Case 1:12-cv-01123-JLK Document 19 Filed 06/26/12 USDC Colorado Page 1 of 35
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 1:12-cv-1123-JLK
WILLIAM NEWLAND; PAUL NEWLAND; JAMES NEWLAND; CHRISTINE KETTERHAGEN; ANDREW NEWLAND; and HERCULES INDUSTRIES, INC., a Colorado Corporation;
Plaintiffs, v. KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; HILDA SOLIS, in her official capacity as Secretary of the United States Department of Labor; TIMOTHY GEITHNER, in his official capacity as Secretary of the United States Department of the Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; and UNITED STATES DEPARTMENT OF THE TREASURY;
Defendants.
FIRST AMENDED VERIFIED COMPLAINT
Plaintiffs William Newland, Paul Newland, James Newland, Christine Ketterhagen, Andrew Newland (collectively herein the “Newlands”) and Hercules Industries, Inc., a Colorado
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corporation, (herein “Hercules” or collectively, with the Newlands, the “Plaintiffs”) by and through their counsel, the Alliance Defense Fund, state as follows:
NATURE OF THE CASE 1. In this action, the Plaintiffs seek declaratory and injunctive relief for the Defendants’ violations of the Religious Freedom Restoration Act 42 U.S.C. § 2000bb et seq. (RFRA), the First and Fifth Amendments to the United States Constitution, and the Administrative Procedure Act, 5 U.S.C. § 701, et seq. (APA), by Defendants’ actions in implementing the Patient Protection and Affordable Care Act of 2010 (Pub. L. 111-148 (March 23, 2010), and Pub. L. 111-152 (March 30, 2010) (hereinafter “PPACA”), in ways that coerce the Plaintiffs and thousands of other conscientious individuals and entities and to engage in acts they consider sinful and immoral in violation of their most deeply held religious beliefs. 2. Plaintiffs William Newland, Paul Newland, James Newland, Christine Ketterhagen, and Andrew Newland (hereinafter “the Newlands”) are practicing and believing Catholic Christians. They own and operate Hercules Industries, Inc., a Colorado corporation, located at 1310 West Evans Avenue, Denver, CO 80223 (hereinafter “Hercules”), an HVAC manufacturer, and they seek to run Hercules in a manner that reflects their sincerely held religious beliefs. The Newlands, based upon these sincerely held religious beliefs as formed by the moral teachings of the Catholic Church, believe that God requires respect for the sanctity of human life and for the procreative and unitive character of the sexual act in marriage. 3. Applying this religious faith and the moral teachings of the Catholic Church, the Newlands have concluded that it would be sinful and immoral for them to intentionally participate in, pay for, facilitate, or otherwise support abortifacient drugs, contraception, or
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sterilization, through health insurance coverage they offer at Hercules. As a consequence, the Newlands provide health insurance benefits to their employees that omits coverage of abortifacient drugs, contraception, and sterilization. The Newlands’ plan is self-insured, and the plan year renews each year on November 1, the next renewal date thus occurring on November 1, 2012.
4. With full knowledge that many religious citizens hold the same or similar beliefs, on February 15, 2012 the Defendants finalized rules through the Departments of HHS, Labor and Treasury—those rules collectively referred to hereinafter as the “Preventive Services Mandate” or the “Mandate”1—that force Plaintiffs to pay for and otherwise facilitate the insurance coverage and use of abortifacient drugs, contraception, sterilization and related education and counseling. This Mandate applies to Plaintiffs solely because they wish to operate their business in the United States of America.
1 The Mandate consists of a conglomerate of authorities, including: “Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act,” 77 Fed. Reg. 8725–30 (Feb. 15, 2012); the prior interim final rule found at 76 Fed. Reg. 46621–26 (Aug. 3, 2011) which the Feb. 15 rule adopted “without change”; the guidelines by Defendant HHS’s Health Resources and Services Administration (HRSA), http://www.hrsa.gov/womensguidelines/ , mandating that health plans include no-cost-sharing coverage of “All Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity” as part of required women’s “preventive care”; regulations issued by Defendants in 2010 directing HRSA to develop those guidelines, 75 Fed. Reg. 41726 (July 19, 2010); the statutory authority found in 42 U.S.C. § 300gg-13(a)(4) requiring unspecified preventive health services generally, to the extent Defendants have used it to mandate coverage to which Plaintiffs and other employers have religious objections; penalties existing throughout the United States Code for noncompliance with these requirements; and other provisions of PPACA or its implementing regulations that affect exemptions or other aspects of the Mandate.
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5. As have many entities organized by people of faith, the Newlands have concluded that compliance with Defendants’ Mandate would require them to violate their deeply held religious beliefs as formed by the moral teachings of the Catholic Church. The Mandate illegally and unconstitutionally coerces the Plaintiffs to violate their sincerely held Catholic beliefs under threat of heavy fines and penalties. The Mandate also forces the Plaintiffs to fund government-dictated speech that is directly at odds with the religious ethics derived from their deeply held religious beliefs and the moral teachings of the Catholic Church that they strive to embody in their business. Defendants’ coercion tramples on the freedom of conscience of Plaintiffs and millions of other Americans to abide by their religious convictions, to comply with moral imperatives they believe are decreed by God Himself through His Church, and to contribute through society through business in a way that is consistent with their religious ethics, deeply held religious beliefs, and the moral teachings of the Catholic Church.
6. Defendants’ refusal to accommodate the conscience of the Plaintiffs is highly selective. PPACA exempts a variety of health plans from the Mandate, and upon information and belief the government has provided thousands of exemptions from the PPACA for various entities such as large corporations. But Defendants’ Mandate does not exempt Plaintiffs’ plan or those of many other religious Americans.
7. Defendants’ actions violate the Plaintiffs’ right freely to exercise religion, protected by the Religious Freedom Restoration Act and the Religion Clauses of the First Amendment to the United States Constitution.
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8. Defendants’ actions also violate the Plaintiffs’ right to the freedom of speech, as secured by the Free Speech Clause of the First Amendment to the United States Constitution, and their due process rights secured by the Fifth Amendment to the United States Constitution.
9. Additionally, Defendants violated the Administrative Procedure Act, 5 U.S.C. § 553, by imposing the Mandate without prior notice or public comment, and for other reasons.
10. Plaintiffs are faced with imminent harm due to Defendants’ Mandate. The Mandate by its terms forces Plaintiffs to obtain and pay for insurance coverage of the objectionable items in their November 1, 2012 plan. Plaintiffs must coordinate and arrange the details for that plan on and by August 2012. Plaintiffs therefore will suffer irreparable harm by or before August 1, 2012, unless the Court enters declaratory and injunctive relief to protect Plaintiffs from Defendants’ deliberate attack on their consciences and religious freedoms which would result from forced compliance with the Mandate.
IDENTIFICATION OF PARTIES 11. Hercules Industries, Inc., a Colorado corporation (herein “Hercules”), resident at 1310 West Evans Avenue, Denver, Colorado, is a family business that manufactures HVAC products. It is owned and operated as an s-corporation by Plaintiffs William Newland, Paul Newland, James Newland, and Christine Ketterhagen, who are siblings. Together they possess full ownership of and management responsibility for Hercules, and share management responsibility with Plaintiff Andrew Newland as the Vice-President. 12. Plaintiff William Newland, a resident of Lakewood, Colorado, is a 25% shareholder of Plaintiff Hercules Industries, Inc., is one of the four members of the Hercules Board of Directors, and serves as President of Hercules.
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13. Plaintiff Paul Newland, a resident of Cherry Hills Village, Colorado, is a 25% shareholder of Plaintiff Hercules Industries, Inc., and is one of the four members of the Board of Directors.
14. Plaintiff James Newland, a resident of Littleton, Colorado, is a 25% shareholder of Plaintiff Hercules Industries, Inc., and is one of the four members of the Board of Directors,
15. Plaintiff Christine Ketterhagen, a resident of Colorado Springs, Colorado, is a 25% shareholder of Plaintiff Hercules Industries, Inc., and is one of the four members of the Board of Directors.
16. Plaintiff Andrew Newland, a resident of Castle Rock, CO, is currently Vice-President of Hercules Industries, Inc., and has been elected its President effective January 1, 2013. He is the son of Plaintiff William Newland.
17. By virtue of their ownership, directorship and officer positions, the Newlands are responsible for implementing Hercules Industries’ compliance with Defendants’ Mandate.
18. Defendants are appointed officials of the United States government and United States Executive Branch agencies responsible for issuing and enforcing the Mandate.
19. 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.
20. Defendant HHS 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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21. Defendant Hilda Solis is the Secretary of the United States Department of Labor. In this capacity, she has responsibility for the operation and management of the Department of Labor. Solis is sued in her official capacity only.
22. 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.
23. Defendant Timothy Geithner is the Secretary of the Department of the Treasury. In this capacity, he has responsibility for the operation and management of the Department. Geithner is sued in his official capacity only.
24. 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.
JURISDICTION AND VENUE 25. This action arises under the Constitution and laws of the United States. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 & 1361, jurisdiction to render declaratory and injunctive relief under 28 U.S.C. §§ 2201 & 2202, 42 U.S.C. § 2000bb-1, 5 U.S.C. § 702, and Fed. R. Civ. P. 65, and to award reasonable attorney’s fees and costs under the Equal Access to Justice Act, 28 U.S.C. § 2412, and 42 U.S.C. § 1988. 26. 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 the Plaintiffs are located in this district.
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FACTUAL ALLEGATIONS I. The Newlands’ Religious Beliefs and Operation of Hercules According to the Same
27. The Newlands are practicing and believing Catholic Christians. 28. They strive to follow Catholic ethical beliefs and religious and moral teachings throughout their lives, including in their operation of Hercules. 29. The Newlands sincerely believe that the Catholic faith does not allow them to violate Catholic religious and moral teachings in their decisions operating Hercules Industries. They believe that according to the Catholic faith their operation of Hercules must be guided by ethical social principles and Catholic religious and moral teachings, that the adherence of their business practice according to such Catholic ethics and religious and moral teachings is a genuine calling from God, that their Catholic faith prohibits them to sever their religious beliefs from their daily business practice, and that their Catholic faith requires them to integrate the gifts of the spiritual life, the virtues, morals, and ethical social principles of Catholic teaching into their life and work. 30. The Catholic Church teaches that abortifacient drugs, contraception and sterilization are intrinsic evils. 31. As a matter of religious faith the Newlands believe that those Catholic teachings are among the religious ethical teachings they must follow throughout their lives including in their business practice. 32. Consequently, the Newlands believe that it would be immoral and sinful for them to intentionally participate in, pay for, facilitate, or otherwise support abortifacient drugs,
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contraception, sterilization, and related education and counseling, as would be required by the Mandate, through their inclusion in health insurance coverage they offer at Hercules.
33. Hercules’ mission statement includes the commitment that “We will nurture and maintain the culture of a family owned business in which our employees grow financially, intellectually, emotionally and spiritually.”
34. The Newlands have, for a substantial period of time to the present, operated Hercules in promotion of Catholic ethical principles in a variety of ways including but not limited to the structuring of their health insurance plan.
35. Under the Newlands’ direction Hercules has donated hundreds of thousands of dollars to Catholic parishes, schools, evangelical efforts, and charitable causes averaging nearly $60,000 every year since 2008.
36. Since 2010 the Newlands’ have been implementing within Hercules a program created by the Spitzer Center for Ethical Leadership, by which companies build their corporate culture based on Catholic principles. Through this program, the Newlands have regularly trained their management to implement principles based on plaintiffs’ religious ethical beliefs.
II. Hercules Industries’ Health Insurance Plan 37. As part of fulfilling their organizational mission and Catholic beliefs and
commitments, Plaintiffs provide generous health insurance for their employees. 38. Hercules has 265 full-time employees throughout its various locations. 39. Plaintiffs maintain a self-insured group plan for their employees, in which
Hercules acts as its own insurer.
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40. The plan year for Hercules’ self-insured plan begins on November 1 of each year, with the next plan year starting on November 1, 2012.
41. Consistent with Plaintiffs’ religious commitments, Hercules’ self-insured plan does not cover abortifacient drugs, contraception or sterilization, and it has not done so for any of its November 2011 – October 2012 plan year.
42. Hercules’ self-insured plan is not subject to a Colorado state requirement to cover contraception.
43. To implement the plan for the new year beginning November 1, 2012, and/or to make substantial plan changes as a result of the Mandate, Plaintiffs must make insurance coverage decisions and logistical arrangements on or by about August 1, 2012, in order for the plan to be arranged, reviewed, finalized, and offered to employees for open enrollment in time for the plan year’s November 1 start date.
III. The PPACA and Defendants’ Mandate Thereunder 44. Under the PPACA, employers with over 50 full-time employees are required to
provide a certain minimum level of health insurance to their employees. 45. Nearly all such plans must include “preventive services,” which must be offered
with no cost-sharing by the employee. 46. On February 10, 2012, the Department of Health and Human Services finalized a
rule (previously referred to in this Complaint as the Mandate) that imposes a definition of preventive services to include all FDA-approved “contraceptive” drugs, surgical sterilization, and education and counseling for such services.
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47. This final rule was adopted without giving due weight to the tens of thousands of public comments submitted to HHS in opposition to the Mandate.
48. In the category of “FDA-approved contraceptives” included in this Mandate are several drugs or devices that may cause the demise of an already-conceived but not-yetimplanted human embryo, such as “emergency contraception” or “Plan B” drugs (the so-called “morning after” pill).
49. The FDA approved in this same category a drug called “ella” (the so-called “week after” pill), which studies show can function to kill embryos even after they have implanted in the uterus, by a mechanism similar to the abortion drug RU-486.
50. The manufacturers of some such drugs, methods and devices in the category of “FDA-approved contraceptive methods” indicate that they can function to cause the demise of an early human embryo.
51. The Mandate also requires group health care plans to pay for the provision of counseling, education, and other information concerning contraception (including devices and drugs such as Plan B and ella that cause early abortions or harm to human embryos) and sterilization for all women beneficiaries who are capable of bearing children.
52. The Mandate applies to the first health insurance plan-year beginning after August 1, 2012.
53. An entity cannot escape the Mandate by self-insuring; Plaintiffs’ plan is thus subject to the Mandate even though it is self-insured.
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54. Thus Plaintiffs are, absent relief from this Court, subject to the Mandate’s requirement of coverage of the above-described items starting in Hercules November 1, 2012 plan.
55. The Mandate makes little or no allowance for the religious freedom of entities and individuals, including Plaintiffs, who object to paying for or providing insurance coverage for such items.
56. An entity cannot freely avoid the Mandate by simply refusing to provide health insurance to its employees, because the PPACA imposes monetary penalties on entities that would so refuse.
57. The exact magnitude of these penalties may vary according to the complicated provisions of the PPACA, but the fine is approximately $2,000 per employee per year.
58. PPACA also imposes monetary penalties if Hercules were to continue to offer its self-insured plan but continued omitting abortifacients, contraceptives and sterilization.
59. The exact magnitude of these penalties may vary according to the complicated provisions of the PPACA, but the fine is approximately $100 per day per employee, with minimum amounts applying in different circumstances.
60. If Plaintiffs do not submit to the Mandate they also trigger a range of enforcement mechanisms that exist under ERISA, including but not limited to civil actions by the Secretary of Labor or by plan participants and beneficiaries, which would include but not be limited to relief in the form of judicial orders mandating that Plaintiffs violate their sincerely held religious beliefs and provide coverage for items to which they religiously object.
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61. The Mandate applies not only to sponsors of group health plans like Plaintiffs, but also to issuers of insurance. Accordingly, Plaintiffs cannot avoid the Mandate by shopping for an insurance plan that accommodates their right of conscience, because the Administration has intentionally foreclosed that possibility.
62. The Mandate offers the possibility of a narrow exemption to religious employers, but only if they meet all of the following requirements:
(1) “The inculcation of religious values is the purpose of the organization”; (2) “The organization primarily employs persons who share the religious tenets of the
organization”; (3) “The organization serves primarily persons who share the religious tenets of the
organization”; and (4) The organization is a church, an integrated auxiliary of a church, a convention or
association of churches, or is an exclusively religious activity of a religious order, under Internal Revenue Code 6033(a)(1) and (a)(3)(A). 63. The Mandate imposes no constraint on the government’s discretion to grant exemptions to some, all, or none of the organizations meeting the Mandate’s definition of “religious employers.” 64. Plaintiffs are not “religious” enough under this definition in several respects, including but not limited to because they have purposes other than the “inculcation of religious values,” they do not primarily hire or serve Catholics, and because Hercules is not a church, integrated auxiliary of a particular church, convention or association of a church, or the exclusively religious activities of a religious order.
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65. The Mandate fails to protect the statutory and constitutional conscience rights of religious Americans like Plaintiffs even though those rights were repeatedly raised in the public comments.
66. The Mandate requires that Plaintiffs provide coverage for abortifacient methods, contraception, sterilization and education and counseling related to the same, against their conscience and in violation of their religious beliefs, in a manner that is contrary to law.
67. The Mandate constitutes government-imposed coercion on Plaintiffs to change or violate their sincerely held religious beliefs.
68. The Mandate exposes Plaintiffs to substantial fines for refusal to change or violate their religious beliefs.
69. The Mandate will impose a burden on the Plaintiffs’ employee recruitment and retention efforts by creating uncertainty as to whether or on what terms they will be able to offer health insurance beyond the Mandate’s effect or will suffer penalties therefrom.
70. The Mandate will place Plaintiffs at a competitive disadvantage in their efforts to recruit and retain employees and students.
71. Plaintiffs have a sincere conscientious religious objection to providing coverage for abortifacients, contraception, sterilization and related education and counseling.
72. The Mandate does not apply equally to all religious adherents or groups. 73. PPACA and the Mandate are not generally applicable because they provide for numerous exemptions from their rules.
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74. For instance, the Mandate does not apply to members of a “recognized religious sect or division” that conscientiously objects to acceptance of public or private insurance funds. See 26 U.S.C. §§ 5000A(d)(2)(a)(i) and (ii). Plaintiffs do not meet this exemption.
75. In addition, as described above, the Mandate exempts certain churches narrowly considered to be religious employers.
76. Furthermore, the PPACA creates a system of individualized exemptions because under the PPACA’s authorization the federal government has granted discretionary compliance waivers to a variety of businesses for purely secular reasons.
77. The Mandate does not apply to employers with preexisting plans that are “grandfathered.”
78. Hercules’ plan is not grandfathered under PPACA, nor will its plan year that starts on November 1, 2012 have grandfathered status.
79. The Mandate does not apply through the employer mandate to employers having fewer than 50 full-time employees.
80. President Obama held a press conference on February 10, 2012, and later (through Defendants) issued an “Advanced Notice of Proposed Rulemaking” (“ANPRM”) on March 21, 2012 (77 Fed. Reg. 16501–08), claiming to offer a “compromise” under which some religious non-profit organizations not meeting the above definition would still have to comply with the Mandate, but by means of the employer’s insurer offering the employer’s employees the same coverage for “free.”
81. This “compromise” is not helpful to Plaintiffs because, among other reasons, Hercules is not a non-profit entity, and Hercules’ plan is self-insured.
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82. The ANPRM is neither a rule, a proposed rule, nor the specification of what a rule proposed in the future would actually contain. It in no way changes or alters the final status of the February 15, 2012 Mandate. It does not even create a legal requirement that Defendants change the Mandate at some time in the future.
83. On February 10, 2012 a document was also issued from the Center for Consumer Information and Insurance Oversight (CCIIO), Centers for Medicare & Medicaid Services (CMS), of HHS, entitled “Guidance on the Temporary Enforcement Safe Harbor for Certain Employers, Group Health Plans and Group Health Insurance Issuers with Respect to the Requirement to Cover Contraceptive Services Without Cost Sharing Under Section 2713 of the Public Health Service Act, Section 715(a)(1) of the Employee Retirement Income Security Act, and Section 9815(a)(1) of the Internal Revenue Code.”
84. Under this “Guidance,” an organization that truthfully declares “I certify that the organization is organized and operated as a non-profit entity; and that, at any point from February 10, 2012 onward, contraceptive coverage has not been provided by the plan, consistent with any applicable State law, because of the religious beliefs of the organization,” and that provides a specified notice to plan participants, will not “be subject to any enforcement action by the Departments for failing to cover recommended contraceptive services without cost sharing in non-exempted, non-grandfathered group health plans established or maintained by an organization, including a group or association of employers within the meaning of section 3(5) of ERISA, (and any group health insurance coverage provided in connection with such plans),” until “the first plan year that begins on or after August 1, 2013.”
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85. The “Guidance” categorically disqualifies Plaintiffs from making use of this “extra year” because, among other reasons, Hercules is not a non-profit entity.
86. Therefore while the president’s “compromise” and guidance purport to accommodate the religious beliefs of even more groups beyond the Mandate’s initial exemption for churches, none of these measures will stop the Mandate from imposing its requirements on Plaintiffs’ plan year beginning November 1, 2012.
87. Unless relief issues from this Court, Plaintiffs are forced to take the Mandate into account now and no later than August 1, 2012, as it plans expenditures, including employee compensation and benefits packages, for the November 1, 2012 plan year and for the next several years. It will have to negotiate contracts for new and existing employees and these contracts will extend into the time frame when the Mandate begins to apply to its health insurance plans.
88. The Mandate will have a profound and adverse effect on Plaintiffs and how they negotiate contracts and compensate their employees.
89. The Mandate will make it difficult for Plaintiffs to attract quality employees because of uncertainty about health insurance benefits.
90. Any alleged interest Defendants have in providing free FDA-approved contraception, abortifacients and sterilization without cost-sharing could be advanced through other, more narrowly tailored mechanisms that do not burden the religious beliefs of Plaintiffs and do not require them to provide or facilitate coverage of such items through their health plan.
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91. Without injunctive and declaratory relief as requested herein, including preliminary injunctive relief issued on or before August 2012, Plaintiffs are suffering and will continue to suffer irreparable harm.
92. Plaintiffs have no adequate remedy at law. Additional Factual Allegations
93. Hercules’ self-insured plan covers pregnancy-related expenses, such as: prenatal and postnatal care; hospital or birthing center room and board; obstetrical fees for routine prenatal care; vaginal delivery or cesarean section; diagnostic testing when clinical eligibility for coverage is met; abdominal operation for intrauterine pregnancy or miscarriage; outpatient birthing centers; midwives. The plan does not consider pregnancy an excluded pre-existing condition.
94. Hercules’ self-insured plan covers a maternity management service, which provides prenatal education and high-risk pregnancy identification to help mothers carry their babies to term. This program increases the number of healthy, full term deliveries and decreases the likelihood of complications requiring a long term hospital stay for the mother or baby. Program members are contacted via telephone at least once each trimester and once postpartum. A comprehensive assessment to determine the member’s risk level and educational need is performed. To increase participation, the program uses incentives to participate.
95. Hercules has a wellness program for employees which includes promoting the health of women during and after pregnancy.
96. The lowest paid employee at Hercules that is enrolled in the self-insured plan earns $21,000 per year. Only four such employees earn $22,070 or less. The median wage of
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health plan participants is $38,500 and their average wage is $50,213 (these figures are calculated without including the wages of Hercules’ owners).
97. Hercules’ self-insured plan is not grandfathered under PPACA because between the plan year beginning November 2010 and the plan year beginning November 2011, Hercules increased the annual deductible per calendar year from $250 to $500 per-person in-network, from $500 to $1,000 per-family in-network and per-person out-of-network, and from $1,000 to $2,000 per-family out-of-network.
98. Hercules’ self-insured plan is not grandfathered under PPACA because between the plan year beginning November 2010 and the plan year beginning November 2011, Hercules increased the annual out-of-pocket-maximum from $1,000 to $2,000 per-person in-network, from $2,000 to $4,000 per-family in-network and per-person out-of-network, and from $4,000 to $8,000 per-family out-of-network.
99. Hercules’ self-insured plan is not grandfathered under PPACA because between the plan year beginning November 2010 and the plan year beginning November 2011, Hercules decreased most of the percentages of the costs of services that the plan pays from 90% to 80% in-network and from 70% to 60% out-of-network. For example, in the 2010 plan Hercules covered 90% of in-network inpatient services and physician charges, ambulance transportation, hospital outpatient lab and x-ray charges, and many other services listed, but in the 2011 plan Hercules covered 80%.
100. Hercules’ self-insured plan is not grandfathered under PPACA because for the November 2011 plan year, Hercules did not provide notification to plan participants that its plan was considered grandfathered (because the plan was not considered grandfathered).
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101. It would significantly injure Plaintiffs and their employees to require them to wait beyond early August to know whether their November 1, 2012 health plan will cover the items required by the Mandate.
102. Plaintiffs offer their employees an open enrollment period on the November 1 plan year starting on October 1.
103. Employees cannot make an informed decision on that open enrollment period without knowing the final terms of the plan, including whether it will cover the Mandated items.
104. The open enrollment period cannot start without finalizing a contract with a stop-loss carrier, and also a third party administrator, for the plan in advance of October 1.
105. To finalize a contract with a stop-loss carrier, Plaintiffs must know the complete and final details of the plan’s terms including its coverage, submit those details to their broker who submits them for bids to stop-loss carriers, review the bids and negotiate with carriers who offer competitive bids, reach an agreement with a carrier, and draft, review, finalize and execute a contract with the carrier.
106. The activities involved in securing stop-loss coverage and third party administrator services typically take much of August and September to complete in time for the October 1 open enrollment period.
107. Before the plan’s terms are finalized and submitted for bids to stop-loss carriers, the Plaintiffs must decide what those terms will be, what will be covered in the plan, what employee contributions will be to the plan, and what the terms of Hercules’ related wellness program for employees will be, through which employees receive credits towards their plan.
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108. Plaintiffs’ decision on the plan’s terms must be made based on knowing what items the plan will or will not cover, and what levels of employee contributions will be needed to meet Hercules’ budget based on what the plan covers.
109. If Plaintiffs were forced to add no-cost-sharing surgical sterilizations and implantable “contraceptive” methods to their plan as required by the Mandate, which cost hundreds or thousands of dollars, as well as all FDA-approved “contraceptives” including those that act to destroy early embryos, as well as patient education and counseling in facilitation of the aforementioned, all of which are required by the Mandate, Plaintffs would have take that inclusion into account at the time they decide what coverages and employee-contributions the budget of Hercules can afford. This decision must occur before the plan is submitted for bidding to stop-loss providers.
110. Adding the Mandated items will require Hercules to either remove coverage of other services included in the plan, or increase employee contributions.
111. Therefore if Plaintiffs are not afforded prompt injunctive relief against the Mandate, they and their employees face imminent and irreparable injury.
112. On June 25, 2012, the Board and Shareholder Plaintiffs effected an amendment to the articles of Hercules Industries, Inc., through Plaintiff Andrew Newland. The amendment added the following declaration to the corporation’s third article describing the corporation’s “Purposes”: “To accomplish its purpose, the Corporation shall continue to have all of the powers of a corporation incorporated in Colorado to do so, and shall additionally continue have the power and the obligation to accomplish the purposes of the Corporation following appropriate religious, ethical or moral standards.” The amendment also added the following declaration to
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the corporation’s seventh article, relating to the Board of Directors: “In establishing appropriate religious, ethical or moral standards, each member of the Board of Directors may continue use his or her business judgment in doing so, even should the adoption of any religious, ethical or moral result in a reduction of the profitability of the Corporation.”
FIRST CLAIM FOR RELIEF Violation of the Religious Freedom Restoration Act
42 U.S.C. § 2000bb 113. Plaintiffs reallege all matters set forth in paragraphs 1–112 and incorporate them herein by reference. 114. Plaintiffs’ sincerely held religious beliefs prohibit them from providing coverage for abortifacients, contraception, sterilization, and related education and counseling in their employee health plan. 115. When Plaintiffs comply with Catholic ethical and moral teachings on abortifacients, contraception, and sterilization and with their sincerely held religious beliefs, they exercise religion within the meaning of the Religious Freedom Restoration Act. 116. The Mandate imposes a substantial burden on Plaintiffs’ religious exercise and coerces them to change or violate their sincerely held religious beliefs. 117. The Mandate chills Plaintiffs’ religious exercise within the meaning of RFRA. 118. The Mandate exposes Plaintiffs to substantial fines and/or financial burdens for their religious exercise. 119. The Mandate exposes Plaintiffs to substantial competitive disadvantages because of uncertainties about their health insurance benefits caused by the Mandate.
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120. The Mandate furthers no compelling governmental interest and is not narrowly tailored to any compelling governmental interest.
121. The Mandate is not the least restrictive means of furthering Defendants’ stated interests.
122. The Mandate violates RFRA. WHEREFORE, the Plaintiffs pray for the relief set forth below.
SECOND CLAIM FOR RELIEF Violation of Free Exercise Clause of the First Amendment
to the United States Constitution 123. Plaintiffs reallege all matters set forth in paragraphs 1–112 and incorporate them herein by reference. 124. Plaintiffs’ sincerely held religious beliefs prohibit them from providing coverage for abortifacients, contraception, sterilization, and related education and counseling in their employee health plan. 125. When Plaintiffs comply with Catholic ethical and moral teachings on abortifacients, contraception, and sterilization and with their sincerely held religious beliefs, they exercise religion within the meaning of the Free Exercise Clause. 126. The Mandate is not neutral and is not generally applicable. 127. Defendants have created categorical exemptions and individualized exemptions to the Mandate. 128. The Mandate furthers no compelling governmental interest. 129. The Mandate is not the least restrictive means of furthering Defendants’ stated interests.
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130. The Mandate coerces Plaintiffs to change or violate their sincerely held religious beliefs.
131. The Mandate chills Plaintiffs’ religious exercise. 132. The Mandate exposes Plaintiffs to substantial fines and/or financial burdens for their religious exercise. 133. The Mandate exposes Plaintiffs to substantial competitive disadvantages because of uncertainties about its health insurance benefits caused by the Mandate. 134. The Mandate imposes a substantial burden on Plaintiffs’ religious exercise. 135. The Mandate is not narrowly tailored to any compelling governmental interest. 136. By design, Defendants framed the Mandate to apply to some religious Americans but not to others, resulting in discrimination among religions. 137. Defendants have created exemptions to the Mandate for some religious believers but not others based on characteristics of their beliefs and their religious exercise. 138. Defendants designed the Mandate, the religious exemption thereto, and the “compromise” and guidance allowances thereto, in a way that makes it impossible for Plaintiffs and other similar religious Americans to comply with their sincerely held religious beliefs. 139. Defendants promulgated both the Mandate and the religious exemption/allowances with the purpose and intent to suppress the religious exercise of Plaintiffs and others. 140. The Mandate violates Plaintiffs’ rights secured to them by the Free Exercise Clause of the First Amendment of the United States Constitution. WHEREFORE, the Plaintiffs pray for the relief set forth below.
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THIRD CLAIM FOR RELIEF Violation of the Establishment Clause of the First Amendment to the United States Constitution 141. Plaintiffs reallege all matters set forth in paragraphs 1–112 and incorporate them herein by reference. 142. The First Amendment’s Establishment Clause prohibits the establishment of any religion and/or excessive government entanglement with religion. 143. To determine whether religious persons or entities like Plaintiffs are required to comply with the Mandate, are required to continue to comply with the Mandate, are eligible for an exemption or other accommodations, or continue to be eligible for the same, Defendants must examine the religious beliefs and doctrinal teachings of persons or entities like Plaintiffs. 144. Obtaining sufficient information for the Defendants to analyze the content of Plaintiffs’ sincerely held religious beliefs requires ongoing, comprehensive government surveillance that impermissibly entangles Defendants with religion. 145. The Mandate discriminates among religions and among denominations, favoring some over others, and exhibits a hostility to religious beliefs. 146. The Mandate adopts a particular theological view of what is acceptable moral complicity in provision of abortifacient, contraceptive and sterilization coverage and imposes it upon all religionists who must either conform their consciences or suffer penalty. 147. The Mandate violates Plaintiffs’ rights secured to them by the Establishment Clause of the First Amendment of the United States Constitution. WHEREFORE, the Plaintiffs pray for the relief set forth below.
25

