s pressure. Regardless, the existing law provides myriad First Amendment decisions on which the parties can rely in shaping their conduct and the courts are available to mediate any disputes on that score.
3

Case: 1:13-cv-08910 Document #: 72 Filed: 06/30/14 Page 4 of 4 PageID #:26613
that P laintiff believes that th e circum stances ar e appropriate for an injunction pending appeal, such as that granted by the Supreme Court in Little Sisters of the Poor or by the Third Circuit last week in the case subm itted by Plaintiff as supplem ental authority, Plaintiff must ask the Seventh Circuit for that relief, as this Court is bound to apply Notre Dame as it stands.

Dated: June 30, 2014 ______________________________ Robert United

M. Dow, Jr. States District Judge

4

 
 Case: 1:13-cv-08910 Document #: 96 Filed: 12/02/15 Page 1 of 1 PageID #:26679
UNITED STATES DISTRICT COURT FOR THE Northern District of Illinois − CM/ECF LIVE, Ver 6,1
Eastern Division

Wheaton College v. Sylvia Mathews Burwell, et al.

Plaintiff, Defendant.

Case No.: 1:13−cv−08910 Honorable Robert M. Dow Jr.

NOTIFICATION OF DOCKET ENTRY

This docket entry was made by the Clerk on Wednesday, December 2, 2015:
MINUTE entry before the Honorable Robert M. Dow, Jr: The joint motion to stay the case [94] is granted. Parties anticipate a ruling from the Supreme Court in the Little Sisters cases in or before June 2016. A status hearing set for 7/27/2016 at 9:00 a.m. to determine how this case should proceed thereafter. No appearances are necessary on 12/3/2015. Mailed notice(cdh, )

ATTENTION: This notice is being sent pursuant to Rule 77(d) of the Federal Rules of Civil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It was generated by CM/ECF, the automated docketing system used to maintain the civil and criminal dockets of this District. If a minute order or other document is enclosed, please refer to it for additional information.
For scheduled events, motion practices, recent opinions and other information, visit our web site at www.ilnd.uscourts.gov.

 
 UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett McKinley Dirksen United States Courthouse Room 2722 - 219 S. Dearborn Street Chicago, Illinois 60604

Office of the Clerk Phone: (312) 435-5850 www.ca7.uscourts.gov

June 30, 2014

ORDER
Before RICHARD A. POSNER, Circuit Judge ANN CLAIRE WILLIAMS, Circuit Judge DAVID F. HAMILTON, Circuit Judge

WHEATON COLLEGE, Plaintiff - Appellant
v. No.: 14-2396
SYLVIA MATHEWS BURWELL, Secretary of Health and Human Services, et al., Defendants - Appellees
Originating Case Information:
District Court No: 1:13-cv-08910 Northern District of Illinois, Eastern Division District Judge Robert M. Dow
The following is before the court: WHEATON COLLEGE’S EMERGENCY MOTION FOR INJUNCTION PENDING APPEAL - RELIEF REQUESTED BY JUNE 30, 2014, filed on June 26, 2014, by counsel for Appellant Wheaton College.
On the basis of this court's decision in Notre Dame v. Sebelius, 743 F.3d 547 (7th Cir. 2014), we believe that the appellant has not shown that it is likely to prevail on the merits. And the decision today by the United States Supreme Court in Burwell v. Hobby Lobby Stores, Inc., ---U.S.---, slip op. (June 30, 2014), emphasizes that the accommodation provision (applicable in this case) "constitutes an alternative that achieves all of the Government's aims while providing greater respect for religious liberty." Id. at 3.

No. 14-2396

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IT IS ORDERED that the emergency motion for injunction pending appeal is therefore DENIED.

form name: c7_Order_3J(form ID: 177)

 
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In the
United States Court of Appeals

For the Seventh Circuit
____________________

No. 14-2396

WHEATON COLLEGE,

Plaintiff-Appellant,

v.

SYLVIA MATHEWS BURWELL, Secretary of Health and Human Services, et al., Defendants-Appellees.
____________________

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 13 C 8910 — Robert M. Dow, Jr., Judge.
____________________

ARGUED JUNE 10, 2015 — DECIDED JULY 1, 2015 ____________________

Before POSNER, WILLIAMS, and HAMILTON, Circuit Judges.
POSNER, Circuit Judge. Wheaton College is a liberal arts college in Illinois that although not owned by or affiliated with any church (in other words, it is nondenominational) is deeply committed to evangelical Protestantism. Although Wheaton hires faculty and staff from a variety of Christian traditions, and admits students of varied faiths, it requires all members of the college community, which is to say all

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employees and all students, to sign a “Community Covenant” that among other things requires them to “uphold the God-given worth of human beings, from conception to death.” (Despite the centrality of the covenant to the college’s argument, its lawyers did not bother to include it in the appellate record. We found it online, at Wheaton College, “Community Covenant,” www.wheaton.edu/aboutwheaton/community-covenant (visited June 17, 2015, as were the other websites cited in this opinion).) The Covenant does not mention contraception, but the passage we quoted implies, and Wheaton believes, that what is called “emergency contraception,” which means contraception after intercourse, is forbidden on religious grounds if it can destroy a fertilized ovum. Wheaton also opposes intrauterine devices (IUDs) that whether inserted before or after intercourse may prevent the implantation of a fertilized ovum. The college implements its belief about emergency contraception and IUDs by excluding coverage of them from its health plans.
Contraception that prevents fertilization rather than destroying a fertilized ovum is referred to by the college as “traditional contraception,” and the college has made clear that it does not oppose such contraception. Of the 20 types of female contraceptive approved by the Food and Drug Administration the college disapproves only emergencycontraceptive drugs and certain IUDs.
The college brought this suit against the federal government complaining that the Affordable Care Act is infringing its religious rights—in violation of the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1, as well as the First Amendment—by making it complicit in the provision of

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emergency-contraceptive coverage to its employees and students. The suit is pending in the district court; before us is the college’s appeal from the denial of a preliminary injunction.
The Introduction to the college’s opening brief begins with the following inaccurate statement: “This case arises from the government’s effort to use Wheaton College’s health plans to distribute emergency contraceptive drugs.” And the first sentence of the reply brief states in like vein that “Wheaton has benefit plans, and the government wants to use them.” At oral argument the college’s lawyer insisted that the government was “using our plan” and “putting [additional terms] into our contract.” If Wheaton College is wrong, and the government is not trying to “use” the college’s health plans to provide insurance coverage for emergency contraceptives (of which the best known are “morning after” pills), or to add terms to those plans, the college has no case. This point is underscored by the fact that the only articulated relief it seeks in this court is a “remand with an injunction [we assume the college means a preliminary injunction] prohibiting the government’s efforts to use Wheaton’s plans.” True, it says it also wants “an injunction against the government during the pendency of this appeal requiring it to treat Wheaton as an exempt ‘religious employer’” (it means an injunction requiring such treatment, not an injunction against the government’s requiring such treatment); but at the oral argument the college’s lawyer indicated that the college’s only objection is to the government’s “using” Wheaton’s health plans to get around the college’s objection to emergency contraception. Actually there are no efforts by the government to take over

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Wheaton’s health plans, as Wheaton contends. Acts cannot be enjoined that are neither actuality nor threat.
The contraception provisions of the federal Act and its implementing regulations do not alter or annex college or other institutional health plans that fail to provide coverage for some or all contraceptives. In the case of religious objectors to such coverage, the Act requires providers of health insurance (to the objectors’ staff, students, etc., and thirdparty administrators, which usually are also insurance companies) to cover certain preventive services without cost to the insured. The services include “all Food and Drug Administration approved contraceptive methods.” 42 U.S.C. § 300gg-13(a)(4); 45 C.F.R. § 147.130(a)(1)(iv); Health Resources & Services Administration, “Women’s Preventive Services Guidelines,” www.hrsa.gov/womensguidelines. The college does not challenge the government’s authority to require that all approved methods of contraception be available to women at no cost to them. What it challenges is the requirement that it notify its insurers or the government that it is claiming a religious exemption and that it give the government the insurers’ names so that the government can direct the insurers to provide emergency-contraception coverage.
We should note that in its May 2014 response to the “Plaintiff’s Statement of Additional Material Facts,” the government emphatically denied that it has approved any abortifacient contraceptive; it said that “no FDA-approved contraceptive methods cause the demise of an early embryo as part of their mechanism of action.” True, the government defines abortion as the termination of a pregnancy, and defines pregnancy as (beginning) the moment an embryo is

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implanted in the wall of the uterus (see 45 C.F.R. § 46.202(f)), whereas Wheaton defines “conception,” which it regards as the first stage in a pregnancy, as the creation of a fertilized ovum. It takes about five or six days for a fertilized ovum to travel down a fallopian tube and begin the process of implantation in the uterine wall. See UCSF Medical Center, “Conception: How it Works,” www.ucsfhealth.org/educa tion/conception_how_it_works/. Wheaton considers any drug that kills the fertilized ovum by preventing implantation to be an abortifacient.
The FDA’s “Birth Control Guide” says in apparent conformity with Wheaton College’s view that two emergency contraceptives, Plan B and ella, may prevent implantation of a fertilized egg. The government has not disputed (which is not to say that it necessarily accepts) this view, but scientific studies dispute it. According to The Emergency Contraception Website (operated by the Office of Population Control of Princeton University and the Association of Reproductive Health Professionals), “How Does Emergency Contraception Prevent Pregnancy?,” http://ec.princeton.edu/questions/ecw ork.html, “There is no evidence to suggest that either of the FDA-approved emergency contraceptive options, levonorgestrel (LNG, such as Plan B One-Step, Take Action, Next Choice One Dose or My Way) or ulipristal acetate (UPA, such as ella) works after an egg is fertilized.” See also James Trussell, Elizabeth G. Raymond, and Kelly Cleland, “Emergency Contraception: A Last Chance to Prevent Unintended Pregnancy,” http://ec.princeton.edu/questions/ec-review.pdf. For a lucid review of the scientific evidence, see Pam Belluck, “No Abortion Role Seen for Morning-After Pill,” New York Times, June 6, 2012, p. A1. Asked about this at oral argument, how-

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ever, Wheaton College’s lawyer acknowledged ignorance of the scientific literature.
Whether emergency contraceptives prevent implantation is relevant to whether Wheaton has any religious basis for opposing them, given its acceptance of what it calls traditional contraception, but does not affect the outcome of this appeal. The government, while it denies that the emergency contraceptives approved by the FDA and hence subject to the contraception-coverage provisions of the Affordable Care Act are abortifacients, has not made an issue of Wheaton’s religious sincerity. Moreover, the scientific literature does not challenge the capacity of IUDs to prevent implantation, so Wheaton’s religious objection to those devices, at least, is not affected by scientific controversy.
As explained in too many cases to warrant citation, the Affordable Care Act requires college health insurance plans (including plans in which an insurance company merely administers a plan insured by the college itself and is therefore a third-party administrator rather an insurer) to cover the 20 types of FDA-approved contraceptives. But a college can refuse to include in its health plans coverage of drugs of which it disapproves on sincere religious grounds. To exercise this right of refusal the college has only to notify its health insurers, or if it prefers the Department of Health and Human Services, of its unwillingness to provide coverage. The insurers are then obligated by the Affordable Care Act to provide the coverage directly to requesting students, faculty, and staff. The college and its health plans are thus bypassed.
So when Wheaton College tells us that it is being “forced” to allow “use” of its health plans to cover emergen-

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cy contraceptives, it is wrong. It’s being “forced” only to notify its insurers (including third-party administrators), whether directly or by notifying the government (which will forward the notification to the insurers), that it will not use its health plans to cover emergency contraception, that it is out of the loop, that the insurers will have to deal directly with the students, faculty, and staff, bypassing the college health plans, which remain in force, so far as contraceptive coverage is concerned, only for the contraceptives that the college does not disapprove of on religious grounds. The college doesn’t even have to inform the insurers of their obligation to provide coverage; the government as we said does that if the college has told the government that it refuses to provide the coverage.
Once informed by the government of the college’s objection, the insurers are required by the Affordable Care Act and implementing regulations to notify the members of the college community of their right to coverage by the insurers. In deference to religious sensibilities the government directs the insurers to separate notification to the community members from the insurers’ communications with them concerning the college’s health plans, and to include a statement that the college is not funding or administering contraceptive (in Wheaton’s case just emergency-contraceptive) coverage. 29 C.F.R. § 2590.715-2713A(d); 45 C.F.R. § 147.131(d). Call this “using” the health plans? We call it refusing to use the health plans.
The upshot is that the college contracts with health insurers for contraceptive coverage exclusive of coverage for emergency contraceptives, and the Department of Health and Human Services contracts with those insurers to cover