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FOURTH CLAIM FOR RELIEF Violation of the Free Speech Clause of the First Amendment
to the United States Constitution 148. Plaintiffs reallege all matters set forth in paragraphs 1–112 and incorporate them herein by reference. 149. Defendants’ requirement of provision of insurance coverage for education and counseling regarding contraception and abortion-causing drugs forces Plaintiffs to speak in a manner contrary to their religious beliefs. 150. Defendants have no narrowly tailored compelling interest to justify this compelled speech. 151. The Mandate violates Plaintiffs’ rights secured to them by the Free Speech Clause of the First Amendment of the United States Constitution. WHEREFORE, the Plaintiffs pray for the relief set forth below.
FIFTH CLAIM FOR RELIEF Violation of the Due Process Clause of the Fifth Amendment to the United States Constitution 152. Plaintiffs reallege all matters set forth in paragraphs 1–112 and incorporate them herein by reference. 153. Because the Mandate sweepingly infringes upon religious exercise and speech rights that are constitutionally protected, it is unconstitutionally vague and overbroad in violation of the due process rights of Plaintiffs and other parties not before the Court. 154. Persons of common intelligence must necessarily guess at the meaning, scope, and application of the Mandate and its exemptions.
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155. This Mandate lends itself to discriminatory enforcement by government officials in an arbitrary and capricious manner.
156. The Mandate vests Defendants with unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations meeting whatever definition of “religious employers” it decides to craft.
157. This Mandate is an unconstitutional violation of Plaintiffs’ due process rights under the Fifth Amendment to the United States Constitution.
WHEREFORE, the Plaintiffs pray for the relief set forth below.
SIXTH CLAIM FOR RELIEF Violation of the Administrative Procedure Act 158. Plaintiffs reallege all matters set forth in paragraphs 1–112 and incorporate them herein by reference. 159. Because they did not give proper notice and an opportunity for public comment, Defendants did not take into account the full implications of the regulations by completing a meaningful consideration of the relevant matter presented. 160. Defendants did not consider or respond to the voluminous comments they received in opposition to the interim final rule. 161. Therefore, Defendants have taken agency action not in accordance with procedures required by law, and Plaintiffs are entitled to relief pursuant to 5 U.S.C. § 706(2)(D). 162. In promulgating the Mandate, Defendants failed to consider the constitutional and statutory implications of the Mandate on Plaintiffs and similar persons.
27

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163. Defendants’ explanation (and lack thereof) for its decision not to exempt Plaintiffs and similar religious organizations from the Mandate runs counter to the evidence submitted by religious Americans during the comment period.
164. Thus, Defendants’ issuance of the Mandate was arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because the Mandate fails to consider the full extent of its implications and it does not take into consideration the evidence against it.
165. As set forth above, the Mandate violates RFRA and the First and Fifth Amendments.
166. The Mandate is also contrary to the provisions of the PPACA which states that “nothing in this title”—i.e., title I of the Act, which includes the provision dealing with “preventive services”—“shall be construed to require a qualified health plan to provide coverage of [abortion] services . . . as part of its essential health benefits for any plan year.” Section 1303(b)(1)(A). Some drugs included as “FDA-approved contraceptives” under the Mandate cause abortions by causing the demise of human embryos before and/or after implantation.
167. The Mandate is also contrary to the provisions of the Weldon Amendment of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act of 2009, Public Law 110 329, Div. A, Sec. 101, 122 Stat. 3574, 3575 (Sept. 30, 2008), which provides that “[n]one of the funds made available in this Act [making appropriations for Defendants Department of Labor and Health and Human Services] may be made available to a Federal agency or program . . . if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.”
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168. The Mandate also violates the provisions of the Church Amendment, 42 U.S.C. § 300a-7(d), which provides that “No individual shall be required to perform or assist in the performance of any part of a health service program or research activity funded in whole or in part under a program administered by the Secretary of Health and Human Services if his performance or assistance in the performance of such part of such program or activity would be contrary to his religious beliefs or moral convictions.”
169. The Mandate is contrary to existing law and is in violation of the APA under 5 U.S.C. § 706(2)(A)f.
WHEREFORE, the Plaintiffs pray for the relief set forth below.
PRAYER FOR RELIEF Plaintiffs respectfully request the following relief: A. That this Court enter a judgment declaring the Mandate and its application to Plaintiffs and others similarly situated but not before the Court to be an unconstitutional violation of their rights protected by RFRA, the Free Exercise, Establishment, and Free Speech Clauses of the First Amendment to the United States Constitution, the Due Process Clause of the Fifth Amendment to the United States Constitution, and the Administrative Procedure Act, and therefore invalid in any way applicable to them; B. That this Court enter a preliminary and a permanent injunction prohibiting Defendants from applying the Mandate to Plaintiffs and others similarly situated but not before the Court in a way that substantially burdens the religious belief of Plaintiffs or any person in violation of RFRA and the Constitution, and prohibiting Defendants from continuing to illegally
29

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discriminate against Plaintiffs and others not before the Court by requiring them to provide health insurance coverage for abortifacients, contraception, sterilization and related education and counseling to their employees;
C. That this Court award Plaintiffs court costs and reasonable attorney's fees, as provided by the Equal Access to Justice Act and RFRA (as provided in 42 U.S.C. § 1988);
D. That this Court grant such other and further relief as to which the Plaintiffs may be entitled.
Plaintiffs demand a jury on all issues so traible.

Respectfully submitted this 26th day of June, 2012. Attorneys for Plaintiffs:

s/ Matthew S. Bowman

David A. Cortman, Esq.

Michael J. Norton, Esq.

ALLIANCE DEFENSE FUND

ALLIANCE DEFENSE FUND

1000 Hurricane Shoals Road NE

7951 E. Maplewood Avenue, Suite 100

Suite D-1100

Greenwood

Village, CO 80111

Lawrenceville, GA 30043

(480)

388-8163

(770) 339-0774

(303)

694-0703 (facsimile)

(770) 339-6744 (facsimile)

mjnorton@telladf.org

dcortman@telladf.org

Steven

H. Aden, Esq.

Kevin H. Theriot, Esq.

Gregory S. Baylor, Esq.

Erik W. Stanley, Esq.

Matthew S. Bowman, Esq.

ALLIANCE DEFENSE FUND

ALLIANCE DEFENSE FUND

15192 Rosewood

801 G Street, NW, Suite 509

Leawood, KS 66224

Washington,

DC 20001

(913) 685-8000

(202)

393-8690

(913) 685-8001 (facsimile)

(202) 237-3622 (facsimile)

ktheriot@telladf.org

saden@telladf.org

estanley@telladf.org

gbaylor@telladf.org

mbowm

an@telladf.org

30

Case 1:12-cv-01123-JLK Document 19 Filed 06/26/12 USDC Colorado Page 31 of 35

VERIFICATION OF FIRST AMENDED VERIFIED COMPLAINT PURSUANT TO 28 U.S.C. § 1746‡
I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.

Executed on June 25, 2012

__ s/ William Newland______________ WILLIAM NEWLAND

31

Case 1:12-cv-01123-JLK Document 19 Filed 06/26/12 USDC Colorado Page 32 of 35

VERIFICATION OF FIRST AMENDED VERIFIED COMPLAINT PURSUANT TO 28 U.S.C. § 1746‡
I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.

Executed on June 25, 2012 ____

s/ Paul Newland_______________ PAUL NEWLAND

32

Case 1:12-cv-01123-JLK Document 19 Filed 06/26/12 USDC Colorado Page 33 of 35

VERIFICATION OF FIRST AMENDED VERIFIED COMPLAINT PURSUANT TO 28 U.S.C. § 1746‡
I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.

Executed on June 25, 2012

___ s/ James Newland______________ JAMES NEWLAND

33

Case 1:12-cv-01123-JLK Document 19 Filed 06/26/12 USDC Colorado Page 34 of 35

VERIFICATION OF FIRST AMENDED VERIFIED COMPLAINT PURSUANT TO 28 U.S.C. § 1746‡
I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.

Executed on June 18, 2012 CHRISTINE

__ s/ Christine Ketterhagen____________ KETTERHAGEN

34

Case 1:12-cv-01123-JLK Document 19 Filed 06/26/12 USDC Colorado Page 35 of 35

VERIFICATION OF FIRST AMENDED VERIFIED COMPLAINT PURSUANT TO 28 U.S.C. § 1746‡
I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.

Executed on June 25, 2012 ANDRE

___ s/ Andrew Newland_______________ W NEWLAND

‡ Signatures indicated pursuant to D. Colo. ECF Procedures 5.3(F) (Feb. 23, 2012); ink signature version available upon request.
35

 
 Case 1:12-cv-01123-JLK Document 5 Filed 04/30/12 USDC Colorado Page 1 of 4
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 1:12-cv-01123-JLK
WILLIAM NEWLAND; PAUL NEWLAND; JAMES NEWLAND; CHRISTINE KETTERHAGEN; ANDREW NEWLAND; and HERCULES INDUSTRIES, Inc., a Colorado corporation;
Plaintiffs, v. KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; HILDA SOLIS, in her official capacity as Secretary of the United States Department of Labor; TIMOTHY GEITHNER, in his official capacity as Secretary of the United States Department of the Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; and UNITED STATES DEPARTMENT OF THE TREASURY;
Defendants.
MOTION FOR PRELIMINARY INJUNCTION and CERTIFICATE OF COMPLIANCE RE: CONSULTATION ON MOTION
Plaintiffs, by and through counsel, hereby move this Court to enter a preliminary injunction on or by August 1, 2012. The individual P laintiffs own and m anage Plaintiff Hercules Industries. Plainti ffs request a pr eliminary injunction against Defendants and their mandate that requires Plaintiffs to provide, contrary to Plaintiffs sincerely held religious beliefs,
1

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coverage in their business’s em ployee health benefits plan of contraception, abortifacients, and sterilization, and education and counseling for the same. In support of this m otion Plaintffs submit an accompanying brief and a proposed form of order.
Pursuant to D.C.COLO.LCiv.R 7.1A, Attorney Michael J. Norton, one of the attorneys for the Plaintiffs, certifies that he has, before the filing of this Motion for Preliminary Injunction, telephonically consulted and conf erred about this m otion with the attorneys for the Defendants, to wit: Michelle Bennett, Esq., Trial Attorney, U.S. Department of Justice, Civil Division Federal Programs Branch, 20 Massachusetts Avenue, NW, Washington, D.C. 20001 (202-305-8902) and Kevin Traskos, Esq., Chief, Civil Division, Colora do U.S. Attorney’s Office, Seventeenth Street Plaza, 1225 – 17th Street, Suite 700, Denver, CO 80202 (303-454-0184).
The attorneys for the Defendants, while declining to consent to the entry of a preliminary injunction or an equivalent decree, have expressed that they will cooperate in se tting a briefing schedule and hearing on the motion.
Plaintiffs request oral argument on the motion.
Respectfully submitted this 30th day of April, 2012.

Michael
7951
(480) (303)

Attorneys for Plaintiffs:
s/ Michael J. Norton J. Norton, Esq.
ALLIANCE DEFENSE FUND E. Maplewood Avenue, Suite 100
Greenwood Village, CO 80111 388-8163 694-0703 (facsimile)
2

Case 1:12-cv-01123-JLK Document 5 Filed 04/30/12 USDC Colorado Page 3 of 4

Gregory
801 Washington, (202) (202) saden@telladf.org gbaylor@telladf.org mbowm
Erik
15192
(913) (913) ktheriot@telladf.org
David
1000
Lawrenceville, (770) (770) dcortm
*D. Colo Bar Application Submitted.

mjnorton@telladf.org
Steven H. Aden, Esq. S. Baylor, Esq.
Matthew S. Bowman, Esq.* ALLIANCE DEFENSE FUND
G Street, NW, Suite 509 DC 20001
393-8690 237-3622 (facsimile)

an@telladf.org

Kevin H. Theriot, Esq.

W. Stanley, Esq.

ALLIANCE DEFENSE FUND

Rosewood

Leawood,

KS 66224

685-8000

685-8001 (facsimile)

estanley@telladf.org

A. Cortman, Esq. ALLIANCE DEFENSE FUND
Hurricane Shoals Road NE Suite D-1100
GA 30043 339-0774 339-6744 (facsimile) an@telladf.org

3

Case 1:12-cv-01123-JLK Document 5 Filed 04/30/12 USDC Colorado Page 4 of 4
CERTIFICATE OF SERVICE The undersigned counsel for Plaintiffs, Michael J. Norton, hereby certifies that the following counsel for Defendants were served with the preceding document by email and by placing the document in the mail, on April 30, 2012, at the following addresses:
Michelle Bennett, Esq. Trial Attorney U.S. Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Avenue, NW Washington, D.C. 20001 Michelle.Bennett@usdoj.gov Kevin Traskos, Esq. Chief, Civil Division Colorado U.S. Attorney’s Office Seventeenth Street Plaza, 1225 – 17th Street, Suite 700 Denver, CO 80202 Kevin.Traskos@usdoj.gov
s/ Michael J. Norton Michael J. Norton, Esq.
4

 
 Case 1:12-cv-01123-JLK Document 5-1 Filed 04/30/12 USDC Colorado Page 1 of 37
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 1:12-cv-01123-JLK
WILLIAM NEWLAND; PAUL NEWLAND; JAMES NEWLAND; CHRISTINE KETTERHAGEN; ANDREW NEWLAND; and HERCULES INDUSTRIES, INC., a Colorado Corporation;
Plaintiffs, v. KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; HILDA SOLIS, in her official capacity as Secretary of the United States Department of Labor; TIMOTHY GEITHNER, in his official capacity as Secretary of the United States Department of the Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; and UNITED STATES DEPARTMENT OF THE TREASURY;
Defendants.
BRIEF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
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TABLE OF CONTENTS Table of Authorities................................................................................................... iii Introduction ................................................................................................................. 3 Factual Background ..................................................................................................... 6 Argument ..................................................................................................................... 6
I. Plaintiffs Are Likely to Succeed on the Merits...........................................6 A. The Mandate violates RFRA. ................................................................ 6 1. The Mandate substantially burdens Plaintiffs’ exercise of religion.7 2. Other means would be less restrictive of Plaintiffs’ religious exercise. ........................................................................................... 9 3. The Mandate is not justified by a compelling interest...................11 B. The Mandate violates Plaintiffs’ right to Free Exercise of Religion. . 19 1. The Mandate is not generally applicable because it disfavors religion. .......................................................................................... 19 2. The Mandate is not neutral towards religion. ................................ 21 3. The Mandate fails strict scrutiny. .................................................. 24 C. The Mandate violates the Establishment Clause.................................24 D. The Mandate violates Plaintiffs’ Freedom of Speech. ........................ 26
II. Plaintiffs Will Suffer Irreparable Harm Absent an Injunction. ................... 27 III. An Injunction Will Cause No Harm to Defendants.....................................28 IV. The Public Interest Favors a Preliminary Injunction...................................28
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Conclusion ........................................................................................................... 29 Certificate of Service ........................................................................................... 31
TABLE OF AUTHORITIES Cases Att’y Gen. of Okla. v. Tyson Foods, Inc.,
565 F.3d 769 (10th Cir. 2009) .......................................................................... 6 Blackhawk v. Pennsylvania,
381 F.3d 202 (3d Cir. 2004) ........................................................................... 21 Braunfeld v. Brown,
366 U.S. 599 (1961) ....................................................................................... 22 Brown v. Entm’t Merchs. Ass’n,
131 S. Ct. 2729 (June 27, 2011) ............................................................... 12–14 Cal. Democratic Party v. Jones,
530 U.S. 567 (2000) ....................................................................................... 11 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520 (1993) ................................................................................passim City of Boerne v. Flores,
521 U.S. 507 (1997) ....................................................................................... 11 Colo. Christian U. v. Weaver,
534 F.3d 1245 (10th Cir. 2008) ............................................................ 2, 24, 26 Elrod v. Burns,
427 U.S. 347 (1976) ....................................................................................... 28 Employment Division v. Smith,
494 U.S. 872 (1990) ......................................................................................... 7
iii

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Fraternal Order of Police v. City of Newark, 170 F.3d 359 (3d Cir. 1999) ................................................................... 7–8, 21
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) ................................................................................passim
Hurley v. Irish-Am. Gay, Lesbian, & Bisexual Group of Boston, 515 U.S. 557 (1995) ....................................................................................... 27
Jolly v. Coughlin, 76 F.3d 468 (2d Cir 1996) .............................................................................. 28
Kikumura v. Hurley, 242 F.3d 950 (10th Cir. 2001) ........................................................................ 28
Larson v. Valente, 456 U.S. 228 (1982) ....................................................................................... 24
Pacific Frontier v. Pleasant Grove City, 414 F.3d 1221 (10th Cir. 2005) ...................................................................... 28
RoDa Drilling Co. v. Siegal, 552 F.3d 1203 (10th Cir. 2009) ...................................................................... 29
Sherbert v. Verner, 374 U.S. 398 (1963) ..................................................................................... 7–9
Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) ........................................................................ 28
Thomas v. Review Board, 450 U.S. 707 (1981) ......................................................................................... 7
Thomas v. Collins, 323 U.S. 516, 530 (1945) ............................................................................... 11
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 624 (1994) ....................................................................................... 27
iv