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emergency-contraceptive benefits. The latter contracts are not part of the college’s health plans, and so the college is mistaken when it tells us that the government is “interfering” with the college’s contracts with its insurers. The contracts, which do not require coverage of emergency contraception, are unchanged. New contracts are created, to which the college is not a party, between the government and the insurers.
After the district court denied the preliminary injunction sought by Wheaton College and we denied a temporary injunction pending appeal, the college sought relief from the Supreme Court. In a brief per curiam order the Court said that if the college notified the Department of Health and Human Services in writing of its religious objection to providing coverage for certain types of contraceptives, the Department could rely on the notice “to facilitate the provision of full contraceptive coverage under the Act”—in other words, to notify the insurers that they would be obligated to provide, to the members of the Wheaton College community, “without cost, the full range of FDA approved contraceptives.” Wheaton College v. Burwell, 134 S. Ct. 2806 (2014). The Department notifies the insurers of their obligation to provide contraceptive coverage in the college’s stead without cost to, or any involvement of, the college.
The college argues that it remains involuntarily complicit in the provision of emergency contraception because its notification to the Department that it objects to the provision of contraception on religious grounds serves as the “trigger” of the Department’s ordering the insurers to cover emergency contraception. It says as the trigger-puller or facilitator the college shares responsibility for the extension of such cover-

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age to its students, faculty, and staff. That also is incorrect. The Affordable Care Act requires insurers to provide coverage for FDA-approved emergency as well as traditional contraception to Wheaton’s students and employees, and to pick up the tab for that coverage (which the government reimburses) should Wheaton decide to opt out of paying for emergency-contraception coverage on religious grounds. As we explained in University of Notre Dame v. Burwell, 786 F.3d 606, 614–15 (7th Cir. 2015), it is the law, not any action on the part of the college, that obligates insurers “to pick up the ball if [the college] decides, as is its right, to drop it. [The college’s notification to the government] no more ‘triggers’ [the insurer’s] obligation to provide contraceptive services than a tortfeasor’s declaring bankruptcy ‘triggers’ his cotortfeasors’ joint and several liability for damages. [The insurer] must provide the services no matter what; [by notifying the government, the college] simply shifts the financial burden from the university to the government, as desired by the university.” Wheaton College does not want to be involved in the provision of emergency contraceptives; pursuant to its wishes, it no longer is involved.
It doesn’t claim any right to prevent its students or employees (not to mention dependents of those employees, who are also covered by Wheaton’s health plans) from obtaining access to emergency contraceptives covered by the Affordable Care Act. But it seeks to make that access difficult. For supposing that the college has no obligation to notify the government or the insurers that it doesn’t want to cover emergency contraception, how are the government and the insurers to find this out? Are they required to investigate every college? All that the government requires of an opt out like Wheaton—and it isn’t much—is that

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When a notice is provided to the Secretary of Health and Human Services, the notice must include the name of the eligible organization and the basis on which it qualifies for an accommodation; its objection based on sincerely held religious beliefs to coverage of some or all contraceptive services (including an identification of the subset of contraceptive services to which coverage the eligible organization objects, if applicable); the plan name and type (i.e., whether it is a student health insurance plan within the meaning of 45 CFR 147.145(a) or a church plan within the meaning of ERISA section 3(33)); and the name and contact information for any of the plan’s third party administrators and health insurance issuers. If there is a change in any of the information required to be included in the notice, the organization must provide updated information to the Secretary of Health and Human Services. The Department of Labor (working with the Department of Health and Human Services), shall send a separate notification to each of the plan’s third party administrators informing the third party administrator that the Secretary of Health and Human Services has received a notice under paragraph (b)(1)(ii) of this section and describing the obligations of the third party administrator under § 2510.3–16 of this chapter and this section.
29 C.F.R. § 2590.715-2713A(b)(ii)(B). This is hardly a burdensome requirement; nor does it leave the provider—the opt out—with any residual involvement in the coverage of drugs or devices of which it sincerely disapproves on religious grounds.
At oral argument Wheaton College’s lawyer told us that the college does not object to having to inform the Department of Health and Human Services that it is a religious in-

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stitution unwilling to provide emergency-contraception coverage, but that it does object to identifying its health insurers to the government. It claims the right to tell the government no more than that “we’re Wheaton College and we object to coverage of emergency contraception for our students or our employees and by the way we won’t give you the names of our students or employees or insurers to make it easier for you to arrange alternative coverage for such contraception.” The government could, though at some expense, discover who they were without being told by Wheaton. Would that satisfy Wheaton? It hasn’t told us, but we suspect not, because in Wheaton’s view its notice to the government would still “trigger” the provision of emergency-contraception to its students and employees by its insurers, albeit not pursuant to its contracts with them. Wheaton’s antipathy is to having any contractual relations with insurers who provide emergency contraception to members of the Wheaton College community. Because they are “its” insurers, someone not in the know might think it “complicit” in the insurers’ provision of a type of coverage that offends Wheaton’s religious views. But where’s the complicity?
Even with a strong case Wheaton could not obtain an injunction against the insurers when it hasn’t named them as defendants in its complaint. They now have a contract with the government obliging them to insure the members of the Wheaton community for emergency contraception. The contract provides them with generous reimbursement. See University of Notre Dame v. Burwell, supra, 786 F.3d at 613. We don’t know what the contracts’ duration is or whether or in what circumstances they are terminable by Wheaton College before their expiration date. All that is clear is that the insurers have an interest in this case yet have not been made par-

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ties. In any event, termination of the contracts would give Wheaton only temporary relief, since the government would notify any new insurers hired by Wheaton of their legal obligation to provide emergency-contraceptive coverage.
At oral argument Wheaton’s lawyer said that his client has no objection to the government’s using the college’s insurers to provide emergency-contraceptive coverage as long as it’s not “using” Wheaton’s contract with the insurers or requiring them to provide contraceptives to Wheaton’s students because Wheaton has chosen to opt out. The two conditions are inconsistent; it’s because Wheaton has opted out that the government is ordering the insurers to provide coverage in lieu of Wheaton rather than to continue insuring Wheaton. The first condition, standing alone, would imply that if the government had a contract with an insurer to provide emergency-contraception coverage to all college students, or to all college students who sought coverage because they were not getting it through their university plans, Wheaton would be content. (We wonder.)
We can’t order the U.S. government not to ask particular insurers to insure Wheaton’s students and employees— especially the insurers that are experienced in dealing with the members of the Wheaton community. As for Wheaton’s apparent preference that the government discover through its own research the names of Wheaton’s insurers, we cannot imagine that insistence on this roundabout path to imparting essential information to the government could justify a preliminary injunction, at least in the absence of any explanation by Wheaton of why it thinks the difference between direct and roundabout identification of its insurers pertinent to its religious commitments.

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Wheaton’s complaint, which it has never tried to amend, was filed back in 2013 and sought relief only against having to opt out of emergency-contraception coverage by notifying the insurers. That was the only method of opting out authorized by federal law at the time. The alternative of being allowed to notify the government instead of the insurers came later. The college objects emphatically to that alternative as well, yet hasn’t indicated how it thinks the government would have learned of its objections had it not sued. It does argue that the government has alternatives to making the college’s insurers cover emergency contraception, such as telling the students and employees to find their own insurance through government-run health exchanges or arranging coverage itself (maybe by creating an EmergencyContraception Bureau in the Department of Health and Human Services). But as we discussed in the Notre Dame case, these alternatives would “involve cumbersome administrative machinery and at the same time impose a burden on [the college’s] female students and employees who want to obtain contraceptives.” 786 F.3d at 617. And we don’t understand how a government program to provide contraception directly to Wheaton’s students and employees would relieve the college of its “complicity” in the provision of the forbidden contraceptives: “Were [the college] to hire an unemployed person who, by virtue of becoming employed by [the college], obtained contraception coverage for the first time, would not the university be ’triggering’ the new employee’s access to contraception?” Id.
Wheaton relies on its Community Covenant, which we quoted from and which all students and employees are required to sign, for the proposition that its students and employees share Wheaton’s belief about emergency contracep-

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tives and so the government has no interest in ensuring their access to emergency-contraceptive coverage. Remember, however, that the covenant does not mention emergency contraception, or for that matter “traditional” contraception (which Wheaton does not disapprove); it states merely that the covenant’s signers must “uphold the God-given worth of human beings, from conception to death.” Wheaton as we know interprets this to prohibit the use of emergency contraceptives, but do all its students and employees interpret this broad statement in the same way? Must they? And what about the dependents of members of the college community? They don’t have to sign the Community Covenant and may not share Wheaton’s religious beliefs. We haven’t been told what happens to their coverage of emergency contraception if the college prevails in its suit.
If the college is correct that the government has no real stake in the provision of such coverage to members of the Wheaton College community because they’re all signers of the covenant, this actually undermines its case, by suggesting that its insurers are never asked to provide such coverage to members of the college community, making the college’s complaints academic. Queried at oral argument whether any member of the community has ever been known to violate any of the conditions in the Community Covenant, or been expelled or otherwise punished for such a violation, Wheaton’s lawyer said he was unaware of any. (The college’s student handbook, 59 pages of fine print, which is not in the appellate record but is available online at www.wheaton.edu/~/media/Files/Student-Life/StudentHand book-2014-15.pdf, makes clear that students are required to adhere to the Community Covenant and describes a wide range of sanctions, but the covenant does not mention con-

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traceptives or contraception coverage.) If the implicit prohibition of emergency contraception is totally effective—and Wheaton College has presented no evidence, or even alleged, that it is not—the terms of its contracts with its insurers are indeed academic. It’s as if the Affordable Care Act had entitled sterile women to emergency contraceptives.
The college refers in its brief to a hypothetical “dissatisfied Wheaton employee who wants” insurance coverage for emergency contraceptives. It doesn’t say there are any such employees, however, and implies there are not; for it says that “Wheaton’s employees and students choose to work at or attend Wheaton because they share its religious beliefs and wish to help Wheaton further its mission. Wheaton would violate their implicit trust in the organization and detrimentally alter its relationship with them if it were to violate its religious beliefs regarding abortion.” No one is asking Wheaton to violate its religious beliefs. Besides, if such a “violation” would distress its staff and students, this implies that they indeed adhere to the Community Covenant, and if so Wheaton College need have no fear that any of them will ever use the forbidden contraceptives. So far as we know it has no such fear—its “dissatisfied” employee is a chimera.
The college tells us as we said that it has no objection even to universal coverage by the government of emergency contraception. Yet as that would give the college’s students and employees access to the forbidden contraceptives free of charge, the impact on Wheaton would be unaltered from what it is now.
The college advances secondary grounds for the relief that it seeks. One is that the government is discriminating against the college because churches have been exempted

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from the contraception provisions in the Affordable Care Act and therefore do not have to notify anyone of their unwillingness to provide their employees or parishioners with coverage for contraception. Part of the relief it seeks is “requiring [the government] to treat Wheaton as an exempt ‘religious employer.’” But Wheaton College does not claim to be a church, or explain how without some notification to the government, or to its insurers, an organization that is not, like a church, automatically exempt becomes known to the government as having religious views that clash with, and entitle it to opt out of, the federal law. At oral argument we asked the college’s lawyer whether the college could incorporate itself as a religious organization; he said he didn’t know.
Wheaton further argues that requiring it to ask for an exemption and to provide the government with the name of its insurer violates its First Amendment rights by compelling it to say something that it does not want to say. That would be the equivalent of entitling a tax protester to refuse on First Amendment grounds to fill out a 1099 form and mail it to the Internal Revenue Service. Wheaton remains free to voice its opposition to the use of emergency contraceptives. “Requiring Plaintiffs to give notice that they wish to opt out of the contraceptive coverage requirement no more compels their speech in violation of the First Amendment than does demanding that a conscientious objector self-identify as such.” Priests for Life v. U.S. Dept. of Health & Human Services, 772 F.3d 229, 271 (D.C. Cir. 2014).
The college argues that the government is violating ERISA by designating a third-party administrator of Wheaton College’s health plans to be the plan administrator

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for coverage of emergency contraception. As we know, when notified that a provider of health insurance has religious objections to providing (through insurance companies or directly) coverage for some government-approved medical procedure, the government directs the insurer(s) to provide the coverage itself. This direction constitutes what is termed a “plan instrument,” and section 402(a) of ERISA, 29 U.S.C. § 1102(a), requires that every employee benefit plan be established and maintained pursuant to a written instrument that must designate one or more named fiduciaries to administer the plan. The plan instrument designates the plan administrator; the governmental plan instrument in this case—the government’s direction to the insurer—designates the insurer as the plan administrator. 29 U.S.C. § 1002(16)(A)(i). What had been Wheaton’s plan, so far as emergency contraception was concerned, the Affordable Care Act made the government’s plan when Wheaton refused to comply with the Act’s provision on contraception coverage.
Last the college argues that the government conduct that it asks us to enjoin “violates the Administrative Procedure Act because it is arbitrary, capricious, and contrary to law.” But this just relabels the grounds for relief that we’ve discussed; there is no additional argumentation.
Quite apart from the merits of its arguments, or lack thereof, Wheaton College has failed to satisfy two basic requirements for the issuance of a preliminary injunction. It has failed to show that delaying a judgment in its favor to the conclusion of proceedings in the district court would do the college any harm. In the absence of any evidence or even allegation that any member of the college community is vio-

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lating or is expected to violate or believed likely to violate the college’s prohibition of emergency contraception, there is no reason to think that even if the college’s merely notifying the government of its objection to emergency contraception could “trigger” emergency-contraception coverage it would do so while this case was pending. The college has also failed to match the relief it seeks to the illegalities it alleges. Almost the entire weight of its case falls on attempting to show that the government is trying to “use” the college’s health plans, and it is this alleged use that it primarily asks us to enjoin. But the government isn’t using the college’s health plans, as we have explained at perhaps excessive length. And the relief sought has no connection to Wheaton’s complaints about allegedly forced speech and the alleged violation of ERISA and the APA; nor has Wheaton offered support for its claim to be treated as if it were a church.
The denial of a preliminary injunction is therefore
AFFIRMED.