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United States v. Friday, 525 F.3d 938 (10th Cir. 2008) ........................................................................ 16
Utah Licensed Beverage Ass'n v. Leavitt, 256 F.3d 1061 (10th Cir. 2001) ................................................................ 28–29
Wilson v. NLRB, 920 F.2d 1282 (6th Cir. 1990) .................................................................. 24–25
Wisconsin v. Yoder, 406 U.S. 205 (1972) ..................................................................................... 7–8
Wooley v. Maynard, 430 U.S. 705 (1977) ................................................................................. 26–27
W.V. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) ....................................................................................... 27
Statutes 26 U.S.C. § 4980D...................................................................................................5, 9 26 U.S.C. § 4980H.............................................................................................5, 9, 15 26 U.S.C. §§ 5000A(d)(2)(a).....................................................................................16 29 U.S.C. § 1132 ..................................................................................................... 5, 9 42 U.S.C. § 300gg-13(a)(4) ......................................................................................... 4 42 U.S.C. § 2000bb et seq. .................................................................................passim 42 U.S.C. § 2000cc-5(7)(A) ........................................................................................ 7 Pub. L. 111-148, §1563(e)-(f) ..................................................................................... 5
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Regulations 75 Fed. Reg. 41726......................................................................................................4 76 Fed. Reg. 46621.............................................................................................passim 77 Fed. Reg. 8725..................................................................................................5, 20 77 Fed. Reg. 16501....................................................................................................10
Other Authorities ACLU Press Release, “ACLU Applauds CA Supreme Court Decision Promoting
Women’s Health and Ending Gender Discrimination in Insurance Coverage” (Mar. 1, 2004).........................................................................23–24 CBS News “Feds to stop funding Texas women's health program” (Mar. 9, 2012).................................................................................................13 Guttmacher Institute, “Facts on Contraceptive Use in the United States,” June 2010........................................................................................................12 HHS, “A statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius,” (Jan. 20, 2012) ............................................................... 12 HRSA, http://www.hrsa.gov/womensguidelines/ ....................................................... 4 HealthCare.gov, “Small Business” ............................................................................ 15 HealthReform.gov, “Fact Sheet: Keeping the Health Plan You Have: The Affordable Care Act and “Grandfathered” Health Plans” ............................. 15 New York Times, “Rule Shift on Birth Control Is Concession to Obama Allies” (Feb. 10, 2012) ............................................................................................... 18
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INTRODUCTION Defendants seek to force citizens to viol ate their sincerely held religious beli efs merely because those citizens operate a busin ess in the United States of America. Defendants’ national m andate of birth control and abortifac ient coverage in healt h insurance (hereinafter “Mandate”) 1 disregards religious conscience rights that are enshrined in federal statutory and constitutional law. Those rights squarely protect the Plaintiffs in this case, the Newland fam ily and Hercules Industries. The Mandate’s burdens on Plaintiff s’ beliefs cannot be reconciled with the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (RFRA), because (am ong many reasons) there are obvi ous less-religiously-restrictive means for the gover nment to pursue free contraception, abortifacients and sterilization, such as for the government to subsidize it. Defendants’ own be havior shows that thei r Mandate is not in furtherance of a compelling interest “of the hi ghest order” (as required by Church of the Lukumi Babal u Aye, Inc. v. City of Hialeah , 508 U.S. 520, 546 (1993)). They offer a multitude of secular and even religious exemptions to the Mandate, but refu se to respect the beliefs of Plaintiffs. The Mandate do es not apply to ap proximately 100 million employees in “grandfathered” plans, the Amish, small employers, self-serving churches, and others. This arbitrary regime of exemptions furt her illustrates that the Mandate violates the religion clauses of the First Amendment. The Supreme Court insists that a law
1 As described below, the Mandate consists of a conglomerate of regulations, guidelines, indirect statutory authority and penalties.
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cannot burden religious exercise while offering such a variety of other exemptions. See, e.g., id. at 542–46; Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal , 546 U.S. 418, 432–37 (2006). Such a scheme is not “neutral” or “generally applicable.”
The Mandate also engages in entanglement with and hos tility to religious beliefs in violation of the First Amendment’s Establishment Clause. Defendants have purported to decide who is, and w ho is not, sufficiently “religious” to receive the largesse of their accommodations. The Mandate attempts to marginalize certain expressions of religious beliefs by declaring that entities do not qualify for an exemption unless they are churches or religious orders that prim arily serve, hire, and inculcate beliefs upon their own adherents. This establishes a ca ste system of religious believers , favoring som e while punishing others, such as the Plaintiffs he re. This is gover nment establishment of religion in one of the m ost basic senses of the phrase. Colo. Christian U. v. Weaver, 534 F.3d 1245, 1257 (10th Cir. 2 008). Defendants are, additio nally, violating Plaintiffs’ freedom not to speak through the “counseling” that the Mandate requires.
Defendants’ illegal Mandate pos es an urge nt threat to the Newlands and their family business Hercules Industries. Th e Mandate will force th em to implement, starting in August 2012, the pr ocess of inserting objectionable items into their November 1, 2012 health plan. If this Court does not issue preliminary injunctive relief against the applicability of the Mandate to Plaintiffs prior to August 1, Defendants will irreparably trample on Plaintiffs’ federal rights and injure their ability to obtain final relief.
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FACTUAL BACKGROUND As is set forth in Plaintiffs’ V erified Complaint, incorporated herein by this reference, Plaintiffs are a family that runs an HVAC manufacturing business in Denver. Verified Complaint (“VC”) ¶ 11–17 (12-cv-1 123, Doc. # 1). William, Paul and James Newland and Christine Ketterhagen are sibli ngs who together are the full ow ners and Board of Directors of Herc ules Industries, Inc. Id. William Newland is also the President of Hercules. Id. His son Andrew is the Vice Pr esident, and will take over as President starting January 2, 2013. Id. Together the Newlands are responsibl e for all of Hercules’ operations, which include 265 full-time employees. VC ¶¶ 17, 38. The Newlands are Catholics, and they st rive through their operation of Hercules (and in the other aspects of their lives) to fo llow the teachings of the Catholic Church. VC ¶¶ 27–29, 31, 34. The Newlands’ commitment to Ca tholic religious ethics permeates their m anagement of Hercules. Id. They have established a m ission statement of Hercules that strives for th e holistic good of their employees, including “spiritually.” VC ¶ 33. In recent years under the Newlands’ management, Hercules has donated hundreds of thousands of dollars to Ca tholic educational, evangelistic, religious and charitable efforts in thei r community. VC ¶ 35. For several years the Newlands have implemented a program within Herc ules to m ore thoroughly conform its management and com pany culture to religious ethical principles that derive from their Catholic beliefs about how people flourish in the workplace and beyond. VC ¶ 36.
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In exercise of their sin cerely and deeply held Cathol ic beliefs, Plaintiffs omit

contraception (which includes but is not limited to drugs they deem to be abortifacient)

and sterilization from their em ployee health insurance plan. VC ¶¶ 30–32, 41.

Plaintiffs self-insure that plan, a nd the next plan-year begins November 1, 2012. VC ¶¶

39–40. To put the details in place for that November 1 plan, and especially to make any

changes, Plaintiffs must start logistical arrangements by August 1, 2012. VC ¶ 43.

Defendants have mandated that Plaintiffs violate their deeply held religious beliefs

by inserting coverage of contraception, a bortifacients, sterilization, and educ ation and

counseling in favor of the sam e into their employee health plan starting in the November

1, 2012 plan year. VC ¶¶ 54–60, 66–71, 87. The Patie nt Protection and Afforda ble

Care Act of 2010 (P PACA) did not require this Mandate. But it did require that health

plans include cover age of yet-to-be-spec ified preventive health services, including

preventive care items for women, at no

cost-sharing to patie nts. 42 U.S. C.

§ 300gg-13(a)(4). Defendants issued regulations ordering HHS’s Health Resources a nd

Services Administration (HRSA) to deci de what w ould be m andated as women’s

preventive care. 75 Fed. Reg. 41726–60 (July 19, 2010). HRSA issued such guidelines

in July 2011, m andating that pr eventive care for wom en include “All Food and Dr ug

Administration approved contraceptive method s, sterilization pro cedures, and patient

education and counseling for all wo

men with reproductive capacity.”

http://www.hrsa.gov/womensguidelines/ . Very shortly thereafter Defendants issued an

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“interim final rule” endorsing HRSA’s guidelines as applied to plan years beginning after

August 1, 2012, and granting “additional discretion” to HRSA to exempt some religious

objectors from the Ma ndate, according to a sp ecific religious defi nition. 76 Fed. Reg.

46621–26 (Aug. 3, 2011). At last, Defendants issued final regulations by adopti ng the

Aug. 3 regulations “without change.” 77 Fed. Reg. 8725–30 (Feb. 15, 2012).

The Mandate triggers a variety of penalties against Plaintiffs if they do not violate

their religious beliefs. VC ¶¶ 54–60.

Section 1563 of PP ACA incorporates the

preventive care requirement into the Internal Revenue Code as well as ERISA. Se e

“Conforming Amendments,” P ub. L. 111-148, §1563(e)-(f). This results i n penalties

through the Treasury Departm ent of approximately $100 per em ployee per day on

Plaintiffs if they continue providing thei r employees with ge nerous health insurance

coverage but omit the mandated items to wh ich they object. 26 U. S.C. § 4980D.

Furthermore, the law imposes a $2,000 per employee per year penalty on Plaintiffs if they

omit health insurance altogether. 26 U.S.C. § 4980H. Meanwhile, the Labor Department

as well as Plaintiffs’ plan pa rticipants are authorized to sue Plaintiffs for omitting the

objectionable mandated coverage, and those suits can specifica lly force the Plaintiffs to

violate their beliefs by providing the objectionable coverage`. 29 U.S.C. § 1132.

This Court is Plaintiffs’ only r ecourse from the Mandate’s assault on their

religious freedom. VC ¶ 91. Plaintiffs’ health plan is not grandfat hered from the

Mandate, nor does it meet the variety of other secular or religious exemptions Defendants

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and federal law have chosen to provide. VC ¶¶ 64, 74, 78. Plaintiffs have no adequate remedy at law. VC ¶ 92. U nless this C ourt orders prelim inary injunctive relief to Plaintiffs before August 1, 2012, so as to prevent the Mandate’s applicability to them, Plaintiffs will suffer irreparable harm by Defendants’ coercion, because it blatantly violates longstanding religious conscience protections found in federal statute and the constitution. VC ¶ 91.
ARGUMENT A preliminary injunction motion turns on four factors: (1) likelihood of success on the merits; (2) likeliho od that the movant will suffer irreparable ha rm in the absence of preliminary relief; (3) the balance of equ ities tips in the movant’s favor; and (4) the injunction is in the public interest. Att’y Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009). Each factor favors injunctive relief here. I. Plaintiffs Are Likely to Succeed on the Merits. A. The Mandate violates RFRA. Defendants’ Mandate is a textbook violation of the Religious Freedom Restoration Act (RFRA). That statute provides: (a) In general
Government shall not substantially burden a person’s exercise of religion even if the burd en results from a rule of general applicability, except as provided in subsection (b) of this section.
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(b) Exception Government may substantially burden a person' s exercise of religion
only if it demonstrates that application of the burden to the person— (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive mean s of furt hering that compelling governmental interest.
42 U.S.C. 2000bb-1. RF RA applies against actions of the federal gover nment. O Centro Espirita, 546 U.S. at 424 n.1. RFRA adopts a strict scrutiny rule against federa l burdens of religious exercise that Congress deemed to have been curtailed in Employment Division v. Smith, 494 U.S. 872 (1990). See O Centro Espirita, 546 U.S. at 424.
1. The Mandate substantially burdens Plaintiffs’ exercise of religion. Plaintiffs’ operation of thei r health insurance plan according to their religious beliefs is the “exercise of religion” unde r RFRA. R FRA “includes any exercise of religion, whether or not com pelled by, or c entral to, a system of religious belief.” 42 U.S.C. § 2000cc-5( 7)(A). This includes not merely worship but actions in accordance with one’s religious beliefs. In Sherbert v. Verner , 374 U.S. 398, 399 (1963), a n employee’s religious beliefs forbade he r from working on Saturdays. In Wisconsin v. Yoder, 406 U.S. 205, 208 (1972), parents had religious beliefs that prohibited them from sending their children to high school. In Thomas v. Review Board , 450 U.S. 707, 709 (1981), a worker objected to participating in the production of war m aterials.2 See also Fraternal Order of Police v. City of Newark , 170 F.3d 359, 360 (3d Cir. 1999)
2 Smith reaffirmed that “the ‘exerc ise of religion’ ofte n involves not only beli ef and profession but the performance of (or abstention from) physical acts,” for example, “abstaining from certain foods or certain modes of transportation.” 494 U.S. at 877.
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(concerning a police officer’s belief that w earing a beard wa s religiously required). Therefore Plaintiffs’ operation of their busine ss in compliance with their religious beliefs against providing coverage of abortifacient, contraceptive and sterilizing items and education thereabout is part of their “exercise of religion” under RFRA.
The Mandate imposes far more than a subs tantial burden on Plaintiffs’ relig ious beliefs, because it directly man dates that they violate those beliefs. A “substantial burden” is imposed, even in indirect instances, where a law forces a person or group “to choose between following the precepts of [their] religion an d forfeiting benefits, on the one hand, and aba ndoning one of the precepts of [thei r] religion in or der to accept [government benefits], on t he other hand.” Sherbert, 374 U.S. a t 404. Sherbert held that it was “clear” that denyin g unemployment benefits to an employee was a substantial burden, even though t he law did not directly com mand her to violate her beliefs against working on Sat urdays. Id. at 403–04. Here, the coer cion is even more direct: a mandate that Plaintiffs’ violate their beliefs against offering coverage of certain items.
In Yoder, the Court treated it as a substantial burden when the parents who refused to send their children to high school “were fined the sum of $5 ea ch.” 406 U.S. at 208. Here, Plaintiffs face crippling fines and la wsuits unless they violate their religious principles by providi ng coverage of contraception a nd related items to which they religiously object. Defendant s’ Mandate imposes penalties of $100 per employee per day if they omit these items from their plan , and $2,000 per em ployee per year if they
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drop health insurance (plus the inherent harm to their employees, and to their competitive provision of benefits, that would come from dropping coverage). 26 U.S.C. §§ 4980D & 4980H. The Mandate further au thorizes lawsuits by plan pa rticipants and the Secretary of Labor to force the Plainti ffs to pr ovide coverage in vi olation of their beliefs. 29 U.S.C. § 1132. The mere fa ct that the Ma ndate creates a federal law requi rement on Plaintiffs puts them at risk in in numerable arrangements, such as contracts, that may require them to comply with “all federal laws.”
The Supreme Court considere d “a fine imposed against appellant” to be a quintessential burden. Sherbert, 374 U.S. at 403–04. That is the penalty present here.
2. Other means would be less restrictive of Plaintiffs’ religious exercise. Before this memo addresses why Defendants cannot show a compelling interest, it is worthwhile considering that even if such an interest existed, the government could not possibly show that the Mandate is “the least restrictive means of fu rthering” it under 42 U.S.C. 2000bb-1. Defenda nts bear the burden to s how both of these elements—compelling interest and least restrictive means—in cluding at the preliminary injunction stage. O Centro Espirita , 546 U. S. at 428–30 ( “[T]he burdens at the preliminary injunction stage track the burde ns at trial. . . . RFRA challenges shoul d be adjudicated in the same manner as cons titutionally mandated ap plications of the [compelling interest] test,” such as for speech claims under the First Amendment.).
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Defendants fail the least restrictive mean s test simply becau se the government could, if the political will existed, achieve its desire for free coverage of birth control by providing that benefit itself . Rather than coerce Plaintiffs to provide this coverage in their plan, the gover nment could possibly create its own “c ontraception insurance” plan covering all the items the Mandate requires, and then allow free enro llment in that plan for whomever the government seeks to cover. Or the gover nment could directly compensate providers of contra ception or sterilization. Or the government could offer tax credits or de ductions for contraceptive purchases. Or the government might impose a mandate on the contraception manufacturing industry to give its items aw ay for free. 3 These and other options could fully achieve Defendants’ goal while being less restrictive of Plaintiffs’ beliefs. There is no essential ne ed to coerce Plaintiffs or other religious objectors to provide the objectionable coverage themselves.
Defendants cannot deny that the government could pursue its goal m ore directly. This conclusion is not onl y dictated by c ommon sense, but is also prove n because the federal government and many states already directly subsidize birth control coverage for many citizens through Title XIX/Medicaid and Title X/Family Planning Services funding. Thus the C ourt’s RFRA analysis may stop here: the Mandate is not the least restrictive means of furthering Defendants’ interest. Other options may be more difficult
3 And by virtue of Defendants’ re cent attempts to quell political backlash by claiming they may create an “accommodation” for some additional relig ious entities (but still not f or Plaintiffs), Defendants are necess arily admitting that the Mandate is not the least res trictive means to achieve their goals. See 77 Fed. Reg. 16501–08 (Mar. 21, 2012)
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to pass as a political matter (which furthe r illustrates the public ’s disbelief that th e Mandate’s interest is “compelling”). Indeed PPACA itself does not require the Mandate. But political difficulty does not exonerate the Mandate’s burdens on Plaintiffs religious beliefs, or allow it to pass RFRA’s strict sc rutiny. Since many methods less restrictive of religious beliefs exist, this alone fata lly undermines Defendants’ burden under RFRA and the Mandate from applying to Plaintiffs.
3. The Mandate is not justified by a compelling interest. Defendants cannot establish that their coerci on of Plaintiffs is “in furtherance of a compelling governmental intere st.” RFRA, with “the strict scrutiny test it adopted,” O Centro Espirita, 546 U.S. at 430, im poses “the most demanding test know n to constitutional law.” City of Boerne v. Flores , 521 U.S. 507, 534 (1997). A compelling interest is an interest of “the highest order,” Lukumi, 508 U.S. at 546, a nd is implicated only by “the gravest abuses, e ndangering paramount interests,” Thomas v. Collins, 323 U.S. 516, 530 (1945). Defendants cannot propose su ch an interest “in the abstract, ” but must show a compelling interest “i n the circumstances of this ca se” by looking at the particular “aspect” of the interest as “addressed by the law at issue.” Cal. Democratic Party v. Jones, 530 U.S. 567, 584 ( 2000); O Centro Espirita, 546 U.S. at 430–32 (RFRA’s test can only be satisfied “through application of the challenged law ‘to the person’—t he particular claimant”); see also Lukumi, 508 U.S. at 546 (rejecting t he assertion that
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protecting public health was a compelling interest “in the cont ext of these or dinances”). The government must “specifical ly identify an ‘actual problem’ in need of sol ving” and show that coercing Plaintiffs is “a ctually necessary to the solution.” Brown v. Entm’ t Merchs. Ass’n, 131 S. Ct. 2729, 2738 (June 27, 2011). If Defendants’ “evidence is not compelling,” they fail their burden. Id. at 2739. To be comp elling, the government’s evidence must show not merely a correlati on but a “caus[al]” nexus between their Mandate and the grave intere st it supposedly serves. Id. The government “bears the risk of uncertainty . . . ambiguous proof will not suffice.” Id.
Defendants’ interest in coercing the Plaintiffs to provide coverage of contraception and sterilization is not compelling. No “gra ve” or “param ount” crisis justifies this Mandate on Plaintiffs. Neve r in the hi story of the U nited States has the fede ral government forced religiously objectin g employers to cover contraception and sterilization in their health plan s. Even to this day, no s uch federal mandate exists—the Mandate in this case does not go into effect until August 1, 2012 at the earliest. Yet a large majority of Americans alre ady have contraceptive coverage.4 Defendant Sebelius has admitted that “contraceptive services are available at site s such as community health centers, public clinics, and hospitals with in come-based support.” 5 Such “income-based
4 Nine out of ten em ployers, pre-Mandate, already provide a “full range” of contracep tive coverage. Guttmacher Institute, “Facts on Contraceptive Use in the United States, ” June 2010, available at http://www.guttmacher.org/pubs/fb_contr_use.html (last accessed Apr. 28, 2012). 5 “A statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius,” (Jan. 20, 2012), available at http://www.hhs.gov/news/press/2012pres/01/20120120a.html (last accessed Apr. 28, 2012).
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support” is available through fe deral government subsidies in Titl e XIX/Medicaid and Title X/Family Planning Services, as well as through subsidies by state governments. 6

And the availability of contr aceptive items for sale is ubi quitous, now reaching even

vending machines on college c ampuses. De fendants therefore cannot claim a grave

interest in scarcity of contracept ion in health insurance. To the extent they claim an

interest in increasing access to contraception on the margins, Brown declared:

“government does not have a com pelling interest in each m arginal percentage point by

which its goals are advanced.” 131 S. Ct. at 2741.

Defendants cannot show, as they must, a co mpelling interest with respect to the

even-tinier fraction of American employe es who wor k for religiously-objecting

employers. A generalized, “abstract” interest in the benefits of contraception for women

will not suffice; Defendants must demonstrate th eir interest with respect to Plaintiffs’

own employees, see O Centro Espirita, 546 U.S. at 430–32, pr oving the government has

no choice but to coerce Plaintiffs. Yet the Mandate referen

ces no scientific and

compelling data about Plaintiffs’ employees, and no data even about the broader category

6 Recently Defendants showed that they do not believ e a compelling in terest exists to promote contraceptive access. In Texas, HHS has deci ded to cease providing 9 0% of funding of a $40 million Texas Women’s Health family planning program. Texas had been using that funding to provide thousands of women with family planning, but Texas required f unding providers to not, directly or indirectly, provide abortion. On this basis alone HHS w ithdrew federal funding, which Defendant Sebelius admitted would cause “a huge gap in family planning.” HHS decided that protecting the interests of abortion providers is more important than providing contraception access. See CBS News “Feds to stop funding Texas women's health program” (Mar. 9, 2012), available at http://www.cbsnews.com/8301-501363_162-57394686/feds-to-stop-funding-texaswomens-health-program/ (last accessed Apr. 28, 2012).
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of objecting religious employers’ employees. Defendants cannot show a crisis am ong

those employees. In O Centro Espirita, the Court held eviden ce to be insufficient

showing that Schedule I controlled substances were “extremely dangerous,” because that

“categorical” support coul d not meet the gove rnment’s RFRA burde n to consi der the

“particular” exception requested by the plaintiffs. Id. at 432. The government’s lack of

particular evidence here similarly cannot satisfy their compelling interest burden.

Defendants’ burden must be supported eve n more precisely than this. They must

show that their alleged harm to Plaintiffs’ employees is not m ild, but extre me: that it

threatens the “graves t,” “highest” and m ost “paramount” consequences for Plaintiffs’

employees absent the Mandate. But the

Mandate’s regulations cite no rash of

contraception-deprived deaths among employees of religiously-devout employers. They

also cite no pandemic of unwanted births causing catastrophic consequences among such

employees. It could be that employees of Plaintiffs and similar entities experience zero

negative health consequences absent the Manda te, for any number of reasons . At best,

Defendants do not know. But Defendants “bear the risk of uncertainty,” a nd cannot

satisfy their burden under RFRA with speculation and generalizations.

And under Brown, Defendants must additionally demonstrate a causal connection

between some allegedly grave harm to Plain tiffs’ employees, and Plaintiffs’ failure to

comply with the Mandate. But even if gravely at-risk employees exist, it is possible that

they all obtain the m andated items outside of Plaintiffs’ coverage. Defendants cannot