 
 Case: 1:13-cv-08910 Document #: 119 Filed: 02/22/18 Page 1 of 3 PageID #:26740

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

WHEATON COLLEGE,
Plaintiff,
v.
ALEX AZAR, Secretary, UNITED STATES DEPARTMENT OF HEALTH and HUMAN SERVICES, et al.,
Defendants.

)

)

)

)

Case No. 13-cv-8910

)

)

Judge Robert M. Dow, Jr.

)

)

)

)

)

ORDER GRANTING PERMANENT INJUNCTION AND DECLARATORY RELIEF For the reasons stated below, Plaintiff Wheaton College’s (“Wheaton”) motion for
permanent injunction [116] is granted.

STATEMENT By way of background, this case has been pending for more than three years during which time the legal and regulatory landscape concerning the application of the Religious Freedom and Restoration Act (“RFRA”) to the “contraceptive mandate” imposed under the Affordable Care Act has evolved. At the time that Wheaton’s request for a preliminary injunction first came before the Court [see 58], the Seventh Circuit’s controlling decision in University of Notre Dame v. Sebelius, 743 F.3d 547 (7th Cir. 2014), mandated a decision in favor of Defendants. As the Court observed in its opinion denying Wheaton’s motion, in Notre Dame, “Judge Flaum filed a well-reasoned dissenting opinion explaining why he would have granted a preliminary injunction forbidding the government from penalizing the university for refusing to comply with the self-certification requirement” imposed under the ACA’s implementing regulations. [See 62, at 9 n.3 (citing Notre Dame, 743 F.3d at 562 (Flaum, J., dissenting)).] Yet,

Case: 1:13-cv-08910 Document #: 119 Filed: 02/22/18 Page 2 of 3 PageID #:26741
the Court further acknowledged that it was “duty-bound to apply” the decision of the panel majority [see id.], while inviting any party to “file a motion for reconsideration of this order” should any decision of the Supreme Court “call into question any material aspect of the Seventh Circuit’s controlling decision” in Notre Dame [see id. at 2]. On appeal of this Court’s ruling, the Seventh Circuit affirmed. Wheaton College v. Burwell, 791 F.3d 792 (7th Cir. 2015). This case was then stayed pending the Supreme Court’s consideration of Zubik v. Burwell, 136 S. Ct. 1557 (2016).
In the intervening years, the law has changed along the lines suggested by Judge Flaum. Following oral argument in Zubik, the Supreme Court vacated the decisions of several circuits and remanded the cases so that the parties could be “afforded an opportunity to arrive at an approach going forward” that both “accommodates [the religious employers’] religious exercise” and ensures that “women covered by [their] health plans ‘receive full and equal health coverage, including contraceptive coverage.’” 136 S. Ct. at 1560. After reconsideration of their position, Defendants now agree that enforcement of the currently operative rules regarding the “contraceptive mandate” against employers with sincerely held religious objections would violate RFRA, and thus do not oppose Wheaton’s renewed motion for injunctive and declaratory relief. Defendants have simply requested certain limitations [see 117, at 2] on the scope of the relief requested by Wheaton, to which Wheaton has no objection [see 118, at 1]. After considering the parties’ briefs submitted on the motion for a permanent injunction, including Defendants’ concessions on the merits of Wheaton’s claims, the Court agrees that Wheaton is entitled to a permanent injunction.
In particular, the Court concludes that the Wheaton has met the standards necessary for injunctive relief:
2

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● Wheaton has demonstrated, and Defendants now concede, that enforcement of the contraceptive mandate against Wheaton would violate Wheaton’s rights under the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb;
● Wheaton will suffer irreparable harm to its ability to practice its religious beliefs, harm that is the direct result of Defendants’ conduct, unless Defendants are enjoined from further interfering with Wheaton’s practice of its religion;
● The threatened injury to Wheaton outweighs any injury to Defendants resulting from this injunction; and
● The public interest in the vindication of religious freedom favors the entry of an injunction.
The Court therefore orders that Defendants, their agents, officers, and employees are
enjoined and restrained from any effort to apply or enforce the substantive requirements imposed
in 42 U.S.C. § 300gg-13(a)(4) as those requirements relate to provision of contraceptive
coverage services which violate Wheaton College’s conscience, and are enjoined and restrained
from pursuing, charging, or assessing penalties, fines, assessments, or any other enforcement
actions for noncompliance related thereto, including those found in 26 U.S.C. §§ 4980D, 4980H,
and 29 U.S.C. §§ 1132, 1185d and including, but not limited to, penalties for failure to offer or
facilitate access to religiously-objectionable contraceptives, procedures, and related education
and counseling, against Wheaton College and its insurers and third-party administrators, as their
conduct relates to Wheaton College’s health plans.

Date: February 22, 2018

Robert M. Dow, Jr. United States District Judge

3

 
 (ORDER LIST: 573 U.S.)

MONDAY, JUNE 30, 2014

ORDER IN PENDING CASE

13A1284

WHEATON COLLEGE V. BURWELL, SEC. OF H&HS, ET AL.

The application for an injunction pending appellate review having been submitted to Justice Kagan and by her referred to the Court, the Court orders: Respondents are temporarily enjoined from enforcing against applicants the contraceptive coverage requirements imposed by the Patient Protection and Affordable Care Act, 42 U. S. C. §300gg-13(a)(4), and related regulations, pending the receipt of a response and reply and further order of the Court. The response to the application is due Wednesday, July 2, 2014, by 10 a.m. The reply is due Wednesday, July 2, 2014, by 5 p.m.
Justice Breyer and Justice Sotomayor dissent.

 
 Cite as: 573 U. S. ____ (2014)

1

SOOTrOdMerAYinORP,eJn.,ddinisgsCenatsieng

SUPREME COURT OF THE UNITED STATES _________________
No. 13A1284
_________________
WHEATON COLLEGE v. SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.
ON APPLICATION FOR INJUNCTION
[July 3, 2014]
The application for an injunction having been submitted to JUSTICE KAGAN and by her referred to the Court, the Court orders: If the applicant informs the Secretary of Health and Human Services in writing that it is a nonprofit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicant the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of appellate review. To meet the condition for injunction pending appeal, the applicant need not use the form prescribed by the Government, EBSA Form 700, and need not send copies to health insurance issuers or third-party administrators.
The Circuit Courts have divided on whether to enjoin the requirement that religious nonprofit organizations use EBSA Form 700. Such division is a traditional ground for certiorari. See S. Ct. Rule 10(a).
Nothing in this interim order affects the ability of the applicant’s employees and students to obtain, without cost, the full range of FDA approved contraceptives. The Government contends that the applicant’s health insurance issuer and third-party administrator are required by federal law to provide full contraceptive coverage regardless whether the applicant completes EBSA Form 700.

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SOTOMAYOR, J., dissenting
The applicant contends, by contrast, that the obligations of its health insurance issuer and third-party administrator are dependent on their receipt of notice that the applicant objects to the contraceptive coverage requirement. But the applicant has already notified the Government— without using EBSA Form 700—that it meets the requirements for exemption from the contraceptive coverage requirement on religious grounds. Nothing in this order precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the Act.
In light of the foregoing, this order should not be construed as an expression of the Court’s views on the merits.
JUSTICE SCALIA concurs in the result.
JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG and JUSTICE KAGAN join, dissenting.
The Patient Protection and Affordable Care Act, 124 Stat. 119, through its implementing regulations, requires employer group health insurance plans to cover contraceptive services without cost sharing. Recognizing that people of religious faith may sincerely oppose the provision of contraceptives, the Government has created certain exceptions to this requirement. Churches are categorically exempt. Any religious nonprofit is also exempt, as long as it signs a form certifying that it is a religious nonprofit that objects to the provision of contraceptive services, and provides a copy of that form to its insurance issuer or third-party administrator. The form is simple. The front asks the applicant to attest to the foregoing representations; the back notifies third-party administrators of their regulatory obligations.
The matter before us is an application for an emergency injunction filed by Wheaton College, a nonprofit liberal arts college in Illinois. There is no dispute that Wheaton is entitled to the religious-nonprofit exemption from the

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SOTOMAYOR, J., dissenting
contraceptive coverage requirement. Wheaton nonetheless asserts that the exemption itself impermissibly burdens Wheaton’s free exercise of its religion in violation of the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, 42 U. S. C. §2000bb et seq., on the theory that its filing of a self-certification form will make it complicit in the provision of contraceptives by triggering the obligation for someone else to provide the services to which it objects. Wheaton has not stated a viable claim under RFRA. Its claim ignores that the provision of contraceptive coverage is triggered not by its completion of the self-certification form, but by federal law.
Even assuming that the accommodation somehow burdens Wheaton’s religious exercise, the accommodation is permissible under RFRA because it is the least restrictive means of furthering the Government’s compelling interests in public health and women’s well-being. Indeed, just earlier this week in Burwell v. Hobby Lobby Stores, Inc., ante, at ___, the Court described the accommodation as “a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all [Food and Drug Administration (FDA)]-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage.” Ante, at 3. And the Court concluded that the accommodation “constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty.” Ibid. Those who are bound by our decisions usually believe they can take us at our word. Not so today. After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates RFRA as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might, see ante, at 29–30 (GINSBURG, J., dissenting), retreats from that position.

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SOTOMAYOR, J., dissenting
That action evinces disregard for even the newest of this Court’s precedents and undermines confidence in this institution.
Even if one accepts Wheaton’s view that the selfcertification procedure violates RFRA, that would not justify the Court’s action today. The Court grants Wheaton a form of relief as rare as it is extreme: an interlocutory injunction under the All Writs Act, 28 U. S. C. §1651, blocking the operation of a duly enacted law and regulations, in a case in which the courts below have not yet adjudicated the merits of the applicant’s claims and in which those courts have declined requests for similar injunctive relief. Injunctions of this nature are proper only where “the legal rights at issue are indisputably clear.” Turner Broadcasting System, Inc. v. FCC, 507 U. S. 1301, 1303 (1993) (Rehnquist, C. J., in chambers) (internal quotation marks omitted). Yet the Court today orders this extraordinary relief even though no one could credibly claim Wheaton’s right to relief is indisputably clear.
The sincerity of Wheaton’s deeply held religious beliefs is beyond refute. But as a legal matter, Wheaton’s application comes nowhere near the high bar necessary to warrant an emergency injunction from this Court. For that reason, I respectfully dissent.
I A
The Affordable Care Act requires certain employer group health insurance plans to cover a number of preventative-health services without cost sharing. These services include “[a]ll Food and Drug Administration . . . approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity, as prescribed by a provider.” 77 Fed. Reg. 8725 (2012) (brackets and internal quotation marks

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SOTOMAYOR, J., dissenting
omitted). As a practical matter, the provision ensures that women have access to contraception at no cost beyond their insurance premiums. Employers that do not comply with the mandate are subject to civil penalties.
Recognizing that some religions disapprove of contraceptives, the Government has sought to implement the mandate in a manner consistent with the freedom of conscience. It has categorically exempted any group health plan of a “religious employer,” as defined by reference to the Tax Code provision governing churches. See 45 CFR §147.131(a); http://hrsa.gov/womensguidelines (as visited July 2, 2014, and available in Clerk of Court’s case file). And it has extended a further accommodation to religious nonprofits that do not satisfy the categorical exemption. All agree that Wheaton qualifies as a religious nonprofit.
To invoke the accommodation and avoid civil penalties, a religious nonprofit need only file a self-certification form stating (1) that it “opposes providing coverage for some or all of any contraceptive services required to be covered under [the regulation] on account of religious objections,” (2) that it “is organized and operates as a nonprofit entity,” and (3) that it “holds itself out as a religious organization.” §147.131(b). The form is reprinted in an appendix to this opinion. Any organization that completes the form and provides a copy to its insurance issuer or third-party administrator1 need not “contract, arrange, pay, or refer for contraceptive coverage” to which it objects. 78 Fed. Reg. 39874 (2013); see 29 CFR §2590.715–2713A(b)(1) and (c)(1). Instead, the insurance issuer or third-party admin-
——————
1 Typically, an employer contracts to pay a health insurer to provide coverage; the insurer both covers the cost of medical claims and manages the process for administering those claims. Employers who maintain self-insured plans cover the cost of claims for medical treatment directly. Such employers often contract with third-party administrators to administer the claims process.

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SOTOMAYOR, J., dissenting
istrator must provide contraceptive coverage for the organization’s employees and may not charge the organization any premium or other fee related to those services. The back of the self-certification form reminds third-party administrators that receipt of the form constitutes notice that they must comply with their regulatory obligations. See Appendix, infra.
B
Rather than availing itself of this simple accommodation, Wheaton filed suit, asserting that completing the form and submitting it to its third-party administrator would make it complicit in the provision of contraceptive coverage, in violation of its religious beliefs. On that basis, it sought a preliminary injunction, claiming that the law and regulations at issue violate RFRA, which provides that the Government may not “substantially burden a person’s exercise of religion” unless the application of that burden “is the least restrictive means of furthering [a] compelling governmental interest.” 42 U. S. C. §§2000bb– 1(a) and (b).2
The District Court denied a preliminary injunction on the ground that the regulations exempting Wheaton from the contraceptive coverage requirement do not substantially burden its exercise of religion. App. to Emergency Application for Injunction Pending Appellate Review 1–20. Under Circuit precedent, the court reasoned, Wheaton’s act of “filling out the form and sending it to the [thirdparty administrator]” in no way “triggers” coverage of contraception costs. Id., at 9 (internal quotation marks omitted). The Seventh Circuit in turn denied Wheaton’s motion for an injunction pending appeal. See Order in No. 14–2396 (CA7, June 30, 2014). In doing so, it relied on
——————
2 Wheaton also raised claims under the First Amendment and the Administrative Procedure Act. Because it does not press those claims in this Court as a basis for injunctive relief, I do not discuss them.

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SOTOMAYOR, J., dissenting
this Court’s pronouncement in Hobby Lobby “that the accommodation provision (applicable in this case) ‘constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty.’ ” Ibid.
Wheaton applied to JUSTICE KAGAN, in her capacity as Circuit Justice for the Seventh Circuit, for an emergency injunction against enforcement of the law and regulations pending resolution of its legal challenge. She referred the matter to the Conference, which entered a temporary injunction and called for a response from the Government. See ante, at ___. After receipt of the Government’s response, the Court today enters an order granting injunctive relief.
II A
I disagree strongly with what the Court has done. Wheaton asks us to enjoin the enforcement of a duly enacted law and duly promulgated regulations before the courts below have passed on the merits of its legal challenge. Relief of this nature is extraordinary and reserved for the rarest of cases. With good reason. The only source of authority for this Court to issue an injunction pending review in the lower courts is the All Writs Act, which provides that this Court “may issue all writs necessary or appropriate in aid of [its] . . . jurisdictio[n] and agreeable to the usages and principles of law.” 28 U. S. C. §1651(a). This grant of equitable power is a failsafe, “to be used ‘sparingly and only in the most critical and exigent circumstances.’ ” Ohio Citizens for Responsible Energy, Inc. v. NRC, 479 U. S. 1312, 1313 (1986) (SCALIA, J., in chambers).
Under our precedents, “[a]n injunction is appropriate only if (1) it is necessary or appropriate in aid of our jurisdiction, and (2) the legal rights at issue are indisputably

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SOTOMAYOR, J., dissenting
clear.” Turner Broadcasting System, 507 U. S., at 1303 (brackets, internal quotation marks, and citations omitted).3 To understand how high a bar that second prong is, consider that this Court has previously pointed to differences of opinion among lower courts as proof positive that the standard has not been met. See Lux v. Rodrigues, 561 U. S. 1306, 1308 (2010) (ROBERTS, C. J., in chambers) (observing that “the courts of appeals appear to be reaching divergent results” respecting the applicant’s claim, and that, “[a]ccordingly, . . . it cannot be said that his right to relief is ‘indisputably clear’ ”). Neutral application of this principle would compel the denial of Wheaton’s application without any need to examine the merits, for two Courts of Appeals that have addressed similar claims have rejected them. See Notre Dame v. Sebelius, 743 F. 3d 547 (CA7 2014); Michigan Catholic Conference and Catholic Family Services v. Burwell, ___ F. 3d ___, 2014 WL 2596753 (CA6, June 11, 2014).4 Remarkably, the Court uses division
——————
3 Indeed, some of my colleagues who act to grant relief in this case have themselves emphasized the exceedingly high burden that an applicant must surmount to obtain an interlocutory injunction under the All Writs Act. See Lux v. Rodrigues, 561 U. S. 1306, 1307 (2010) (ROBERTS, C. J., in chambers) (an applicant must demonstrate that “the legal rights at issue are indisputably clear” in order to obtain such injunctive relief) (internal quotation marks omitted); Respect Maine PAC v. McKee, 562 U. S. ___, ___ (2010) (unlike a stay of a lower court’s order, a request for an injunction against the enforcement of a law “ ‘does not simply suspend judicial alteration of the status quo but grants judicial intervention that has been withheld by lower courts’ ”) (quoting Ohio Citizens for Responsible Energy, Inc. v. NRC, 479 U. S. 1312, 1313 (1986) (SCALIA, J., in chambers)).
4 To be sure, two other Courts of Appeals have recently granted temporary injunctions similar to the one Wheaton seeks here. See Order in Eternal Word Television Network, Inc. v. Secretary, U. S. Dept. of Health and Human Services, No. 14–12696–CC (CA11, June 30, 2014) (granting injunction pending appeal); Order in Diocese of Cheyenne v. Burwell, No. 14–8040 (CA10, June 30, 2014) (same). Although denying the injunction in this case would produce a different outcome, the Government could of course move to vacate those injunctions were we

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SOTOMAYOR, J., dissenting
among the Circuits as a justification for the issuance of its order, noting that “division is a traditional ground for certiorari.” Supra, at 1. But a petition for writ of certiorari is not before us. Rather, given the posture of this application—for an emergency injunction under the All Writs Act—division of authority is reason not to grant relief.
B
Wheaton’s RFRA claim plainly does not satisfy our demanding standard for the extraordinary relief it seeks.
For one thing, the merits of this case are not before this Court for full review; adjudication of the merits is still pending in the District Court. So nothing necessitates intervention in order to “ ‘aid . . . our jurisdiction,’ ” Turner Broadcasting System, 507 U. S., at 1301 (alterations omitted), over any eventual certiorari petition from a decision rendered below. If the Government is allowed to enforce the law, either Wheaton will file the self-certification form, or it will not. Either way, there will remain a live controversy that this Court could adjudicate after the case is decided on the merits below. And either way, if Wheaton is correct in its challenge to the law, its rights will be vindicated and it will obtain the relief it seeks.
As to the merits, Wheaton’s claim is likely to fail under any standard, let alone the standard that its entitlement to relief be “ ‘indisputably clear,’ ” ibid. Wheaton asserts that filing the self-certification form might ultimately result in the provision of contraceptive services to its employees, thereby burdening its religious exercise. And it points out that if it does not file the form, it will face civil penalties. But it is difficult to understand how these arguments make out a viable RFRA claim.
RFRA requires Wheaton to show that the accommoda-

——————
to deny this one. Moreover, while uniformity certainly is important, uniform error is not.

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SOTOMAYOR, J., dissenting
tion process “substantially burden[s] [its] exercise of religion.” §2000bb–1(a). “Congress no doubt meant the modifier ‘substantially’ to carry weight.” Hobby Lobby, 573 U. S., at ___ (GINSBURG, J., dissenting) (slip op., at 20). Wheaton, for religious reasons, categorically opposes the provision of contraceptive services. The Government has given it a simple means to opt out of the contraceptive coverage mandate—and thus avoid any civil penalties for failing to provide contraceptive services—and a simple means to tell its third-party administrator of its claimed exemption.
Yet Wheaton maintains that taking these steps to avail itself of the accommodation would substantially burden its religious exercise. Wheaton is “religiously opposed to emergency contraceptives because they may act by killing a human embryo.” Emergency Application for Injunction Pending Appellate Review 11. And it “believes that authorizing its [third-party administrator] to provide these drugs in [its] place makes it complicit in grave moral evil.” Ibid. Wheaton is mistaken—not as a matter of religious faith, in which it is undoubtedly sincere, but as a matter of law: Not every sincerely felt “burden” is a “substantial” one, and it is for courts, not litigants, to identify which are. See Hobby Lobby, 573 U. S., at ___ (GINSBURG, J., dissenting) (slip op., at 21–22). Any provision of contraceptive coverage by Wheaton’s third-party administrator would not result from any action by Wheaton; rather, in every meaningful sense, it would result from the relevant law and regulations. The law and regulations require, in essence, that some entity provide contraceptive coverage. A religious nonprofit’s choice not to be that entity may leave someone else obligated to provide coverage instead— but the obligation is created by the contraceptive coverage mandate imposed by law, not by the religious nonprofit’s

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SOTOMAYOR, J., dissenting
choice to opt out of it.5 Let me be absolutely clear: I do not doubt that Wheaton
genuinely believes that signing the self-certification form is contrary to its religious beliefs. But thinking one’s religious beliefs are substantially burdened—no matter how sincere or genuine that belief may be—does not make it so.
An analogy used by the Seventh Circuit may help to explain why Wheaton’s complicity theory cannot be legally sound:
“Suppose it is wartime, there is a draft, and a Quaker is called up. Many Quakers are pacifists, and their pacifism is a tenet of their religion. Suppose the Quaker who’s been called up tells the selective service system that he’s a conscientious objector. The selective service officer to whom he makes this pitch accepts the sincerity of his refusal to bear arms and excuses him. But as the Quaker leaves the selective service office, he’s told: ‘you know this means we’ll have to draft someone in place of you’—and the Quaker replies indignantly that if the government does that, it will be violating his religious beliefs. Because his religion teaches that no one should bear arms, drafting another person in his place would make him responsible for the military activities of his replacement, and by doing so would substantially burden his own sincere religious beliefs. Would this mean that by exempting him the government had forced him to
——————
5 Wheaton notes that the back of the self-certification form provides third-party administrators with notice of their regulatory obligations. See Emergency Application for Injunction Pending Appellate Review 8; see also Appendix, infra. That notice is merely an instruction to thirdparty administrators; it is not a part of any of the representations required on the front of the form. No statement to which Wheaton must assent in any way reflects agreement with or endorsement of the notice.

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‘trigger’ the drafting of a replacement who was not a conscientious objector, and that the Religious Freedom Restoration Act would require a draft exemption for both the Quaker and his non‐Quaker replacement?” Notre Dame, 743 F. 3d, at 556.
Here, similarly, the filing of the self-certification form merely indicates to the third-party administrator that a religious nonprofit has chosen to invoke the religious accommodation. If a religious nonprofit chooses not to pay for contraceptive services, it is true that someone else may have a legal obligation to pay for them, just as someone may have to go to war in place of the conscientious objector. But the obligation to provide contraceptive services, like the obligation to serve in the Armed Forces, arises not from the filing of the form but from the underlying law and regulations.
It may be that what troubles Wheaton is that it must participate in any process the end result of which might be the provision of contraceptives to its employees. But that is far from a substantial burden on its free exercise of religion.
Even if one were to conclude that Wheaton meets the substantial burden requirement, the Government has shown that application of the burden is “the least restrictive means” to further a “compelling governmental interest,” §2000bb–1(b)(2). The contraceptive coverage requirement plainly furthers compelling interests in public health and women’s well-being. See Hobby Lobby, ante, at 2 (KENNEDY, J. concurring). And it is the “least restrictive means” of furthering those interests. Indeed, as justification for its decision in Hobby Lobby—issued just this week—the very Members of the Court that now vote to grant injunctive relief concluded that the accommodation “constitutes an alternative that achieves all of the Government’s aims while providing greater respect for reli-

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gious liberty.” Ante, at 3 (majority opinion); see also ante, at 4 (“The effect of the [Dept. of Health and Human Services (HHS)]-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing”); ante, at 44 (“At a minimum . . . [the accommodation] does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well”); see also ante, at 4 (KENNEDY, J., concurring) (“[I]t is the Court’s understanding that an accommodation may be made to the employers without imposition of a whole new program or burden on the Government. As the Court makes clear, this is not a case where it can be established that it is difficult to accommodate the government’s interest, and in fact the mechanism for doing so is already in place”). Today’s grant of injunctive relief simply does not square with the Court’s reasoning in Hobby Lobby.
It should by now be clear just how far the Court has strayed in granting Wheaton an interlocutory injunction against the enforcement of the law and regulations before the courts below have adjudicated Wheaton’s RFRA claim. To warrant an injunction under the All Writs Act, the Court must have more than a bare desire to suspend the existing state of affairs; Wheaton’s entitlement to relief must be indisputably clear. While Wheaton’s religious conviction is undoubtedly entitled to respect, it does not come close to affording a basis for relief under the law.
C
The Court’s approach imposes an unwarranted and unprecedented burden on the Government’s ability to administer an important regulatory scheme. The Execu-

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SOTOMAYOR, J., dissenting
tive is tasked with enforcing Congress’ mandate that preventative care be available to citizens at no cost beyond that of insurance. In providing the accommodation for which Wheaton is eligible, the Government has done a salutary thing: exempt religious organizations from a requirement that might otherwise burden them. Wheaton objects, however, to the minimally burdensome paperwork necessary for the Government to administer this accommodation. If the Government cannot require organizations to attest to their views by way of a simple self-certification form and notify their third-party administrators of their claimed exemption, how can it ever identify the organizations eligible for the accommodation and perform the administrative tasks necessary to make the accommodation work? The self-certification form is the least intrusive way for the Government to administer the accommodation. All that a religious organization must do is attest to the views that it holds and notify its thirdparty administrator that it is exempt. The Government rightly accepts that attestation at face value; it does not question whether an organization’s views are sincere. It is not at all clear to me how the Government could administer the religious nonprofit accommodation if Wheaton were to prevail.
The Court has different ideas, however. Stepping into the shoes of HHS, the Court sets out to craft a new administrative regime. Its order grants injunctive relief so long as Wheaton “informs the Secretary of Health and Human Services in writing that it is a non-profit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services.” Supra, at 1. And it goes further—“[t]o meet the condition for injunction pending appeal,” the Court continues, Wheaton “need not use the [self-certification] form prescribed by the Government . . . and need not send copies to health insurance issuers or third-party administrators.” Ibid. This