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connect the Mandate to causation of grave harm among Plaintiffs’ employees. See also O Centro Espirita , 546 U.S. at 438 (w here “the Government did not even submit evidence addressing” th e specific consequences of an a lleged interest, but onl y offered affidavits “attesting to the general im portance” of that interest, “under RFR A invocation of such general interests, standing alone, is not enough.”)
The most ironic flaw in Defenda nts’ assertion of a compelling interest is that the federal government itself has vol untarily omitted millions of employees from the Mandate for secular and religious reasons , but Defendants still refuse to exempt Plaintiffs. The Mandate does not apply to th ousands of plans that are “grandfathered” under PPACA. See Mandate, 76 Fed. Reg. at 46623 & n.4. The government estimates that close to 100 million employee s will be in grandfathered plans not subject to the Mandate in 2013.7 In addition, employers with less than 50 full-time employees are not required by PPACA to provide health insurance coverage at all, which may allow them to avoid Mandate. 8 Also, the Ma ndate does not a pply to m embers of a “recognized religious sect or division” that conscientious ly objects to acceptance of publi c or private
7 HealthReform.gov, “Fact Sheet: Keeping the Hea lth Plan You Have: The Affordable Care Act and “Grandfathered” Health P lans,” available at http://www.healthreform.gov/newsroom/ keeping_the_health_plan_you_have.html (last accessed Apr. 28, 2012) (estim ating that 55% of 113 million large-employer employees, and 34% of 43 million small-employer employees, will be in grandfathered plans in 2013). 8 See 26 U.S.C. § 4980H(c)(2) (em ployers are not subject to penalty f or not providing health insurance coverage if they have less than 50 full-time employees); HealthCare.gov, “Sm all Business,” available at http://www.healthcare.gov/using-insurance/employers/small-business/ #provide (last accessed Apr. 28, 2012).
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insurance funds. 26 U.S.C. §§ 5000A(d)(2)(a)(i) and (ii ). And the Mandate exempts from its requirements “religious employers” defined as churches or religious orders that primarily hire and serve their own a dherents and that have the pur pose of inculcating their values. Mandate, 76 Fed. Reg. at 46626. The federal government has decided that employers in any of these categories simply do not have to comply with the Mandate.
These are massive exemptions that cann ot coexist with a compelling interest against Plaintiffs. Defendants cannot claim a “grave” or “paramount” interest to impose the Mandate on Plaintiffs or other religious objectors while allowing nearly 100 million employees to be “unprotected.” “[T]he government is generally not permitted to punish religious damage to its compelling interests while letting equally s erious secular damage go unpunished.” United States v. Friday, 525 F.3d 938, 958 (10th Cir. 2008). “[A] law cannot be regarded as protecting an intere st ‘of the highest order’ when it leaves appreciable damage to that supposedly vital interest unprohibited.” Lukumi, 508 U.S. at 520. No compelling interest exists when the government “fails to enact feasible measures to restrict other conduct produ cing substantial harm or allege d harm of the sam e sort.” Id. at 546–47. The exemptions to the Ma ndate “fatally undermine[] the Government’s broader contention that [its la w] will be ‘necessarily . . . undercut’” if Plaintiffs are exempted too. O Centro Espirita, 546 U.S. at 434.
Defendants’ immense grandfathering exemption in particular has nothi ng to do with a determination that those nearly 10 0 million Americans do not need contraceptive
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coverage while Plaintiffs’ employees somehow do. The exemption was instead a purely political maneuver to garner votes for PPACA by letting the pr esident claim, “If you like your health care plan, you can keep your health care plan.” If the government can toss aside such a massive group of employees for political expediency, their “interest” in mandating cost-free birt h control coverage cannot possibly be “par amount” or “grave” enough to justify coercing Plaintiffs to violate their re ligious beliefs. See O Ce ntro Espirita, 546 U.S. at 434 (“Nothing about the un ique political status of the [exempted peoples] makes their members immune from the health risks the Government asserts”).
The Mandate on its face also is inconsistent with a compelling interest rationale. Defendants have used their discretion to writ e a “religious employer” exemption into the Mandate for certain self-focused churc hes. Mandate, 76 Fed. Re g. at 46626. How can Defendants claim that allowing religious exemptions would undermine an alleged compelling interest, when they have allowed religious exemptions? There is no nexus between the Mandate exem ption’s criteria and Defendants’ alleged in terest, such that a compelling interest exists for non-exempt entities but is ab sent for exempt ones. On the contrary, Defendants essentially admit that em ployees of religious objectors do im plicate their “interest,” because Defendants refuse to expand their exemption to include more religious employers. Defendants have simply engaged in political line-drawing based on what the president’s political base will accept, weighed agai nst how much election-year
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resistance he may encounter. 9 P laintiffs cannot be denied a religious exemption on the premise that Defendants can pick and choose between religious objectors. See O Centro Espirita, 546 U.S. at 434 (since the law doe s “not preclude exceptions altogether; RFRA makes clear that it is the oblig ation of the courts to consider” w hether exceptions” must also be afforded because of RFRA).
In O Centro Espirita the Supreme Court held that no compelling interest existed behind a l aw that had a m uch more urgent goal—regulating extremely dangerous controlled substances—and that had m any fewer exemptions than the broad swath of omissions from the Mandate. In that case the Court dealt with the Controlled Substances Act’s prohibition on “all use,” with “no exception,” of a hallucinogenic ingredient in a tea along with other Sc hedule I substances. 546 U.S. at 423, 425. But because elsewhere in the statute there was a narrow religious exemption for Native American use of a different substance, peyote, the Court hel d that the gover nment could not m eet its compelling interest burden even in its generalized interest in to regulate Schedule I substances as applied to the plaintiffs in that case. Id. at 433. Even moreso here, the government cannot satisfy it s burden by pointi ng to ge neral health benefits of contraception. Halting the use of extremely dangerous drugs is far more urgent than forcing religious objectors to provi de contraception coverage. Defenda nts’ grant of
9 The New York Times describes in great detail the politically-driven deliberation that led to the Mandate. “Rule Shift on Birth Control Is Concession to Obama Allies” (Feb. 10, 201 2), available at http://www.nytimes.com/2012/02/11/health/policy/obama-to-offer- accommodationon-birth-control-rule-officials-say.html?pagewanted=all (last accessed Apr. 28, 2012).
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secular and religious exemptions for milli ons of other employees betrays any allege d compelling interest they may have in forcing Plaintiffs to comply with the Mandate against their religious beliefs.
B. The Mandate violates Plaintiffs’ right to Free Exercise of Religion. The Mandate also violates th e free exercise clause of the First Amendment of the United States Constitution. “At minimum, the protections of the Fr ee Exercise Clause pertain if the law at issue discriminates agains t some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons.” Lukumi, 508 U.S. at 532. When the “object of a law is to infring e upon or restrict prac tices because of their religious motivation, the law is not ne utral, and it is invalid unless it is justified by a compelling interest and is narrowly ta ilored to advance that interest.” Id. at 533. The object of a law can be determined by examining its text and operation. Id. at 534–35.
1. The Mandate is not generally applicable because it disfavors religion. The Mandate lacks “general applicability.” Laws lack general applicability when they are underi nclusive. Id. at 543. “The Free Exerci se Clause pr otects religious observers against unequal treatment, and inequality results when a legislature decides that the governmental interests it seeks to advanc e are worthy of being pursue d only against conduct with a relig ious motivation.” Id. at 542–43 (internal quotation m arks and citation omitted). In Lukumi, the Court said that the unde rinclusiveness of city’s ban on animal sacrifice was “substantial” because it “fail[ed] to prohibit nonreligious conduct
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that endangers these interests [in public health and preventing animal cruelty] in a similar or greater degree than Santeria sacrifice does.” Id.
The Mandate is massively underinclusive, yet Defendants refuse to offer Plaintiffs an exemption. As described above, nearly 100 million em ployees will be exempt from the Mandate in 2013 because th eir plans will be grandfathered. M andate, 76 Fed. Reg. at 46623 & n.4; see infra n.7. The Mandate also does not apply to small employers who have the option of dr opping insurance; to re ligious sects opposed to insur ance; and t o “religious employers” that the Mandate defi nes as exem pt. Health insurance plans covering millions of American s can omit all the mandated ite ms and cause all the same harm alleged by Defenda nts; But Plaintiffs still must co mply even in violation of their religious beliefs.
In the case of the grandfat hering exemption, those employees are exempted from the Mandate for reasons purely based on the politics of passing PPACA, not based on any scientific rationale. There is no physiologi cal difference between humans that work for religious-minded employers and other humans, making c ontraception beneficial for the latter but not for the former. Defendants have chosen to offer an exemption for some religious employers ba sed on politically-derived criteria, but they refuse to exempt Plaintiffs based on their religious beliefs. The overall massive underinclusiveness of the Mandate, selectively allowing secular and religious exemptions, shows that it is a quintessential not-generally-applicable law.
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The Mandate is not “generally applicable” because it contains both categorical and discretionary exemptions for a variety of reasons, but refuses to exempt objectors such as Plaintiffs. In cases striking down religious ly burdensome laws containi ng exemptions, then-Judge Alito explained fo r the Third Circuit that st rict scrutiny applies when discretionary or categorical exem ptions exist but religious objections are denied. Blackhawk v. Pennsylvania , 381 F.3d 202, 209– 11 (3d Cir. 2004); Fraternal Order of Police, 170 F.3d at 365. Here, in addition to the Mandate’s ca tegorical exemptions such as for grandfathered plans, Defenda nts admit that they possess “discretio n” over the exemption they cr eated for “religious employers” and the scope of who is covered . Mandate, 76 Fed. Reg. at 46623 –24; 77 Fed. Reg. at 8726. Defendants admit that they could have exempted Plaintiffs and ot her non-church religious objectors, but they c hose not to. Meanwhile, their scheme exempts tens of millions for secular reasons.
2. The Mandate is not neutral towards religion. The Mandate’ exemptions also show it is not neutral to wards religion. “A law lacks facial neutrality if it refers to a religious practice without a secular meaning discernible from the language or conte xt.” Lukumi, 508 U.S. a t 533. The Mandate explicitly exempts some “religious employers” but not others. This exemption is based on a variety of religi ous criteria including w hether the “inculcation of religi ous values is the purpose” of the entity, whether “persons who share the religious tenets of” the group are those whom the group primarily hires or serves, and whether the group is a churc h or
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religious order. Mandate, 76 Fed. Reg. at 46626. The religious employer definition in the Mandate imposes Defendants’ theological notion that employers are only religious if they are churches who stay in their own four walls and focus on self-serving pur poses. Defendants have created a caste system of religious e mployers, favoring one ki nd of objector because their religion is insular, while penalizing Plaintiffs because they purs ue their religious tenets within so ciety instead of in church. The text of the Mandate itself therefore shows an unconstitu tionally discriminatory “effe ct of a law in its real operation,” thus showing “strong evidence” that religious objectors beyond Defendants’ narrow definition are the “object” of the Mand ate, rather than contraceptive access. Lukumi, 508 U.S. at 535.
The Mandate constitutes “an impermissible attempt to target” religious objectors that are not ins ularly-focused. Id. Indeed, the Mandate’s criteria impose a governmental view of what really “counts” as religion, even though some religions do not even use the voca bulary of “churches” and do not primarily exerci se their beliefs in isolation. This lack of neutrality regarding the notion of what religion is bespeaks of a Free Exercise Clause violation. See Braunfeld v. Brown , 366 U.S. 599, 607 (1961) (noting that “[i]f the purpose or effect of a la w is to impede the observance of one or all religions or is to discrimina te invidiously between religions, that la w is constitutionally invalid even though the burden may be characterized as being only i ndirect.”); see also Lukumi, 508 U.S. at 532 (identif ying a Free Exercise Clause viol ation where a policy
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prefers some religions to others). As in Lukumi, the effect of the Mandate is to pick and choose between specifically
religious objectors. There, the Supreme Court found an ordi nance against animal sacrifice not facially neutral because its ope rative terms included “sacrifice” and “ritual,” terms not typically associated with secular meanings. Lukumi, 508 U.S. at 534. But in practice, it was clear that the object of the ordinance was to e xclude the “religious exercise of Santeria church members.” Id. at 535. F or example, the ordi nance exempted from its prohibition almost all killings of animals, except for religious sacrifice. Id. at 536. The Court called this a “religious gerrymander,” an impermissible attempt to target [the church] and their religious practices.” Id. at 535. As in Lukumi, the Mandate here exempts “religious employers” that primarily engage in the “inculcation of religious values” and focus on “persons who share the[ ir] religious tenets” and are churc hes or religious orders. Yet the Mandate also does not apply to hundreds of millions of employees for secular reasons, including that th ey are in grandfathered plans or w ork for small employers, and for religious reasons if they are in a religi ous sect opposed t o insurance. The fact that most employers already cover contraception, combined with the Mandate’s constricted definition of religion, s hows that the Mandate is a thinly-veiled an attempt not to advance health but to target society’s re ligious “hold outs” who possess beliefs against provi ding such coverage.10 The Mandate and its exemptions establish
10 The Mandate’s religious em ployer definition was drafted by the ACLU in California exclud e most religious objectors. See ACLU Press Release, “AC LU Applauds CA Suprem e Court
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nothing less than a “religious gerrymander” designed to target most religions objectors to contraception, while letting millions of secular employe rs off the h ook. This demonstrates the lack of neutrality. Id. at 537–39.
3. The Mandate fails strict scrutiny. Because the Mandate is neither generally applicable nor neutral it is subject to strict scrutiny, id. at 546. As explained above, Defendants cannot meet this standard. C. The Mandate violates the Establishment Clause. The Mandate also violates the Establishment Clause of the First Amendment. The Mandate’s “religious employer” exemp tion, as discussed above, s ets forth Defendants’ notion of what “counts” as religion and what doesn’t for the purposes of who will be exempt unde r the Mandate. But the government may not a caste system of different religious organizations and belief-levels when it im poses a burden. Instead it “must treat individual religi ons and religious institutions ‘without discrimination or preference.’” Colo. Christian U. v. Weaver , 534 F.3d 1245, 1257 (10th Cir. 2008); Larson v. Vale nte, 456 U.S. 228 (1982); see also Wilson v. NL RB, 920 F.2d 1282 ( 6th Cir. 1990) (holding that section 19 of the National Labor Relations Act, which exempts from mandatory union membership any employee who “is a member of and adheres to established and traditional tenets or teachings of a bona fide religion, body, or sect which
Decision Promoting Women's Health and Ending Gender Discrimination in Insurance Coverage” (Mar. 1, 2004) (“The ACLU crafted the statutory exemption [at issue]….”), available at http://www.aclu.org/reproductive-freedom/aclu-applauds-ca-supreme-court-decision-promotingwomens-health-and-ending-gend (last accessed Apr. 28, 2012).
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has historically held c onscientious objections to joining or financially supporting labor organizations,” is unconstitutio nal because it discriminate s among religions and would involve an impermissible government inquiry into religious tenets), cert. denied, 505 U.S. 1218 (1992).
Defendants used their unfettered discreti on to pick and choos e what criteria qualify a group as “religious” enough f or an exemption, and the y imposed their constricted theological view of religion on all Americans. The Mandate’s four-pronged religious exemption emphasizing “the i nculcation of religious values” necessarily requires the government to explorer a religious organization’s purpose in imperm issible ways. The exemption deems religious organizations insufficiently “religious” if they do not focus on co-religionists in hiring and service, which would involve the government’s probing of what exactly count as the or ganization’s religious “tenets,” and w hich disfavors religious be lievers such as Plain tiffs who exercise their beliefs not by onl y working with or for Catholic s but by witnessing thei r faith by t reating everyone with dignity according to the Catholic Church’s notion of what hum an flourishing means. The exemption’s restriction of religious em ployers to a tax code provision identifying churches and religious orders, whose purpos e relates to whet her paperwork should be filed, bears no reasonable relation to Defend ants’ alleged i nterest and is de signed to discriminate against religious objectors such as Plaintiffs. Thes e factors involve the
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government in “intrusive judgments regarding contested questions of religious belief or practice” in violation of the First Amendment. Weaver, 534 F.3d at 1261.
In Weaver the T enth Circuit held uncon stitutional a discriminationamong-religions policy that is very similar to the Mandate. The discrimination among religions in that case attempted to treat “p ervasively sectarian” education institutions differently than other religious institutions, based on whether: the employees and students were of one religious persuasion; the cour ses sought to “indoctrinate”; the gover nance was tied to particular church a ffiliation; and similar factors. Id. at 1250–51. The Mandate here likewise draws its line around “religious em ployers” based on whether the people they “hire” or “serve” share the same “religious tenets,” whether its purpose is to “inculcate” values, and whether the entity is a church or affiliate. The Tenth Circuit held that such a discriminatory line violates the First Amendment, and the Court rejected a s “puzzling and wholly artificial” the governme nt’s argument that their law “distinguishes not between types of religions, but between types of institutions.” Id. at 1259–60. The Court held that “animus” towards religion is not re quired to find a First Am endment violation in the presence of such facial discrimination. Id. at 1260.
D. The Mandate violates Plaintiffs’ Freedom of Speech. The Mandate additionally violates the Firs t Amendment by coercing Plaintiffs to provide for speech that is contra ry to their religious beliefs. The “right to speak and the right to refrain from speaking are complementary components of the broa der concept of
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‘individual freedom of mind.’” Wooley v. Maynard, 430 U.S. 705, 714 (1977) (quoting W.V. State Bd. of Educ. v. Barne tte, 319 U.S. 624, 637 (1943)). Accordingly, the First Amendment protects the right to “decide what not to say.” Hurley v. Irish-Am. Gay, Lesbian, & Bisexual Group of Boston , 515 U. S. 557, 573 ( 1995) (internal quotation marks omitted). Thus, “[l]aws that compel speakers to utter or distribute speech bearing a particular message are subject to the same rigorous scrutiny” as those “tha t suppress, disadvantage, or im pose differential bur dens upon speech bec ause of it s content.” Turner Broad. Sys., Inc. v. FCC , 512 U.S. 624, 642 (1994 ). The “First Amendment protects the right of individuals to hold a point of view different from the majority and to refuse to foster, in the way [the govern ment] commands, an idea th ey find morally objectionable.” Wooley, 430 U.S. at 715. Here, the Mandate unconstitutionally coerces Plaintiffs to speak a message they find morally objectionable by requiring that they cover in their insurance plan not only contraception etc., but “patient education and counseling” in favor those items, forcing Plaintiffs to contradict their own religious beliefs.
II. Plaintiffs Will Suffer Irreparable Harm Absent an Injunction. Plaintiffs seek to c ontinue offering their employee insurance plan without
providing abortifacients, contra ception, sterilization, and counseling/education for the same, and without being subject to the Mand ate’s harsh penalties, lawsuits and other liability. Without the requested injunction, Plain tiffs will be coerced in violation of their rights under RFRA and the First Am endment, causing actual and imminent loss of their
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religious conscience rights. This is irreparable injury. Kikumura v. Hurley , 242 F. 3d 950, 963 (10th Cir. 2001) (“a plaintiff satisfies the irreparable harm analysis by alleging a violation of RFRA”); accord Jolly v. Coughli n, 76 F.3d 468, 482 (2d Cir 1996) and Stormans, Inc. v. Selecky , 586 F.3d 1109, 113 8 (9th Cir. 2009). See also Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of Fi rst Amendment freed oms, for even minimal periods of time, unquestionably constitutes irreparable injury.”)
III. An Injunction Will Cause No Harm to Defendants. The federal government has never im posed this Mandate against religious
objectors, even to t his day, since its effectiv e date at the earliest is August 1, 2012. Defendants can offer no evidence to show that harm will come to Plaintiffs’ employees if an injunction issues preventing the Mandate’s applicability in violation of RFRA and the First Amendment. Both th e ubiquity of contr aception access and gover nment subsidization thereof, and the fact that th e government has exempted nearly 100 million employees from the Mandate already, m ake it impossible for Defendants to claim that a preliminary injunction in this case will cause harm.
IV. The Public Interest Favors a Preliminary Injunction. “Vindicating First Amendment freedoms is clearly in the public interest.” Pacific
Frontier v. Pleasant Grove City , 414 F.3d 1221, 123 7 (10th Cir. 2005). See also Ut ah Licensed Beverage Ass'n v. Leavitt , 256 F.3d 1061, 1076 ( 10th Cir. 2001) (“Because we
28

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have held that Utah’s challenged statutes also unconstitutionall y limit free speech, we conclude that enjoining thei r enforcement is an appropri ate remedy not adverse to the public interest.”). The public interest is be st served by preve nting government officials from compelling individuals to violate thei r religious conscience rights pr otected by RFRA, the First Amendment and other laws.
CONCLUSION Defendants’ Mandate violates both RF RA and the First Am endment due to its massive inapplicability and its discrimination among religions. Unless this Court issues a preliminary injunction prior to August 1, 2012, when Plaintiffs need to im plement logistics for their November 1 plan-year, Plainti ffs will face the choice of vi olating their beliefs or suffering massive financial penaltie s, lawsuits, and potential other liability. Defendants would face no harm from an injunction against their illegal regulatory scheme that already exempt millions of others. Plaintiffs respectfully request that this Court issue a preliminary injunction against Defendants’ requirement that Plaintiffs cover contraception, abortifacients, sterilization, a nd counseling and educa tion for the same, in their health plan. A form of order is attached.11
11 Because the public interest in this case, the lack of any financial harm to Defendants from an injunction, and all of the other factors that weigh in Plaintiffs’ favor, Plaintiffs request that the Court impose a bond of zero dollars in this instance. RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1215 (10th Cir. 2009) (court has discretion to order no bond).
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Respectfully submitted this 30th day of April, 2012. Attorneys for Plaintiffs:

s/ Michael J. Norton

David A. Cortman, Esq.

Michael

J. Norton, Esq.

ALLIANCE DEFENSE FUND

ALLIANCE DEFENSE FUND

1000 Hurricane Shoals Road NE

7951 E. Maplewood Avenue, Suite 100

Suite D-1100

Greenwood

Village, CO 80111

Lawrenceville, GA 30043

(480)

388-8163

(770) 339-0774

(3

03) 694-0703 (facsimile)

(770) 339-6744 (facsimile)

mjnorton@telladf.org

dcortman@telladf.org

Steven H. Aden, Esq.

Kevin H. Theriot, Esq.

Gregory S. Baylor, Esq.

Erik W. Stanley, Esq.

Matthew S. Bowman, Esq.*

ALLIANCE DEFENSE FUND

ALLIANCE DEFENSE FUND

15192 Rosewood

801

G Street, NW, Suite 509

Leawood, KS 66224

Washington,

DC 20001

(913) 685-8000

(202)

393-8690

(913) 685-8001 (facsimile)

(202) 237-3622 (facsimile)

ktheriot@telladf.org

saden@telladf.org

estanley@telladf.org

gba

ylor@telladf.org

mbowman@telladf.org

*D. Colo. Bar Application Submitted.

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Case 1:12-cv-01123-JLK Document 5-1 Filed 04/30/12 USDC Colorado Page 37 of 37
CERTIFICATE OF SERVICE The undersigned counsel for Plaintiffs, Michael J. Norton, hereby certifies that the following counsel for Defendants were served with the preceding document by email and by placing the document in the mail, on April 30, 2012, at the following addresses:
Michelle Bennett, Esq. Trial Attorney U.S. Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Avenue, NW Washington, D.C. 20001 Michelle.Bennett@usdoj.gov Kevin Traskos, Esq. Chief, Civil Division Colorado U.S. Attorney’s Office Seventeenth Street Plaza, 1225 – 17th Street, Suite 700 Denver, CO 80202 Kevin.Traskos@usdoj.gov
s/ Michael J. Norton Michael J. Norton, Esq.
31

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge John L. Kane
Civil Action No. 1:12-cv-1123-JLK
WILLIAM NEWLAND; PAUL NEWLAND; JAMES NEWLAND; CHRISTINE KETTERHAGEN; ANDREW NEWLAND; and HERCULES INDUSTRIES, INC., a Colorado corporation;
Plaintiffs,
v.
KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; HILDA SOLIS, in her official capacity as Secretary of the United States Department of Labor; TIMOTHY GEITHNER, in his official capacity as Secretary of the United States Department of the Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; UNITED STATED DEPARTMENT OF THE TREASURY;
Defendants.
ORDER
Kane, J.
This matter is currently before me on Plaintiffs’ Motion for Preliminary Injunction (doc.
5). Based on the forthcoming discussion, Plaintiffs’ motion is GRANTED.
BACKGROUND
The Patient Protection and Affordable Care Act
Signed into law on March 23, 2010, the Patient Protection and Affordable Care Act
(“ACA”), Pub. L. No. 111-148, 124 Stat. 119 (2010), instituted a variety of healthcare reforms.
1