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Court has no business rewriting administrative regulations. Yet, without pause, the Court essentially does just that.6
It is unclear why the Court goes to the lengths it does to rewrite HHS’s regulations. Presumably the Court intends to leave to the agency the task of forwarding whatever notification it receives to the respective insurer or thirdparty administrator. But the Court does not even require the religious nonprofit to identify its third-party administrator, and it neglects to explain how HHS is to identify that entity. Of course, HHS is aware of Wheaton’s thirdparty administrator in this case. But what about other cases? Does the Court intend for HHS to rely on the filing of lawsuits by every entity claiming an exemption, such that the identity of the third-party administrator will emerge in the pleadings or in discovery? Is HHS to undertake the daunting—if not impossible—task of creating a database that tracks every employer’s insurer or third-

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6 This case is crucially unlike Little Sisters of the Poor v. Sebelius, 571 U. S. ___ (2014). There, the Court issued a comparable order “based on all the circumstances of the case”—in particular, the fact that the applicants’ third-party administrator was a “church plan” that had no legal obligation or intention to provide contraceptive coverage. See Little Sisters of the Poor v. Sebelius, 2013 WL 6839900, *10–*11, *13 (D Colo., Dec. 27, 2013). As a consequence, whatever the merits of that unusual order, it did not affect any individual’s access to contraceptive coverage. Not so here. Wheaton’s third-party administrator bears the legal obligation to provide contraceptive coverage only upon receipt of a valid self-certification. See 26 CFR §54.9815–2713A(b)(2) (2013); 29 CFR §2510.3–16(b) (2013). Today’s injunction thus risks depriving hundreds of Wheaton’s employees and students of their legal entitlement to contraceptive coverage. In addition, because Wheaton is materially indistinguishable from other nonprofits that object to the Government’s accommodation, the issuance of an injunction in this case will presumably entitle hundreds or thousands of other objectors to the same remedy. The Court has no reason to think that the administrative scheme it foists on the Government today is workable or effective on a national scale.

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party administrator nationwide? And, putting that aside, why wouldn’t Wheaton’s claim be exactly the same under the Court’s newly-fashioned system? Either way, the end result will be that a third-party administrator will provide contraceptive coverage. Surely the Court and Wheaton are not just objecting to the use of one stamp instead of two in order to avail itself of the accommodation.
The Court’s actions in this case create unnecessary costs and layers of bureaucracy, and they ignore a simple truth: The Government must be allowed to handle the basic tasks of public administration in a manner that comports with common sense. It is not the business of this Court to ensnare itself in the Government’s ministerial handling of its affairs in the manner it does here.
* * *
I have deep respect for religious faith, for the important and selfless work performed by religious organizations, and for the values of pluralism protected by RFRA and the Free Exercise Clause. But the Court’s grant of an injunction in this case allows Wheaton’s beliefs about the effects of its actions to trump the democratic interest in allowing the Government to enforce the law. In granting an injunction concerning this religious nonprofit accommodation, the availability of which served as the premise for the Court’s decision in Hobby Lobby, the Court cannot possibly be applying our longstanding requirement that a party’s entitlement to relief be indisputably clear.
Our jurisprudence has over the years drawn a careful boundary between majoritarian democracy and the right of every American to practice his or her religion freely. We should not use the extraordinary vehicle of an injunction under the All Writs Act to work so fundamental a shift in that boundary. Because Wheaton cannot justify the relief it seeks, I would deny its application for an injunction, and I respectfully dissent from the Court’s refusal to do so.

Cite as: 573 U. S. ____ (2014)

17

Appendix toSoOpTiOnMioAnYOofRS, JO.T, OdMisAsYeOnRti,nJg., dissenting

APPENDIX7

——————
7 Source: United States Dept. of Labor, online at http://www.dol.gov/ ebsa/pdf/preventiveserviceseligibleorganizationcertificationform.pdf (as visited July 2, 2014, and available in Clerk of Court’s case file).

18

WHEATON COLLEGE v. BURWELL

Appendix toSoOpTiOnMioAnYOofRS, JO.T, OdMisAsYeOnRti,nJg., dissenting

 
 Case: 1:13-cv-8910 As of: 05/11/2020 03:18 PM CDT 1 of 14
SCHENKIER,TERMED
United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 6.3.2 (Chicago)
CIVIL DOCKET FOR CASE #: 1:13−cv−08910

Wheaton College v. Burwell et al Assigned to: Honorable Robert M. Dow, Jr Case in other court: 14−02396 Cause: 28:1331 Federal Question
Plaintiff
Wheaton College

Date Filed: 12/13/2013 Date Terminated: 02/22/2018 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant
represented by Adele Auxier Keim The Becket Fund 3000 K St. Nw Suite 220 Washington, DC 20007 (202) 349−7213 Email: akeim@becketfund.org PRO HAC VICE ATTORNEY TO BE NOTICED
Mark Rienzi The Becket Fund for Religious Liberty 1200 New Hampshire Ave., NW Suite 700 Washington, DC 20036 (202) 349−7208 Email: mrienzi@becketlaw.org PRO HAC VICE ATTORNEY TO BE NOTICED
Christian Mark Poland Bryan Cave Leighton Paisner LLP 161 North Clark Street #4300 Chicago, IL 60601−3206 (312) 602−5000 Email: christian.poland@bclplaw.com ATTORNEY TO BE NOTICED

V.
Defendant
Sylvia Mathews Burwell Secretary of the United States Department of Health and Human Services

represented by Emily Sue Newton U.S. Department of Justice, Civil Division, Federal Programs 20 Massachusetts Ave NW Washington, DC 20530 (202) 305−8356 Email: emily.s.newton@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie Shana Saltman U.S. Department of Justice Civil Div., Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, DC 20044 202−532−4252

Case: 1:13-cv-8910 As of: 05/11/2020 03:18 PM CDT 2 of 14

Defendant United States Department of Health and Human Services
Defendant Thomas E Perez
Defendant U.S. Department of Labor
Defendant Jacob J. Lew, Sec of US Dept of Treasury
Defendant United States Department of Treasury
Amicus American Civil Liberties Union

Email: julie.saltman@usdoj.gov TERMINATED: 10/23/2017
represented by Emily Sue Newton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie Shana Saltman (See above for address) TERMINATED: 10/23/2017
represented by Emily Sue Newton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie Shana Saltman (See above for address) TERMINATED: 10/23/2017
represented by Emily Sue Newton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie Shana Saltman (See above for address) TERMINATED: 10/23/2017
represented by Emily Sue Newton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie Shana Saltman (See above for address) TERMINATED: 10/23/2017
represented by Emily Sue Newton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie Shana Saltman (See above for address) TERMINATED: 10/23/2017
represented by Lorie Chaiten Roger Baldwin Foundation of ACLU, Inc. 150 N Michigan Ave Ste 600 Chicago, IL 60601−7570 (312) 201−9740 Email: lchaiten@aclu−il.org LEAD ATTORNEY

Case: 1:13-cv-8910 As of: 05/11/2020 03:18 PM CDT 3 of 14

Amicus
American Civil Liberties Union of Illinios

ATTORNEY TO BE NOTICED
Brigitte Amiri American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004 (212) 519−7897 Email: bamiri@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel Mach American Civil Liberties Union Foundation 915 15th Street 6th Floor Washington, DC 20005 (202) 675−2330 Email: dmach@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer Lee American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004 (212) 549−2633 Email: jlee@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Richard Muniz Roger Baldwin Foundation of ACLU, Inc. 180 N. Michigan Ave Suite 2300 Chicago, IL 60601 (312) 201−9740 Email: rmuniz@aclu−il.org ATTORNEY TO BE NOTICED
represented by Lorie Chaiten (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brigitte Amiri (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel Mach (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer Lee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:13-cv-8910 As of: 05/11/2020 03:18 PM CDT 4 of 14

Richard Muniz (See above for address) ATTORNEY TO BE NOTICED

Date Filed 12/13/2013 12/13/2013 12/13/2013 12/13/2013 12/13/2013 12/13/2013 12/17/2013
01/22/2014 01/22/2014 01/22/2014 01/23/2014 01/23/2014 01/23/2014 01/23/2014 01/23/2014 01/23/2014 01/23/2014 01/23/2014

# Docket Text
1 COMPLAINT filed by Wheaton College; Jury Demand. Filing fee $ 400, receipt number 0752−9023683. (Attachments: # 1 Exhibit s A through J)(Poland, Christian) (Entered: 12/13/2013)
2 CIVIL Cover Sheet (Poland, Christian) (Entered: 12/13/2013)
3 ATTORNEY Appearance for Plaintiff Wheaton College by Christian Mark Poland (Poland, Christian) (Entered: 12/13/2013)
4 NOTIFICATION of Affiliates pursuant to Local Rule 3.2 by Wheaton College (Poland, Christian) (Entered: 12/13/2013)
5 Notice of Claims of Unconstitutionality by Wheaton College (Poland, Christian) (Entered: 12/13/2013)
CASE ASSIGNED to the Honorable Robert M. Dow, Jr. Designated as Magistrate Judge the Honorable Sidney I. Schenkier. (nsf, ) (Entered: 12/13/2013)
SUMMONS Issued as to Jacob J. Lew, Sec of US Dept of Treasury, Thomas E Perez, Kathleen Sebelius, Sec of US Dept of Health & Human Servs., United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury,, and U.S. Attorney General (pg, ) (Entered: 12/17/2013)
6 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 50, receipt number 0752−9124370. (Keim, Adele) (Entered: 01/22/2014)
7 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 50, receipt number 0752−9125497. (Rienzi, Mark) (Entered: 01/22/2014)
8 ORDER: MOTION of Attorney Adele Auxier Keim for leave to appear pro hac vice 6 on behalf of plaintiff, Wheaton College, is granted. Signed by the Honorable Robert M. Dow, Jr on 1/22/2014. Mailed notice (ph, ) (Entered: 01/23/2014)
9 SUMMONS Returned Executed by Wheaton College as to United States Department of Health and Human Services served on 12/23/2013, answer due 2/21/2014 (Keim, Adele) (Entered: 01/23/2014)
10 SUMMONS Returned Executed by Wheaton College as to United States Department of Labor served on 12/23/2013, answer due 2/21/2014 (Keim, Adele) (Entered: 01/23/2014)
11 SUMMONS Returned Executed by Wheaton College as to Jacob J. Lew, Sec of US Dept of Treasury served on 12/23/2013, answer due 2/21/2014 (Keim, Adele) (Entered: 01/23/2014)
12 SUMMONS Returned Executed by Wheaton College as to Thomas E Perez served on 12/23/2013, answer due 2/21/2014 (Keim, Adele) (Entered: 01/23/2014)
13 SUMMONS Returned Executed by Wheaton College as to Kathleen Sebelius, Sec of US Dept of Health & Human Servs. served on 12/23/2013, answer due 2/21/2014 (Keim, Adele) (Entered: 01/23/2014)
14 SUMMONS Returned Executed by Wheaton College as to United States Department of Treasury served on 12/23/2013, answer due 2/21/2014 (Keim, Adele) (Entered: 01/23/2014)
15 SUMMONS Returned Executed by Wheaton College as to All Defendants (Keim, Adele) (Entered: 01/23/2014)
16 SUMMONS Returned Executed by Wheaton College as to All Defendants (Keim, Adele) (Entered: 01/23/2014)

Case: 1:13-cv-8910 As of: 05/11/2020 03:18 PM CDT 5 of 14

01/24/2014 02/19/2014 02/19/2014 02/19/2014 02/24/2014
02/24/2014
04/01/2014 04/01/2014 04/01/2014
04/01/2014
04/01/2014

17 ORDER: MOTION of attorney Mark Rienzi for Leave to Appear Pro Hac Vice 7 on behalf of Plaintiff Wheaton College is granted. Signed by the Honorable Robert M. Dow, Jr on 1/24/2014. Mailed notice (ao,) (Entered: 01/27/2014)
18 ATTORNEY Appearance for Defendants Jacob J. Lew, Sec of US Dept of Treasury, Thomas E Perez, Kathleen Sebelius, Sec of US Dept of Health & Human Servs., United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury by Julie Shana Saltman (Saltman, Julie) (Entered: 02/19/2014)
19 MOTION by Defendants Jacob J. Lew, Sec of US Dept of Treasury, Thomas E Perez, Kathleen Sebelius, Sec of US Dept of Health & Human Servs., United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury for extension of time to file answer regarding complaint 1 (Unopposed) (Attachments: # 1 Text of Proposed Order)(Saltman, Julie) (Entered: 02/19/2014)
20 NOTICE of Motion by Julie Shana Saltman for presentment of motion for extension of time to file answer, motion for relief,, 19 before Honorable Robert M. Dow Jr. on 2/25/2014 at 09:15 AM. (Saltman, Julie) (Entered: 02/19/2014)
21 MINUTE entry before the Honorable Robert M. Dow, Jr: Initial Status hearing set for 4/8/2014 at 09:00 AM. and parties are to report the following: (1) Possibility of settlement in the case; (2) If no possibility of settlement exists, the nature and length of discovery necessary to get the case ready for trial. Plaintiff is to advise all other parties of the courts action herein. Lead counsel is directed to appear at this status hearing. Parties to prepare and submit a joint status report at least two days prior to set status. (See Judges web page for status report). Mailed notice (tbk, ) (Entered: 02/24/2014)
22 MINUTE entry before the Honorable Robert M. Dow, Jr: Unopposed MOTION by Defendants Jacob J. Lew, Sec of US Dept of Treasury, Thomas E Perez, Kathleen Sebelius, Sec of US Dept of Health & Human Servs., United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury for extension of time 19 to file respond to the complaint is granted to and including 4/1/2014. Notice of Motion date of 2/25/2014 is stricken and no appearances are necessary on that date. Mailed notice (tbk, ) (Entered: 02/24/2014)
23 NOTICE by All Defendants of Filing of Administrative Record (Saltman, Julie) (Entered: 04/01/2014)
24 MOTION by Defendants Jacob J. Lew, Sec of US Dept of Treasury, Thomas E Perez, Kathleen Sebelius, Sec of US Dept of Health & Human Servs., United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury for leave to file excess pages Unopposed (Saltman, Julie) (Entered: 04/01/2014)
25 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM, MOTION by Defendants Jacob J. Lew, Sec of US Dept of Treasury, Thomas E Perez, United States Department of Health and Human Services, United States Department of Treasury, Kathleen Sebelius, Sec of US Dept of Health & Human Servs., United States Department of Labor to dismiss for lack of jurisdiction Count XIV, MOTION by Defendants Jacob J. Lew, Sec of US Dept of Treasury, Thomas E Perez, United States Department of Health and Human Services, United States Department of Treasury, Kathleen Sebelius, Sec of US Dept of Health & Human Servs., United States Department of Labor for summary judgment in the alternative (Saltman, Julie) (Entered: 04/01/2014)
26 MEMORANDUM by Jacob J. Lew, Sec of US Dept of Treasury, Thomas E Perez, Kathleen Sebelius, Sec of US Dept of Health & Human Servs., United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury in support of Motion to Dismiss for Failure to State a Claim,,, motion to dismiss/lack of jurisdiction,,, motion for summary judgment,, 25 (Attachments: # 1 Attachment 1, # 2 Attachment 2)(Saltman, Julie) (Entered: 04/01/2014)
27 NOTICE of Motion by Julie Shana Saltman for presentment of Motion to Dismiss for Failure to State a Claim,,, motion to dismiss/lack of jurisdiction,,, motion for summary judgment,, 25 , motion for leave to file excess pages, 24 before Honorable Robert M.

Case: 1:13-cv-8910 As of: 05/11/2020 03:18 PM CDT 6 of 14

04/02/2014 04/02/2014 04/02/2014 04/02/2014 04/02/2014 04/02/2014 04/02/2014 04/02/2014
04/04/2014
04/04/2014 04/04/2014
04/08/2014 04/08/2014

Dow Jr. on 4/8/2014 at 09:15 AM. (Saltman, Julie) (Entered: 04/01/2014)
28 ATTORNEY Appearance for Amicus Parties American Civil Liberties Union, American Civil Liberties Union of Illinios by Lorie Chaiten (Chaiten, Lorie) (Entered: 04/02/2014)
29 ATTORNEY Appearance for Amicus Parties American Civil Liberties Union, American Civil Liberties Union of Illinios by Richard Muniz (Muniz, Richard) (Entered: 04/02/2014)
30 MOTION by Amicus Parties American Civil Liberties Union, American Civil Liberties Union of Illinios for leave to file BRIEF OF AMICI CURIAE (Attachments: # 1 Brief of amici curiae)(Chaiten, Lorie) (Entered: 04/02/2014)
31 NOTICE of Motion by Lorie Chaiten for presentment of motion for leave to file 30 before Honorable Robert M. Dow Jr. on 4/8/2014 at 09:15 AM. (Chaiten, Lorie) (Entered: 04/02/2014)
32 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 50, receipt number 0752−9352990. (Amiri, Brigitte) (Entered: 04/02/2014)
33 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 50, receipt number 0752−9353033. (Lee, Jennifer) (Entered: 04/02/2014)
34 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 50, receipt number 0752−9353098. (Mach, Daniel) (Entered: 04/02/2014)
35 RULE 56 56.1(a)(3) Statement by Jacob J. Lew, Sec of US Dept of Treasury, Thomas E Perez, Kathleen Sebelius, Sec of US Dept of Health & Human Servs., United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury regarding Motion to Dismiss for Failure to State a Claim,,, motion to dismiss/lack of jurisdiction,,, motion for summary judgment,, 25 (Saltman, Julie) (Entered: 04/02/2014)
36 ORDER: MOTIONS of Attorneys Brigitte Amiri, Jennifer Lee, and Daniel Mach, for leave to appear pro hac vice 32 33 34 , on behalf of defendants American Civil Liberties Union and American Civil Liberties Union of Illinios, is granted. Signed by the Honorable Robert M. Dow, Jr on 4/4/2014. Mailed notice (ph, ) (Entered: 04/04/2014)
37 STATUS Report by Wheaton College (Rienzi, Mark) (Entered: 04/04/2014)
38 CERTIFIED COPY OF ADMINISTRATIVE RECORD by Defendants Jacob J. Lew, Sec of US Dept of Treasury, Thomas E Perez, Kathleen Sebelius, Sec of US Dept of Health & Human Servs., United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury (Attachments: # 1 Supplement, # 2 Supplement, # 3 Supplement, # 4 Supplement, # 5 Supplement, # 6 Supplement, # 7 Supplement, # 8 Supplement, # 9 Supplement, # 10 Supplement)(Saltman, Julie) (Entered: 04/04/2014)
39 MEMORANDUM by American Civil Liberties Union, American Civil Liberties Union of Illinios in support of Motion to Dismiss for Failure to State a Claim,,, motion to dismiss/lack of jurisdiction,,, motion for summary judgment,, 25 AMICI CURIAE BRIEF (Chaiten, Lorie) (Entered: 04/08/2014)
40 MINUTE entry before the Honorable Robert M. Dow, Jr: Status hearing held on 4/8/2014. MOTION to file a memorandum of law in support of its Motion to Dismiss and, in the alternative, Motion for Summary Judgment in excess 24 of the 15−page limit provided by Local Rule 7.1., is granted. MOTION of American Civil Liberties Union and American Civil Liberties Union of Illinois, for leave to file 30 a brief amicus curiae, is granted.Plaintiff is given until 4/22/2014 in which to respond to Defendants motion to dismiss or for summary judgment and to file its cross motion for summary judgment; Government's given until 5/13/2014 to file reply brief in support of it's motion and a response brief in opposition to Plaintiff's cross−motion for summary judgment; Plaintiff is given until 5/19/2014 to file reply brief. Mailed notice (tbk, ) (Entered: 04/08/2014)

Case: 1:13-cv-8910 As of: 05/11/2020 03:18 PM CDT 7 of 14

04/22/2014
04/22/2014 04/22/2014 04/23/2014 05/13/2014
05/13/2014 05/15/2014 05/15/2014 05/15/2014
05/16/2014 05/19/2014
05/19/2014

41 MOTION by Plaintiff Wheaton College for summary judgment and Opp. to Def's Mot. to Dismiss (Attachments: # 1 Declaration Ex. A Ryken Decl., # 2 Exhibit Ex. A−1, # 3 Exhibit Ex. A−2, # 4 Exhibit Ex. A−3, # 5 Declaration Ex. B Keim MSJ Decl., # 6 Exhibit Ex. B−1, # 7 Exhibit Ex. B−2, # 8 Exhibit Ex. B−3, # 9 Exhibit Ex. B−4, # 10 Exhibit Ex. B−5, # 11 Exhibit Ex. B−6, # 12 Exhibit Ex. B−7, # 13 Exhibit Ex. B−8, # 14 Exhibit Ex. B−9, # 15 Exhibit Ex. B−10, # 16 Exhibit Ex. B−11, # 17 Exhibit Ex. B−12, # 18 Exhibit Ex. B−13)(Rienzi, Mark) (Entered: 04/22/2014)
42 RULE 56 c Statement by Wheaton College regarding motion for summary judgment,, 41 and Response to Def's Rule 56 Statement (Rienzi, Mark) (Entered: 04/22/2014)
43 MOTION by Plaintiff Wheaton CollegeFRCP 56(d) Relief (Attachments: # 1 Declaration Ex. C Keim 56d, # 2 Exhibit C−1)(Rienzi, Mark) (Entered: 04/22/2014)
44 MOTION by Plaintiff Wheaton College for summary judgment and Opp. to Def's Mot. to Dismiss (Rienzi, Mark) (Entered: 04/23/2014)
45 MOTION by Defendants Jacob J. Lew, Sec of US Dept of Treasury, Thomas E Perez, Kathleen Sebelius, Sec of US Dept of Health & Human Servs., United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury for extension of time to file response/reply as to Rule 56 statement 42 , motion for miscellaneous relief 43 , motion for summary judgment,, 41 Unopposed (Attachments: # 1 Text of Proposed Order)(Saltman, Julie) (Entered: 05/13/2014)
46 NOTICE by All Defendants re MOTION by Defendants Jacob J. Lew, Sec of US Dept of Treasury, Thomas E Perez, Kathleen Sebelius, Sec of US Dept of Health & Human Servs., United States Department of Health and Human Services, United States Department of Labor, United States Department 45 (Saltman, Julie) (Entered: 05/13/2014)
47 RESPONSE by Defendants Jacob J. Lew, Sec of US Dept of Treasury, Thomas E Perez, Kathleen Sebelius, Sec of US Dept of Health & Human Servs., United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury to Rule 56 statement 42 (Saltman, Julie) (Entered: 05/15/2014)
48 RESPONSE by Jacob J. Lew, Sec of US Dept of Treasury, Thomas E Perez, Kathleen Sebelius, Sec of US Dept of Health & Human Servs., United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasuryin Opposition to MOTION by Plaintiff Wheaton CollegeFRCP 56(d) Relief 43 (Saltman, Julie) (Entered: 05/15/2014)
49 MEMORANDUM by Jacob J. Lew, Sec of US Dept of Treasury, Thomas E Perez, Kathleen Sebelius, Sec of US Dept of Health & Human Servs., United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury in Opposition to motion for summary judgment 44 , motion for summary judgment,, 41 and Reply in Support of Defendants' Motion to Dismiss and, in the alternative, for Summary Judgment (Attachments: # 1 Exhibit A)(Saltman, Julie) (Entered: 05/15/2014)
50 NOTICE of Motion by Julie Shana Saltman for presentment of motion for extension of time to file response/reply,, motion for relief,,,,, 45 before Honorable Robert M. Dow Jr. on 5/21/2014 at 09:15 AM. (Saltman, Julie) (Entered: 05/16/2014)
51 MINUTE entry before the Honorable Robert M. Dow, Jr: MOTION by Defendants Jacob J. Lew, Sec of US Dept of Treasury, Thomas E Perez, Kathleen Sebelius, Sec of US Dept of Health & Human Servs., United States Department of Health and Human Services, United States Department of Labor, United States Department 45 two−day extension, to and including May 15, 2014, of the deadline to file their response to the plaintiffs cross−motion for summary judgment and motion for relief under Rule 56(d), Granted. Notice of Motion date of 5/21/2014 is stricken and no appearances are necessary on that date. Mailed notice (tbk, ) (Entered: 05/19/2014)
52 REPLY by Plaintiff Wheaton College in support of motion for summary judgment (Rienzi, Mark) (Entered: 05/19/2014)

Case: 1:13-cv-8910 As of: 05/11/2020 03:18 PM CDT 8 of 14

05/19/2014 06/05/2014 06/05/2014 06/06/2014 06/09/2014
06/10/2014 06/13/2014 06/16/2014 06/17/2014 06/23/2014
06/24/2014 06/24/2014 06/26/2014