Among its many provisions, it requires most U.S. citizens and legal residents to have health
insurance, creates state-based health insurance exchanges, and requires employers with fifty or
more full-time employees to offer health insurance.1 Id. The ACA also implemented a series of
provisions aimed at insuring minimum levels of health care coverage.2 Most relevant to the
instant suit, the ACA requires group health plans to provide no-cost coverage for preventive care
and screening for women. 42 U.S.C. § 300gg-13(a)(4).3
Unlike some other provisions of the ACA, however, the preventive care coverage
mandate does not apply to certain healthcare plans existing on March 23, 2010.4 See Interim
1 In a recent decision, the Supreme Court upheld the constitutionality of the so-called individual mandate, but invalidated the portion of the Affordable Care Act threatening loss of existing Medicaid funding if a state declines to expand its Medicaid programs. Nat’l Fed’n of Indep. Bus. v. Sebelius, __ U.S. __; 183 L. Ed. 2d 450 (June 28, 2012).
2 Termed the “Patient’s Bill of Rights” these provisions require health plans to: provide coverage to persons with pre-existing conditions, protect a patient’s choice of doctors, allow adults under the age of twenty-six to maintain coverage under their parent’s health plan, prohibit annual and lifetime limits on most healthcare benefits, and end pre-existing condition exclusions for children under the age of nineteen. See Patient’s Bill of Rights available at http://www.healthcare.gov/law/features/rights/bill-of-rights/index.html (last viewed on July 27, 2012). As discussed infra at n.4, not all health plans are required to meet these conditions.
3 The ACA did not, however, specifically delimit the contours of preventive care. Instead, it delegated that responsibility to the Health Resources and Services Administration (“HRSA”). On August 1, 2011, HRSA adopted Required Health Plan Coverage Guidelines that defined the scope of women’s preventive services for purposes of the ACA coverage mandate. See HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines available at http://www.hrsa.gov/womensguidelines/ (last visited July 27, 2012). The HRSA guidelines include, among other things, “the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” Id.
4 Numerous provisions of the ACA apply to grandfathered health plans: the prohibition on pre-existing condition exclusions (group health plans only), the prohibition on excessive waiting periods (both group and individual health plans), the prohibition on lifetime (both) and annual (group only) benefit limits, the prohibition on rescissions (both), and the extension of dependent care coverage (both) to name a few. 75 Fed. Reg. at 34542. For a comprehensive
2

Final Rules for Group Health Plans and Health Insurance Coverage Relating to Status as a
Grandfathered Health Plan Under the Patient Protection and Affordable Care Act, 75 Fed. Reg.
34538,34540 (June 17, 2010). This gap in the preventive care coverage mandate is significant.
According to government estimates, 191 million Americans belong to plans which may be
grandfathered under the ACA. Id. at 34550. Although there are many requirements for
maintaining grandfathered status, see 26 C.F.R. § 54.9815-1251T(g), if those requirements are
met a plan may be grandfathered for an indefinite period of time.
In addition to grandfathering under the ACA, the preventive care guidelines exempt
certain religious employers from any requirement to cover contraceptive services.5 See Interim
Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of
Preventive Services Under the Patient Protection and Affordable Care Act, 76 Fed. Reg. 46621
(Aug. 3, 2011). The guidelines also contain a temporary enforcement “safe-harbor” for plans
sponsored by certain non-profit organizations with religious objections to contraceptive coverage
summary of the applicability of ACA provisions to grandfathered health plans, see Application of the New Health Reform Provisions of Part A of Title XXVII of the PHS Act to Grandfathered Plans, available at http://www.dol.gov/ebsa/pdf/grandfatherregtable.pdf. (last visited July 26, 2012).
5 In order to qualify as a “religious employer” eligible for this exemption, an employer must meet the following criteria:
(1) The inculcation of religious values is the purpose of the organization. (2) The organization primarily employs persons who share the religious tenets of the organization. (3) The organization serves primarily persons who share the religious tenets of the organization. (4) The organization is a non-profit 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. 46621, 46626 (Aug. 3, 2011); See 77 Fed. Reg. 8725 (Feb. 15, 2012).
3

that do not qualify for the religious employer exemption. See Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act 77 Fed. Reg. 8725, 8726-8727 (Feb. 15, 2012). The preventive care guidelines take effect on August 1, 2012.
Hercules Industries, Inc. Plaintiff Hercules Industries, Inc. is a Colorado s-corp engaged in the manufacture and distribution of heating, ventilation, and air conditioning (“HVAC”) products and equipment. Hercules is owned by siblings William, Paul and James Newland and Christine Ketterhagen, who also comprise the company’s Board of Directors. Additionally, William Newland serves as President of the company and his son, Andrew Newland serves as Vice President.6 Although Hercules is a for-profit, secular employer, the Newlands adhere to the Catholic denomination of the Christian faith. According to the Newlands, “they seek to run Hercules in a manner that reflects their sincerely held religious beliefs” Amended Complaint (doc. 19) at ¶ 2. Thus, for the past year and a half the Newlands have implemented within Hercules a program designed to build their corporate culture based on Catholic principles. Id. at ¶ 36. Hercules recently made two amendments to its articles of incorporation, which reflect the role of religion in its corporate governance: (1) it added a provision specifying that its primary purposes are to be achieved by “following appropriate religious, ethical or moral standards,” and (2) it added a provision allowing members of its board of directors to prioritize those “religious, ethical or moral standards” at the expense of profitability. Id. at ¶ 112. Furthermore, Hercules has donated
6 Throughout this opinion, I will refer to William Newland, Paul Newland, James Newland, Christine Ketterhagen, and Andrew Newland as the “Newlands.”
4

significant amounts of money to Catholic organizations and causes. Id. at ¶ 35. According to Plaintiffs, Hercules maintains a self-insured group plan for its employees
“[a]s part of fulfilling their organizational mission and Catholic beliefs and commitments.” Id. at ¶¶ 37. Significantly, because the Catholic church condemns the use of contraception, Hercules self-insured plan does not cover abortifacent drugs, contraception, or sterilization. Id. at ¶ 41.
Hercules’ health insurance plan is not “grandfathered” under the ACA. Furthermore, notwithstanding the Newlands’ religious beliefs, as a secular, for-profit corporation, Hercules does not qualify as a “religious employer” within the meaning of the preventive care regulations. Nor may it seek refuge in the enforcement “safe harbor.” Accordingly, Hercules will be required to either include no-cost coverage for contraception in its group health plan or face monetary penalties. Faced with a choice between complying with the ACA or complying with their religious beliefs, Plaintiffs filed the instant suit challenging the women’s preventive care coverage mandate as violative of RFRA, the First Amendment, the Fifth Amendment, and the Administrative Procedure Act.
Believing the alleged injury to their constitutional and statutory rights to be imminent, Plaintiffs filed the instant Motion for Preliminary Injunction.
DISCUSSION A preliminary injunction is an extraordinary remedy; accordingly, the right to relief must be clear and unequivocal. See, e.g., Flood v. ClearOne Commc’ns, Inc., 618 F.3d 1110, 1117 (10th Cir. 2010). To meet this burden, a party seeking a preliminary injunction must show: (1) a likelihood of success on the merits, (2) a threat of irreparable harm, which (3) outweighs any harm to the non-moving party, and that (4) the injunction would not adversely affect the public
5

interest. See, e.g., Awad v. Ziriax, 670 F.3d 1111, 1125 (10th Cir. 2012). Although this inquiry is, on its face, relatively straightforward, there are a variety of exceptions. If the injunction will (1) alter the status quo, (2) mandate action by the defendant, or (3) afford the movant all the relief that it could recover at the conclusion of a full trial on the merits, the movant must meet a heightened burden. See O Centro Espirita Beneficente Uniao do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir. 2004) (en banc), aff’d and remanded, Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006).
In determining whether an injunction falls into one of these “disfavored” categories, courts often focus on whether the requested injunctive relief will alter the status quo. The “status quo” is “the last uncontested status between the parties which preceded the controversy until the outcome of the final hearing.” Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 269 F.3d 1149, 1155 (10th Cir. 2001). In making this determination, however, I must look beyond the parties’ legal rights, focusing instead on the reality of the existing status and relationship between the parties. Schrier v. Univ. of Colo., 427 F.3d 1253, 1260 (10th Cir. 2005). If the requested relief would either preserve or restore the relationship and status existing ante bellum, the injunction does not alter the status quo.
This determination is not, however, necessarily dispositive. An injunction restoring the status quo ante bellum may require action on behalf of the nonmovant. Such an injunction, one which “affirmatively require[s] the nonmovant to act in a particular way,” is mandatory and disfavored. Id. at 1261.
Although I follow the Tenth Circuit’s guidance in determining whether Plaintiffs seek to disturb the status quo or require affirmative action by Defendants, I am careful to avoid
6

uncritical adherence to the “status quo-formula” and the “mandatory/prohibitory formulation.” In making this determination, I must be mindful of “the fundamental purpose of preliminary injunctive relief under our Rules of Civil Procedure, which is ‘to preserve the relative positions of the parties until a trial on the merits can be held.’” Bray v. QFA Royalties, LLC, 486 F. Supp. 2d 1237, 1243-44 (D. Colo. 2007) (citing O Centro, 389 F.3d at 999-1001 (Seymour, C.J., concurring)).
Before the instigation of this lawsuit, Plaintiffs maintained an employee insurance plan that excluded contraceptive coverage. Although Defendants have passed a regulation requiring Plaintiffs to include such coverage in their coverage for the plan-year beginning on November 1, 2012, that regulation, as it applies to Plaintiffs, has not yet taken effect. Should the requested injunction enter, Defendants will be enjoined from enforcing the preventive care coverage mandate against Plaintiffs pending the outcome of this suit. The status quo will be preserved, and Defendants will not be required to take any affirmative action.
Because Plaintiffs do not seek a “disfavored” injunction, I must consider whether Plaintiffs are entitled to rely on an altered burden of proof. Cf. O Centro, 389 F.3d at 976. If the equities tip strongly in their favor, Plaintiffs “may meet the requirement for showing success on the merits by showing that questions going to the merits are so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation.”7
7 Although some courts in this district have questioned the continued validity of this relaxed likelihood-of-success-on-the-merits standard in light of the Supreme Court’s decision in Winter v. Natural Resource Defense Council, Inc., 555 U.S. 7, 20 (2008) (holding that a plaintiff seeking a preliminary injunction “must establish that he is likely to succeed on the merits”), because the Tenth Circuit has continued to refer to this relaxed standard I assume it still governs the issuance of preliminary injunctions in this circuit. See RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1209 n.3 (10th Cir. 2009).
7

Okla. ex rel. Okla. Tax Comm’n v. Int’l Registration Plan, Inc., 455 F.3d 1107, 1113 (10th Cir. 2006).
Accordingly, I begin by considering the equities before turning to Plaintiffs’ likelihood of success on the merits.
1. Irreparable Harm Although it is well-established that the potential violation of Plaintiffs’ constitutional and RFRA rights threatens irreparable harm, see Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir. 2001), Plaintiffs must also establish that “the injury complained of is of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm.” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003) (emphasis in original). Imminence does not, however, require immediacy. Plaintiffs need only demonstrate that absent a preliminary injunction, “[they] are likely to suffer irreparable harm before a decision on the merits can be rendered.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (quoting 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2948.1, p. 139 (2d ed. 1995)). Absent injunctive relief, Plaintiffs will be required to provide FDA-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity as part of their employee insurance plan. Per the terms of the preventive care coverage mandate, that coverage must begin on the start date of the first plan year following the effective date of the regulations, November 1, 2012. Defendants argue this harm, three months in the future, is not sufficiently imminent to justify injunctive relief. In light of the extensive planning involved in preparing and providing its employee insurance plan, and
8

the uncertainty that this matter will be resolved before the coverage effective date, Plaintiffs have adequately established that they will suffer imminent irreparable harm absent injunctive relief. This factor strongly favors entry of injunctive relief.
2. Balancing of Harms I must next weigh the irreparable harm faced by Plaintiffs against the harm to Defendants should an injunction enter. Should an injunction enter, Defendants will be prevented from “enforcing regulations that Congress found it in the public interest to direct that agency to develop and enforce.” Cornish v. Dudas, 540 F. Supp. 2d 61, 61 (D.D.C. 2008). This harm pales in comparison to the possible infringement upon Plaintiffs’ constitutional and statutory rights. This factor strongly favors entry of injunctive relief.
3. Public Interest Defendants argue that entry of the requested injunction is contrary to the public interest, because it would “undermine [their] ability to effectuate Congress’s goals of improving the health of women and children and equalizing the coverage of preventive services for women and men so that women who choose to do so can be part of the workforce on an equal playing field with men.” Defendants’ Response (doc. 26) at73. This asserted interest is, however, undermined by the creation of exemptions for certain religious organizations and employers with grandfathered health insurance plans and a temporary enforcement safe harbor for non-profit organizations. These interests are countered, and indeed outweighed, by the public interest in the free exercise of religion. As the Tenth Circuit has noted, “there is a strong public interest in the free
9

exercise of religion even where that interest may conflict with [another statutory scheme].” O Centro, 389 F.3d at 1010. Accordingly, the public interest favors entry of an injunction in this case.
On balance, the threatened harm to Plaintiffs, impingement of their right to freely exercise their religious beliefs, and the concommittant public interest in that right srongly favor the entry of injunctive relief. Although the less rigorous standard for preliminary injunctions is not applied when “a preliminary injunction seeks to stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme,” Aid for Women v. Foulston, 441 F.3d 1101, 1115 (10th Cir. 2006), the government’s creation of numerous exceptions to the preventive care coverage mandate has undermined its alleged public interest.8 Accordingly, I find the general rule disfavoring the relaxed standard inapplicable. Plaintiffs need only establish that their challenge presents “questions going to the merits . . . so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation.” Okla. Tax Comm’n, 455 F.3d at 1113.
4. Likelihood of Success on the Merits Plaintiffs raise a variety of constitutional and statutory challenges. Because Plaintiffs’ RFRA challenge provides adequate grounds for the requested injunctive relief, I decline to address their challenges under the Free Exercise, Establishment and Freedom of Speech Clauses of the First Amendment. See, e.g., United States v. Hardeman, 297 F.3d 1116, 1135-36 (10th Cir. 2002) (en banc).
8 See discussion supra at pp. 2-4 and infra at p. 14-15. 10

Passed in 1993, the Religious Freedom Restoration Act (“RFRA”) sought to “restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened.” 42 U.S.C. § 2000bb(b). Although unconstitutional as applied to the states, see City of Boerne v. Flores, 521 U.S. 507 (1997), it remains constitutional as applied to the federal government. See United States v. Wilgus, 638 F.3d 1274, 1279 (10th Cir. 2011).
Under RFRA, the government may not “substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” 42 U.S.C. § 2000bb1(a). This general prohibition is not, however, without exception. The government may justify a substantial burden on the free exercise of religion if the challenged law: “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” Id. at § 2000bb-1(b). The initial burden is borne by the party challenging the law. Once that party establishes that the challenged law substantially burdens her free exercise of religion, the burden shifts to the government to justify that burden. The nature of this preliminary injunction proceeding does not alter these burdens. Gonzales, 546 U.S. at 429. Thus, I must first consider whether Plaintiffs have demonstrated that the preventive care coverage mandate substantially burdens their free exercise of religion. If so, I must then consider whether the government has demonstrated that the preventive care coverage mandate is the least restrictive means to achieve a compelling interest.
Substantial Burden of Free Exercise Plaintiffs argue that providing contraception coverage violates their sincerely held
11

religious beliefs. Although the government does not challenge the sincerity of the Newlands’ religious beliefs, it argues that Plaintiffs have failed to demonstrate a substantial burden on their free exercise of religion. This argument relies upon two key premises. First, the government asserts that the burden of providing insurance coverage is borne by Hercules. Second, the government argues that as a for-profit, secular employer, Hercules cannot engage in an exercise of religion. Accordingly, the argument concludes, the preventive care coverage mandate cannot burden Hercules’ free exercise of religion.9 Plaintiffs counter, arguing that there exists no law forbidding a corporation from operating according to religious principles.
These arguments pose difficult questions of first impression. Can a corporation exercise religion? Should a closely-held subchapter-s corporation owned and operated by a small group of individuals professing adherence to uniform religious beliefs be treated differently than a publicly held corporation owned and operated by a group of stakeholders with diverse religious beliefs? Is it possible to “pierce the veil” and disregard the corporate form in this context? What is the significance of the pass-through taxation applicable to subchapter-s corporations as it pertains to this analysis? These questions merit more deliberate investigation.
Even if, upon further examination, Plaintiffs are able to demonstrate a substantial burden on their free exercise of religion, however, the government may justify its application of the preventive care coverage mandate by demonstrating that application of that mandate to Plaintiffs
9 In the alternative, the government argues that because Plaintiffs routinely contribute to other schemes that violate the religious beliefs alleged here, the preventive care coverage mandate does not substantially burden Plaintiffs’ free exercise of religion. This argument requires impermissible line drawing, and I reject it out of hand. See Thomas v. Review Bd. of Ind. Emp’t Sec., 450 U.S. 707, 715 (1981).
12