53 REPLY by Plaintiff Wheaton College in support of Rule 56(d) motion (Rienzi, Mark) (Entered: 05/19/2014)
54 MINUTE entry before the Honorable Robert M. Dow, Jr: Status hearing set for 6/13/2014 at 11:00 AM. Mailed notice (tbk, ) (Entered: 06/05/2014)
55 MINUTE entry before the Honorable Robert M. Dow, Jr: Telephone Status hearing set for 6/9/2014 at 01:30 AM. Status hearing date of 6/13/2014 is stricken. Mailed notice (tbk, ) (Entered: 06/05/2014)
56 Notice of Supplemental Authority by Wheaton College (Attachments: # 1 Exhibit D, # 2 Exhibit E)(Rienzi, Mark) (Entered: 06/06/2014)
57 ORDER; Status hearing held with counsel for Plaintiff and Defendants appearing by telephone. Plaintiff's oral motion for preliminary injunction is taken under advisement. As discussed on the record, Plaintiff is to submit supplemental brief in support of motion for preliminary injunction by 6/10/2014; Defendants are to submit supplemental brief in opposition to motion for preliminary injunction by 6/13/2014. The Court will set the matter for hearing or issue a ruling by mail on the motion for preliminary injunction and will issue a ruling in advance of the July 1 compliance deadline. The Court will set this case for further status hearing shortly after the Supreme Court issues its decision in the Hobby Lobby and Conestoga Wood cases. Finally, given the swearing−in today of Sylvia Mathews Burwell as Secretary of the United States Department of Health and Human Services, Secretary Burwell is substituted as a party in place of her predecessor, former Secretary Kathleen Sebelius, and the caption in this case going forward will so reflect that substitution of party pursuant to Federal Rule of Civil Procedure 25(d). Signed by the Honorable Robert M. Dow, Jr on 6/9/2014. Mailed notice. (ea, ) (Entered: 06/10/2014)
58 MOTION by Plaintiff Wheaton College for preliminary injunction and brief in support (Attachments: # 1 Exhibit A)(Rienzi, Mark) (Entered: 06/10/2014)
59 RESPONSE by Sylvia Mathews Burwell, Jacob J. Lew, Sec of US Dept of Treasury, Thomas E Perez, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasuryin Opposition to MOTION by Plaintiff Wheaton College for preliminary injunction and brief in support 58 (Saltman, Julie) (Entered: 06/13/2014)
60 REPLY by Plaintiff Wheaton College to motion for preliminary injunction 58 , response in opposition to motion, 59 (Rienzi, Mark) (Entered: 06/16/2014)
61 Notice of Supplemental Authority by Sylvia Mathews Burwell, Jacob J. Lew, Sec of US Dept of Treasury, Thomas E Perez, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury (Attachments: # 1 Exhibit)(Saltman, Julie) (Entered: 06/17/2014)
62 MEMORANDUM OPINION AND ORDER: For the reasons stated below, the Court respectfully denies Plaintiff's motions for preliminary injunction 57 , 58 . To the extent that Hobby Lobby and Conestoga call into question any material aspect of the Seventh Circuits controlling decision in University of NotreDame v. Sebelius, 743 F.3d 547 (7th Cir. 2014), any party may file a motion for reconsideration of this order. This order is also subject to reconsideration on the Courts own motion. This matter is set for a telephonic status conference on 6/30/2014 at 10:00a.m. Signed by the Honorable Robert M. Dow, Jr on 6/23/2014. Mailed notice(tbk, ) (Entered: 06/23/2014)
63 MINUTE entry before the Honorable Robert M. Dow, Jr: Telephone status hearing held. Plaintiff indicates that it wishes to file a motion for reconsideration and will file its motion and brief in support on 6/24/2014; Defendants are given until 12:00 noon on 6/27/2014 to file response. The case remains set for telephone status on 6/30/2014 at 10:00 a.m. Counsel will call chambers. Mailed notice (tbk, ) (Entered: 06/24/2014)
64 MOTION by Plaintiff Wheaton College for reconsideration of preliminary injunction request (Attachments: # 1 Exhibit Ex. A−−Little Sisters Notice)(Rienzi, Mark) (Entered: 06/24/2014)
65 NOTICE of appeal by Wheaton College regarding orders 62 Filing fee $ 505, receipt number 0752−9615154. (Rienzi, Mark) (Entered: 06/26/2014)

Case: 1:13-cv-8910 As of: 05/11/2020 03:18 PM CDT 9 of 14

06/26/2014 06/26/2014 06/27/2014
06/27/2014 06/27/2014 06/28/2014 06/30/2014
06/30/2014
07/11/2014 07/14/2014 07/15/2014 07/15/2014 07/15/2014 07/15/2014 08/18/2014 09/08/2014 10/23/2014

66 NOTICE of Appeal Due letter sent to counsel of record regarding notice of appeal 65 . (smm) (Entered: 06/26/2014)
67 TRANSMITTED to the 7th Circuit the short record on notice of appeal 65 . Notified counsel (smm) (Entered: 06/26/2014)
68 MEMORANDUM by Sylvia Mathews Burwell, Jacob J. Lew, Sec of US Dept of Treasury, Thomas E Perez, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury in Opposition to motion for reconsideration 64 (Saltman, Julie) (Entered: 06/27/2014)
69 NOTICE by Wheaton College of supplemental authority (Attachments: # 1 Exhibit CA 3 Order)(Rienzi, Mark) (Entered: 06/27/2014)
70 ACKNOWLEDGMENT of receipt of short record on appeal regarding notice of appeal 65 ; USCA Case No. 14−2396. (ea, ) (Entered: 06/27/2014)
71 REPLY by Plaintiff Wheaton College to memorandum in opposition to motion, 68 , motion for reconsideration 64 (Rienzi, Mark) (Entered: 06/28/2014)
72 ORDER: For the reasons stated below, Plaintiff's emergency motion for reconsideration or, in the alternative, for injunction pending appeal 64 is respectfully denied. Signed by the Honorable Robert M. Dow, Jr on 6/30/2014. Mailed notice(tbk, ) (Entered: 06/30/2014)
73 ORDER dated 6/30/14 from the Seventh Circuit regarding notice of appeal 65 ; Appellate case no. : 14−2396. The following is before the court: WHEATON COLLEGE'S EMERGENCY MOTION FOR INJUNCTION PENDING APPEAL − RELIEF REQUESTED BY JUNE 30, 2014, filed on June 26, 2014, by counsel for Appellant Wheaton College. On the basis of this court's decision in Notre Dame v. Sebelius, 743 F.3d 547 (7th Cir. 2014), we believe that the appellant has not shown that it is likely to prevail on the merits. And the decision today by the United States Supreme Court in Burwell v. Hobby Lobby Stores, Inc., −−−U.S.−−−, slip op. (June 30, 2014), emphasizes that the accommodation provision (applicable in this case) "constitutes an alternative that achieves all of the Government's aims while providing greater respect for religious liberty." Id. at 3. IT IS ORDERED that the emergency motion for injunction pending appeal is therefore DENIED. (ea, ) (Entered: 07/01/2014)
74 MINUTE entry before the Honorable Robert M. Dow, Jr: Status hearing set for 7/15/2014 at 09:00 AM. Mailed notice (tbk, ) (Entered: 07/11/2014)
75 MINUTE entry before the Honorable Robert M. Dow, Jr: The time of the Status hearing set for 7/15/2014 is reset to 10a.m. Mailed notice (tbk, ) (Entered: 07/14/2014)
76 MINUTE entry before the Honorable Robert M. Dow, Jr: Phone Status hearing held on 7/15/2014. Further Phone Status hearing set for 8/18/2014 at 10:30 AM. Mailed notice (tbk, ) (Entered: 07/15/2014)
77 TRANSMITTED to the USCA for the 7th Circuit the long record on appeal 65 (USCA no. 14−2396). (smm) (Entered: 07/15/2014)
78 USCA RECEIVED on 7/15/14 the long record regarding notice of appeal 65 . (smm) (Entered: 07/15/2014)
79 SEVENTH CIRCUIT transcript information sheet by Wheaton College (Keim, Adele) (Entered: 07/15/2014)
80 MINUTE entry before the Honorable Robert M. Dow, Jr: Phone Status hearing held on 8/18/2014. Further phone Status hearing set for 9/8/2014 at 09:30 AM. Mailed notice(tbk, ) (Entered: 08/18/2014)
81 MINUTE entry before the Honorable Robert M. Dow, Jr: Phone Status hearing held on 9/8/2014. Further phone Status hearing set for 10/23/2014 at 09:45 AM. Mailed notice (tbk, ) (Entered: 09/08/2014)
82 MINUTE entry before the Honorable Robert M. Dow, Jr: Phone Status hearing held on 10/23/2014. Further phone Status hearing set for 11/25/2014 at 11:00 AM. Mailed notice (tbk, ) (Entered: 10/23/2014)

Case: 1:13-cv-8910 As of: 05/11/2020 03:18 PM CDT 10 of 14

11/24/2014 01/08/2015 02/17/2015
03/11/2015 03/23/2015
05/12/2015 05/12/2015 05/21/2015
08/24/2015 08/24/2015 08/24/2015 11/25/2015 11/25/2015 12/02/2015
07/25/2016

83 MINUTE entry before the Honorable Robert M. Dow, Jr: Phone status hearing date of 11/25/2014 is stricken and phone status reset to 1/7/2015 at 10:30a.m. Parties to call chambers (312−435−5665) on a conference call. Mailed notice (tbk, ) (Entered: 11/24/2014)
84 MINUTE entry before the Honorable Robert M. Dow, Jr: Phone conference held and continued to 2/17/2015 at 10:00 a.m. Parties to call chambers (312−435−5665) on a conference call. Mailed notice (cdh, ) (Entered: 01/08/2015)
85 MINUTE entry before the Honorable Robert M. Dow, Jr: Phone conference held and continued to 3/23/2015 at 10:00 a.m. Parties to call chambers (312−435−5665) on a conference call. Pending motions [25, 41, 43, 44] are stricken without prejudice to being refiled at a later date. Parties are requested to file a joint status report when the Supreme Court issues an order on the Notre Dame case. Mailed notice (cdh, ) (Entered: 02/17/2015)
86 STATUS Report , Filed Jointly by Defendants and by Wheaton College (Attachments: # 1 Exhibit)(Rienzi, Mark) (Entered: 03/11/2015)
87 ORDER: Telephone status hearing held. This Court will await the rulings from the Seventh Circuit Court of Appeals on the two pending appeals. In the event of a ruling on either motion, the parties shall notify the Court in writing. Signed by the Honorable Robert M. Dow, Jr on 3/23/2015. Mailed notice. (as, ) Modified on 4/2/2015 (cdh, ). (Entered: 04/01/2015)
88 NOTICE to Transmit Record on Appeal regarding notice of appeal 65 ; USCA Case No. 14−2396. (as, ) (Entered: 05/13/2015)
89 ORDER dated 05/12/2015 from the 7th Circuit regarding notice of appeal 65 ; Appellate case no. : 14−2396. IT IS ORDERED that the motion is GRANTED. The case will be orally argued on June 10, 2015 at 9:00 a.m. (as, ) (Entered: 05/13/2015)
90 CERTIFIED copy of order dated 5/21/2015 from the USCA 7th Circuit regarding notice of appeal 65 ; Appellate case no. : 14−2396. IT IS ORDERED that the motions for leave to file amici curiae briefs are GRANTED. The clerk of the court shall file INSTANTER the briefs tendered by the National Health Law Program, et al., and The National Women's Law Center and 11 Other National, Regional, and State Organizations. The brief tendered by Americans United for Separation of Church and State, et al., is missing the required disclosure statement within the brief. An amici curiae brief with the disclosure statement shall be filed by May 21, 2015. (kp, ) (Entered: 05/22/2015)
91 LETTER from the Seventh Circuit returning the record on appeal in USCA no. 14−2396 no record to be returned. (sr, ) (Entered: 08/25/2015)
92 MANDATE of USCA dated 07/01/2015 regarding notice of appeal 65 ; USCA No. 14−2396. The judgment of the District Court is AFFIRMED, with costs, in accordance with the decision of this court entered on this date. (sr, ) (Entered: 08/25/2015)
93 OPINION from the USCA for the Seventh Circuit; Argued 06/10/2015; Decided 07/01/2015 in USCA case no. 14−2396 (sr, ) (Entered: 08/25/2015)
94 MOTION by Plaintiff Wheaton College to stay JOINT STATUS REPORT AND JOINT MOTION TO STAY CASE (Poland, Christian) (Entered: 11/25/2015)
95 NOTICE OF JOINT MOTION −− NOTICE of Motion by Christian Mark Poland for presentment of motion to stay 94 before Honorable Robert M. Dow Jr. on 12/3/2015 at 09:15 AM. (Poland, Christian) (Entered: 11/25/2015)
96 MINUTE entry before the Honorable Robert M. Dow, Jr: The joint motion to stay the case 94 is granted. Parties anticipate a ruling from the Supreme Court in the Little Sisters cases in or before June 2016. A status hearing set for 7/27/2016 at 9:00 a.m. to determine how this case should proceed thereafter. No appearances are necessary on 12/3/2015. Mailed notice (cdh, ) (Entered: 12/02/2015)
97 MINUTE entry before the Honorable Robert M. Dow, Jr: By agreement of the parties, status hearing set for 7/27/2016 at 9:00 a.m. is converted to a telephonic status hearing and reset to 7/27/2016 at 9:45 a.m Mailed notice (cdh, ) (Entered: 07/25/2016)

Case: 1:13-cv-8910 As of: 05/11/2020 03:18 PM CDT 11 of 14

07/27/2016 10/18/2016 12/15/2016 12/16/2016 03/22/2017 04/10/2017 05/22/2017 05/22/2017 06/19/2017
07/21/2017 10/02/2017 10/23/2017
10/30/2017 11/13/2017 11/30/2017 12/15/2017

98 MINUTE entry before the Honorable Robert M. Dow, Jr: Telephone status conference held and continued to 10/18/2016 at 10:30 a.m. Counsel to e−mail the courtroom deputy 3 days before the conference with a call−in phone number. Mailed notice (cdh, ) (Entered: 07/27/2016)
99 MINUTE entry before the Honorable Robert M. Dow, Jr: Telephone conference call held. Settlement discussions are ongoing. Parties to file a joint status report by 12/15/2016. Mailed notice (cdh, ) (Entered: 10/21/2016)
100 STATUS Report Jointly filed by Wheaton College (Rienzi, Mark) (Entered: 12/15/2016)
101 MINUTE entry before the Honorable Robert M. Dow, Jr: Upon review of the parties' joint status report 100 , the Court accepts the parties' request for a further stay of proceedings. The Court requests that the parties file a revised joint status report no later than 3/22/2017. Mailed notice (cdh, ) (Entered: 12/16/2016)
102 STATUS Report Jointly filed by Wheaton College (Rienzi, Mark) (Entered: 03/22/2017)
103 MINUTE entry before the Honorable Robert M. Dow, Jr: Upon review of the parties' joint status report 102 , the Court concurs in the parties' request to extend the stay of this litigation and to direct the parties to file an updated joint status report on 5/22/2017. Mailed notice (cdh, ) (Entered: 04/10/2017)
104 STATUS Report by Sylvia Mathews Burwell, Jacob J. Lew, Sec of US Dept of Treasury, Thomas E Perez, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury (Saltman, Julie) (Entered: 05/22/2017)
105 NOTICE by All Plaintiffs Status Report (Rienzi, Mark) (Entered: 05/22/2017)
106 MINUTE entry before the Honorable Robert M. Dow, Jr: Upon review of the status reports [104, 105] submitted on May 22, 2017, and the Seventh Circuit's recent orders in Appeal Nos. 13−3853 and 14−1430, the Court extends the current stay and directs the parties to file a joint status report no later than 7/21/2017. Mailed notice (cdh, ) (Entered: 06/19/2017)
107 STATUS Report Jointly filed by Wheaton College (Rienzi, Mark) (Entered: 07/21/2017)
108 MINUTE entry before the Honorable Robert M. Dow, Jr: Consistent with the Court of Appeals' order in Appeal No. 14−1430, the Court requests that the parties file an updated status report by 10/30/2017. In the meantime, the case remains stayed. Mailed notice (cdh, ) (Entered: 10/02/2017)
109 WITHDRAWING Julie Saltman as counsel for Defendants Sylvia Mathews Burwell, Jacob J. Lew, Sec of US Dept of Treasury, Thomas E Perez, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury and substituting Emily Sue Newton as counsel of record (Newton, Emily) (Entered: 10/23/2017)
110 STATUS Report by United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury (Newton, Emily) (Entered: 10/30/2017)
111 MINUTE entry before the Honorable Robert M. Dow, Jr: Upon review of the parties' recent joint status report [see 110], this case remains stayed and the parties are directed to file an updated joint status report no later than 11/30/2017. Mailed notice (cdh, ) (Entered: 11/13/2017)
112 STATUS Report by Jacob J. Lew, Sec of US Dept of Treasury, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury (Newton, Emily) (Entered: 11/30/2017)
113 MINUTE entry before the Honorable Robert M. Dow, Jr: Upon review of the parties' recent joint status report [see 112], this case remains stayed and the parties are directed to file an updated joint status report no later than 1/5/2018. Mailed notice (cdh, ) (Entered: 12/15/2017)

Case: 1:13-cv-8910 As of: 05/11/2020 03:18 PM CDT 12 of 14

01/05/2018 01/10/2018
01/18/2018 02/01/2018 02/08/2018 02/22/2018 02/22/2018
02/22/2018 03/07/2018 03/12/2018
03/12/2018 03/29/2018 04/02/2018 04/02/2018
04/25/2018 04/25/2018 04/26/2018

114 STATUS Report Joint Status Report by Wheaton College (Rienzi, Mark) (Entered: 01/05/2018)
115 MINUTE entry before the Honorable Robert M. Dow, Jr: Upon review of the parties' joint status report 114 , the Court lifts the stay and adopts the parties' proposed briefing schedule: Plaintiffs' motion for permanent injunction is due on 1/18/2018; Defendants' response is due on 2/1/2018; Plaintiffs' reply is due on 2/8/2018. The Court will either issue a ruling by mail or set the case for further hearing after it reviews the briefs. Mailed notice (cdh, ) (Entered: 01/10/2018)
116 MOTION by Plaintiff Wheaton College for permanent injunction (Attachments: # 1 Text of Proposed Order)(Rienzi, Mark) (Entered: 01/18/2018)
117 RESPONSE by Defendants United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury to motion for permanent injunction 116 (Newton, Emily) (Entered: 02/01/2018)
118 REPLY by Wheaton College to Response 117 , MOTION by Plaintiff Wheaton College for permanent injunction 116 (Rienzi, Mark) (Entered: 02/08/2018)
119 ORDER GRANTING PERMANENT INJUNCTION AND DECLARATORY RELIEF Signed by the Honorable Robert M. Dow, Jr. on 2/22/2018. Mailed notice(cdh, ) (Entered: 02/22/2018)
120 MINUTE entry before the Honorable Robert M. Dow, Jr: In view of the entry of a permanent injunction 119 on Count I, and consistent with the position articulated by the parties in their most recent joint status report [see 114, at 2], the remainder of the live claims in Plaintiff's complaint (Counts II−XVI) are dismissed as moot. A final judgment under FRCP 58 will be entered in favor of Plaintiff and against Defendants on Count I only and this civil case will be terminated. Mailed notice (cdh, ) (Entered: 02/22/2018)
121 JUDGMENT IN A CIVIL CASE. Mailed notice(cdh, ) (Entered: 02/22/2018)
122 MOTION by Plaintiff Wheaton College for extension of time (Rienzi, Mark) (Entered: 03/07/2018)
123 ORDER GRANTING WHEATON COLLEGE'S UNOPPOSED MOTION FOR EXTENSION OF DEADLINES PERTAINING TO PROCESS FOR AWARDING ATTORNEYS FEES AND COSTS Signed by the Honorable Robert M. Dow, Jr. on 3/12/2018. Mailed notice(cdh, ) (Entered: 03/12/2018)
124 MINUTE entry before the Honorable Robert M. Dow, Jr: Wheaton College's unopposed motion for extension of deadlines pertaining to process for awarding attorneys fees and cost 122 is granted. Mailed notice (cdh, ) (Entered: 03/12/2018)
125 MOTION by Plaintiff Wheaton College for extension of time (Rienzi, Mark) (Entered: 03/29/2018)
126 NOTICE of Motion by Mark Rienzi for presentment of extension of time 125 before Honorable Robert M. Dow Jr. on 4/4/2018 at 09:15 AM. (Rienzi, Mark) (Entered: 04/02/2018)
127 MINUTE entry before the Honorable Robert M. Dow, Jr: Motion by Plaintiff Wheaton College for extension of time 125 is granted. Notice of motion date of 4/4/2018 is stricken and no appearances are necessary on that date. Mailed notice (cdh, ) (Entered: 04/02/2018)
128 MOTION by Plaintiff Wheaton College for extension of time (Rienzi, Mark) (Entered: 04/25/2018)
129 NOTICE of Motion by Mark Rienzi for presentment of extension of time 128 before Honorable Robert M. Dow Jr. on 5/1/2018 at 09:15 AM. (Rienzi, Mark) (Entered: 04/25/2018)
130 STATUS Report by United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury (Newton, Emily) (Entered: 04/26/2018)

Case: 1:13-cv-8910 As of: 05/11/2020 03:18 PM CDT 13 of 14

04/30/2018 05/01/2018
05/03/2018 05/17/2018 07/17/2018
09/07/2018 09/07/2018 09/11/2018 09/12/2018
09/12/2018 10/19/2018 10/23/2018 10/23/2018
11/07/2018
11/07/2018

131 MINUTE entry before the Honorable Robert M. Dow, Jr: Notice of motion date of 5/1/2018 is stricken. Motion 128 is reset to 5/2/2018 at 9:15 a.m. For further details see Judge Dow's Web page or Notice of Judicial Absences. Mailed notice (cdh, ) (Entered: 04/30/2018)
132 MINUTE entry before the Honorable Robert M. Dow, Jr: Wheaton College's unopposed third motion for extension of deadlines pertaining to process for awarding attorneys' fees and costs 128 is granted. Notice of motion date of 5/2/2018 is stricken an no appearances are necessary on that date. Mailed notice (cdh, ) (Entered: 05/01/2018)
133 NOTICE by Christian Mark Poland of Change of Address /Firm Name Change Only (Poland, Christian) (Entered: 05/03/2018)
134 STATUS Report by Wheaton College (Rienzi, Mark) (Entered: 05/17/2018)
135 MINUTE entry before the Honorable Robert M. Dow, Jr: Upon review of the parties' joint status report 134 , the Court adopts the parties' proposed schedule. If the parties are not able to resolve the disputed issues without motion practice, the Court will issue a ruling by mail on any motion for fees that Plaintiff may file. Mailed notice (cdh, ) (Entered: 07/17/2018)
136 MOTION by Plaintiff Wheaton College for attorney fees (Attachments: # 1 Memo in Support, # 2 Appendix)(Rienzi, Mark) (Entered: 09/07/2018)
137 NOTICE of Motion by Mark Rienzi for presentment of before Honorable Robert M. Dow Jr. on 9/13/2018 at 09:15 AM. (Rienzi, Mark) (Entered: 09/07/2018)
138 MOTION by Defendants United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury to vacate presentment hearing and extend briefing deadlines (Attachments: # 1 Text of Proposed Order)(Newton, Emily) (Entered: 09/11/2018)
139 MINUTE entry before the Honorable Robert M. Dow, Jr: In view of the adoption of the parties' proposed schedule [see 135], Plaintiff's motion for attorneys' fees 136 is taken under advisement; response is due on 9/28/2018; reply is due on 10/19/2018. The Court will issue a ruling by mail. Notice of motion date of 9/13/2018 is stricken and no appearances are necessary on that date. Mailed notice (cdh, ) (Entered: 09/12/2018)
140 MINUTE entry before the Honorable Robert M. Dow, Jr: Joint motion to vacate presentment hearing and Defendants' unopposed motion to extend briefing deadlines 138 filed on 9/11/2018 is granted. Mailed notice (cdh, ) (Entered: 09/12/2018)
141 MOTION by Defendants United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury for extension of time to brief Plaintiff's motion for attorney's fees (Attachments: # 1 Notice of Filing, # 2 Text of Proposed Order)(Newton, Emily) (Entered: 10/19/2018)
142 NOTICE of Motion by Emily Sue Newton for presentment of extension of time, 141 before Honorable Robert M. Dow Jr. on 10/24/2018 at 08:30 AM. (Newton, Emily) (Entered: 10/23/2018)
143 MINUTE entry before the Honorable Robert M. Dow, Jr: Joint motion to extend briefing schedule 141 is granted. Defendants' response to Plaintiff's motion for attorney's fees and related nontaxable expenses are due 11/8/2018. Plaintiff's reply in support of its motion for attorney's fees and related nontaxable expenses are due 11/29/2018. Notice of motion date of 10/24/2018 is stricken and no appearances are necessary on that date. Mailed notice (cdh, ) (Entered: 10/23/2018)
144 MOTION by Defendants Jacob J. Lew, Sec of US Dept of Treasury, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury for extension of time to brief Plaintiff's motion for attorney's fees (Attachments: # 1 Text of Proposed Order)(Newton, Emily) (Entered: 11/07/2018)
145 NOTICE of Motion by Emily Sue Newton for presentment of extension of time, 144 before Honorable Robert M. Dow Jr. on 11/13/2018 at 09:15 AM. (Newton, Emily) (Entered: 11/07/2018)

Case: 1:13-cv-8910 As of: 05/11/2020 03:18 PM CDT 14 of 14

11/12/2018
11/21/2018 11/21/2018 11/27/2018
12/20/2018 04/03/2019

146 MINUTE entry before the Honorable Robert M. Dow, Jr: Joint motion to extend briefing deadlines 144 is granted. Defendants' response to Plaintiff's motion for attorney's fees and related nontaxable expenses are due November 23, 2018; Plaintiff's reply in support of its motion for attorney's fees and related nontaxable expenses would be due December 14, 2018. Notice of motion date of November 13, 2018 is stricken and no appearances are necessary on that date. Mailed notice (cdh, ) (Entered: 11/12/2018)
147 MOTION by Defendants United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury for extension of time to file response/reply to Plaintiff's motion for attorney's fees (Attachments: # 1 Text of Proposed Order)(Newton, Emily) (Entered: 11/21/2018)
148 NOTICE of Motion by Emily Sue Newton for presentment of motion for extension of time to file response/reply, 147 before Honorable Robert M. Dow Jr. on 11/28/2018 at 09:15 AM. (Newton, Emily) (Entered: 11/21/2018)
149 MINUTE entry before the Honorable Robert M. Dow, Jr: Unopposed motion to extend briefing deadlines 147 is granted. Defendants' response to Plaintiff's motion for attorney's fees and related nontaxable expenses are due 12/20/2018; Plaintiff's reply in support of its motion for attorney's fees and nontaxable expenses are due 1/10/2019. Notice of motion date of 11/28/2018 is stricken and no appearances are necessary on that date. Mailed notice (cdh, ) (Entered: 11/27/2018)
150 Notice of Withdrawal of Motion by Wheaton College (Rienzi, Mark) (Entered: 12/20/2018)
151 MINUTE entry before the Honorable Robert M. Dow, Jr: In light of Plaintiff's notice of withdrawal 150 , the Court strikes Plaintiff's motion for attorney's fees as moot 136 . Mailed notice (cdh, ) (Entered: 04/03/2019)