is the least restrictive means of furthering a compelling interest. Compelling Interest
In order to justify a substantial burden on Plaintiffs’ free exercise of religion, the government must show that its application of the preventive carecoverage mandate to Plaintiffs furthers “interests of the highest order.” Hardeman, 297 F.3d at 1127. It is well-settled that the interest asserted in this case, the promotion of public health, is a compelling government interest. See Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487, 498 (10th Cir. 1998). The government argues that the preventive care coverage mandate, as applied to Plaintiffs and all similarly situated parties, furthers this compelling interest.
Assuming, arguendo, that application of the preventive care coverage mandate to Plaintiffs and all similarly situated parties furthers a compelling government interest,10 that argument does not justify a substantial burden on Plaintiffs’ free exercise of religion: “RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law to the person – the particular claimant whose sincere exercise of religion is being substantially burdened.” Gonzales, 546 U.S. at 430-31.
I do not mean to suggest that the government may not establish a compelling interest in the uniform application of a particular program. To make such a showing, however, the government must “offer[] evidence that granting the requested religious accommodations would seriously compromise its ability to administer this program.” Id. at 435. Any such argument is
10 Plaintiffs strenuously challenge whether the preventive care coverage mandate actually furthers the promotion of public health. I need not address that argument to resolve the instant motion, and I decline to do so.
13

undermined by the existence of numerous exemptions to the preventive care coverage mandate.
In promulgating the preventive care coverage mandate, Congress created significant exemptions
for small employers and grandfathered health plans.11 12 26 U.S.C. § 4980H(c)(2) (exempting
from health care provision requirement employers of less than fifty full-time employees); 42
U.S.C. § 18011 (grandfathering of existing health care plans). Even Defendants created a
regulatory exemption to the contraception mandate. 76 Fed. Reg. 46621, 46626 (Aug. 3, 2011)
(exempting certain religious employers from the contraception requirement of the preventive
care coverage mandate).
“[A] law cannot be regarded as protecting an interest of the highest order when it leaves
appreciable damage to that supposedly vital interest unprohibited.” Church of the Lukumi
Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547 (1993); see also United States v. Friday,
525 F.3d 938, 958 (10th Cir. 2008). The government has exempted over 190 million health plan
11 The government’s attempt to characterize grandfathering as “phased implementation” is unavailing. As noted above, health plans may retain their grandfathered status indefinitely. Most damaging to the government’s alleged compelling interest, even though Congress required grandfathered health plans to comply with certain provisions of the ACA, it specifically exempted grandfathered health plans from complying with the preventive care coverage mandate. See 42 U.S.C. § 18011(a)(3-4) (specifying those provisions of the ACA that apply to grandfathered health plans).
12 The government argues that because these provisions are generally applicable, and not specifically limited to the preventive services coverage regulations, they are not exemptions from the preventive care coverage mandate. This is a distinction without substance. By exempting employers from providing health care coverage, these provisions exempt those employers from providing preventative health care coverage to women. If the government has a compelling interest in ensuring no-cost provision of preventative health coverage to women, that interest is compromised by exceptions allowing employers to avoid providing that coverage – whether broadly or narrowly crafted.
14

participants and beneficiaries from the preventive care coverage mandate;13 this massive exemption completely undermines any compelling interest in applying the preventive care coverage mandate to Plaintiffs.14
Least Restrictive Means
Even if the government were able to establish a compelling interest in applying the preventive care coverage mandate to Plaintiffs, it must also demonstrate that there are no feasible less-restrictive alternatives. Wilgus, 638 F.3d at 1289. The government need not tilt at windmills; it need only refute alternatives proposed by Plaintiffs. Id.
Plaintiffs propose one alternative, government provision of free birth control, that could be achieved by a variety of methods: creation of a contraception insurance plan with free enrollment, direct compensation of contraception and sterilization providers, creation of a tax credit or deduction for contraceptive purchases, or imposition of a mandate on the contraception manufacturing industry to give its items away for free. Defendants argue Plaintiffs’ “misunderstand the nature of the ‘least restrictive means’ inquiry.” Brief in Opposition (doc. 26) at 43. According to Defendants, this inquiry should be limited to whether Plaintiffs and other similarly situated parties could be exempted without damaging Defendants’ compelling interest.
13 Even if, as is estimated under the government’s high-end estimate, 69% of health plans lose their grandfathered status by the end of 2013, millions health plan participants and beneficiaries will continue to be exempted from the preventive care coverage mandate. See 75 Fed. Reg. 34538, 34553.
14 To the extent the government argues creating an exemption for Plaintiffs threatens to undermine the preventive care coverage mandate, that argument is inconsistent with RFRA and irrelevant in this context. See Gonzales, 546 U.S. at 436 (rejecting “slippery slope” argument as inconsistent with RFRA).
15

It is, however, not Plaintiffs but Defendants who misunderstand the least restrictive means inquiry. Defendants need not refute every conceivable alternative, but they “must refute the alternative schemes offered by the challenger.”15 Wilgus, 638 F.3d at 1289.
Despite their categorical argument, Defendants attempt to refute Plaintiffs’ proposed alternative. First, Defendants argue that because Plaintiffs’ alternative “would impose considerable new costs and other burdens on the Government and are otherwise impractical,” they should be rejected as not “feasible” or “plausible.” Brief in Opposition (doc. 26) at 44. Although a showing of impracticality is sufficient to refute the adequacy of a proposed alternative, Defendants have failed to make such a showing in this case. As Plaintiffs note, “the government already provides free contraception to women.” Reply Brief in Support (doc. 27) at 38.
Defendants also argue Plaintiffs’ alternative would not adequately advance the government’s compelling interests. They acknowledge that Plaintiffs’ alternative would achieve the purpose of providing contraceptive services to women with no cost sharing, but argue that Plaintiffs’ alternative will not “ensur[e] that women will face minimal logistical and administrative obstacles to receiving coverage of their care.” Brief in Opposition (doc. 26) at 45. Although Plaintiffs argue that this amounts to a redefinition of Defendants’ compelling interest,
15 Furthermore, both parties impermissibly expand the scope of this determination. As noted above, my inquiry is limited to the parties before me; I do not consider all other “similarly situated parties.” To the extent Plaintiffs’ alternative would apply to other parties, it is overinclusive. Because the parties frame this discussion, however, I analyze the alternative as presented by Plaintiffs and responded to by Defendants.
16

it is instead a logical corollary thereto.16 Nonetheless, Defendants have failed to adduce facts establishing that government provision of contraception services will necessarily entail logistical and administrative obstacles defeating the ultimate purpose of providing no-cost preventive health care coverage to women. Once again, the current existence of analogous programs heavily weighs against such an argument.
Defendants bear the burden of demonstrating that refusing to exempt Plaintiffs from the preventive care coverage mandate is the least restrictive means of furthering their compelling interest. Given the existence of government programs similar to Plaintiffs’ proposed alternative, the government has failed to meet this burden.
Conclusion
The balance of the equities tip strongly in favor of injunctive relief in this case. Because this case presents “questions going to the merits . . . so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation,” I find it appropriate to enjoin the implementation of the preventive care coverage mandate as applied to Plaintiffs. Accordingly,
Defendants, their agents, officers, and employees, and their requirements that Plaintiffs provide FDA-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity, are ENJOINED from any application or enforcement thereof against Plaintiffs, including the substantive requirement imposed in 42
16 To be clear, I do not believe Defendants have sufficiently demonstrated a compelling interest in enforcing the preventive care coveragemandate against Plaintiffs. For purposes of my analysis under “least restrictive means” prong of RFRA, however, I assume the existence of such an interest.
17

U.S.C. § 300gg-13(a)(4), the application of the penalties found in 26 U.S.C. §§ 4980D & 4980H and 29 U.S.C. § 1132, and any determination that the requirements are applicable to Plaintiffs.
Pursuant to Fed. R. Civ. P. Rule 65(c), Plaintiffs shall post a $100.00 bond as security for any costs and damages that may be sustained by Defendants in the event they have been wrongfully enjoined or restrained.
Such injunction shall expire three months from entry of an order on the merits of Plaintiffs’ challenge. In order to expedite the resolution of this case, the parties shall file a Joint Case Management Plan on or before August 27, 2012.
And, finally, I take this opportunity to emphasize the ad hoc nature of this injunction. The government’s arguments are largely premised upon a fear that granting an exemption to Plaintiffs will necessarily require granting similar injunction to all other for-profit, secular corporations voicing religious objections to the preventive care coverage mandate. This injunction is, however, premised upon the alleged substantial burden on Plaintiffs’ free exercise of religion – not to any alleged burden on any other party’s free exercise of religion. It does not enjoin enforcement of the preventive care coverage mandate against any other party.

Dated: July 27, 2012

BY THE COURT:
/s/ John L. Kane Senior U.S. District Court Judge

18

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge John L. Kane
Civil Action No. 12-cv-1123-JLK
WILLIAM NEWLAND; PAUL NEWLAND; JAMES NEWLAND; CHRISTINE KETTERHAGEN; ANDREW NEWLAND; and HERCULES INDUSTRIES, INC., a Colorado corporation,
Plaintiffs,
v.
KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; HILDA SOLIS, in her official capacity as Secretary of the United States Department of Labor; TIMOTHY GEITHNER, in his official capacity as Secretary of the United States Department of the Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; and UNITED STATED DEPARTMENT OF THE TREASURY,
Defendants.
ORDER
Kane, J.
On July 27, 2012, I granted Plaintiffs’ Motion for Preliminary Injunction, enjoining,
under the Religious Freedom and Restoration Act (RFRA), the government’s enforcement of the
Patient Protection and Affordable Care Act’s preventive care coverage mandate against them
until such time as Plaintiffs’ various legal challenges to the mandate could be carefully and fully
vetted. I did not, in my July 27, 2012, Order, reach a decision on the merits of Plaintiffs’ RFRA,
or any other, claim for relief.
The government appealed the July 27 Order and that matter remains pending before the

Tenth Circuit Court of Appeals. In the interim, briefing on Defendants’ Motion to Dismiss Plaintiffs’ First Amended Complaint has proceeded and is now complete. Plaintiffs now move to stay all proceedings, including ruling on the Motion to Dismiss, pending resolution, by the Tenth Circuit, of the government’s RFRA preliminary injunction appeal. The government objects to any delay in the consideration of their Motion to Dismiss, agreeing only to stay the setting of further case management or briefing deadlines until 30 days after a ruling on that Motion.
Having considered the arguments for and against the stays suggested, I agree the most prudent course is to await the Tenth Circuit’s ruling on the preliminary injunction appeal rather than cloud the issues pending there with rulings on Defendants’ Motion to Dismiss. Accordingly, Plaintiffs’ Opposed Motion to Stay Proceedings Pending Appeal (Doc. 51) is GRANTED and this case is STAYED until the Tenth Circuit issues its ruling or until further order of this Court. Defendants’ Opposed Motion to Continue the October 26, 2012 Case Management [Scheduling] Plan Deadline until after the Court Rules on the Motion to Dismiss (Doc. 52) is DENIED as MOOT.

Dated: October 26, 2012.

/s/ John L. Kane SENIOR U.S. DISTRICT JUDGE

2

 
 Appellate Case: 12-1380 Document: 01019136298 Date Filed: 10/03/2013 Page: 1

FILED

United States Court of Appeals

UNITED STATES COURT OF APPEALS

Tenth Circuit

TENTH CIRCUIT

October 3, 2013

WILLIAM NEWLAND; PAUL NEWLAND; JAMES NEWLAND; CHRISTINE KETTERHAGEN; ANDREW NEWLAND; HERCULES INDUSTRIES, INC., a Colorado corporation,

Elisabeth A. Shumaker Clerk of Court

Plaintiffs - Appellees,
v.
KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; HILDA SOLIS, in her official capacity as Secretary of the United States Department of Labor; TIMOTHY GEITHNER, in his official capacity as Secretary of the United States Department of the Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; UNITED STATES DEPARTMENT OF THE TREASURY,

No. 12-1380
(D.C. No. 1:12-CV-01123-JLK)
(D. Colo.)

Defendants - Appellants.

-----------------------------------------

AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE; UNION FOR REFORM JUDAISM; CENTRAL CONFERENCE OF AMERICANS RABBIS; WOMEN OF REFORM JUDAISM; HINDU AMERICAN FOUNDATION; AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION OF COLORADO;

Appellate Case: 12-1380 Document: 01019136298 Date Filed: 10/03/2013 Page: 2
ANTI-DEFAMATION LEAGUE; HADASSAH, THE WOMEN'S ZIONIST ORGANIZATION OF AMERICA, INC.; INTERFAITH ALLIANCE FOUNDATION; NATIONAL COUNCIL OF JEWISH WOMEN; RELIGIOUS COALITION FOR
REPRODUCTIVE CHOICE; UNITARIAN UNIVERSALIST ASSOCIATION; UNITARIAN UNIVERSALIST WOMEN'S FEDERATION; LIBERTY, LIFE AND LAW FOUNDATION; AMERICAN CENTER FOR LAW AND JUSTICE; ASSOCIATION OF AMERICAN PHYSICIANS & SURGEONS; AMERICAN ASSOCIATION OF PRO-LIFE OBSTETRICIANS AND GYNECOLOGISTS; CHRISTIAN MEDICAL ASSOCIATION; NATIONAL CATHOLIC BIOETHICS CENTER; PHYSICIANS FOR LIFE; NATIONAL ASSOCIATION OF PRO LIFE NURSES; CATHOLIC MEDICAL ASSOCIATION; EAGLE FORUM EDUCATION & LEGAL DEFENSE FUND; ARCHDIOCESE OF DENVER; ARCHDIOCESE OF PUEBLO; ARCHDIOCESE OF COLORADO SPRINGS; ASSOCIATION OF GOSPEL RESCUE MISSIONS; PRISON FELLOWSHIP MINISTRIES; ASSOCIATION OF CHRISTIAN SCHOOLS INTERNATIONAL; NATIONAL ASSOCIATION OF EVANGELICALS; ETHICS & RELIGIOUS LIBERTY COMMISSION OF THE SOUTHERN BAPTIST CONVENTION; INSTITUTIONAL RELIGIOUS FREEDOM ALLIANCE; THE C12
GROUP; CHRISTIAN LEGAL SOCIETY; UNITED STATES JUSTICE FOUNDATION, EAGLE FORUM; BART STUPAK; DEMOCRATS FOR LIFE OF AMERICA; BREAST CANCER PREVENTION INSTITUTE; BIOETHICS DEFENSE FUND; LIFE LEGAL DEFENSE FOUNDATION,
Amici Curiae.
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Appellate Case: 12-1380 Document: 01019136298 Date Filed: 10/03/2013 Page: 3
ORDER AND JUDGMENT*
Before KELLY, LUCERO, and MATHESON, Circuit Judges.
Kathleen Sebelius, Secretary of Department of Health and Human Services (“HHS”), appeals the district court’s order granting the plaintiffs’ motion for a preliminary injunction barring enforcement of an HHS regulation requiring employerprovided group health plans to cover certain contraceptive drugs and services. Exercising jurisdiction under 28 U.S.C. § 1292(a)(1), we affirm.
I. BACKGROUND Hercules Industries, Inc., a for-profit Colorado corporation, and five of its controlling shareholders and/or officers (collectively, the “Newlands”) brought suit in Colorado district court seeking an exemption from an HHS regulation requiring that employer-provided health plans cover all contraceptive drugs and services approved by the Food and Drug Administration (the “Regulation”). 45 C.F.R. § 147.130(a). Hercules
* After examining appellant's brief and the appellate record, and in accord with our order dated August 12, 2013, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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Appellate Case: 12-1380 Document: 01019136298 Date Filed: 10/03/2013 Page: 4
and the Newlands contend that compliance with the Regulation would violate their sincerely held religious beliefs about contraceptives.
The plaintiffs sought a preliminary injunction barring HHS from enforcing the Regulation against them, claiming that the Regulation substantially burdens their religious exercise in violation of the Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C. § 2000bb-1. The district court granted the preliminary injunction, and HHS timely appealed.
After both parties had filed their briefs, this court decided Hobby Lobby v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (en banc). That case involved materially similar facts and resolved questions of law applicable to this case. In Hobby Lobby, two forprofit corporations (collectively, “Hobby Lobby”) and their individual owners challenged the same Regulation on RFRA grounds. This court reversed an Oklahoma district court’s denial of Hobby Lobby’s request for preliminary injunction, holding that the corporations were “persons” within the meaning of RFRA; that compliance with the Regulation would substantially burden the corporations’ religious exercise; and that the Regulation was not narrowly tailored to achieve a compelling interest. Id. at 1121, 1128, 1142-43.
The en banc court therefore determined that the Hobby Lobby plaintiffs had satisfied two of the four preliminary injunction factors: (1) they were substantially likely to succeed on the merits of their RFRA claim, id. at 1145; and (2) they would suffer irreparable injury without the injunction, id. at 1146. We remanded to the district court to consider the remaining two preliminary injunction factors: (3) whether the likely harm to
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Appellate Case: 12-1380 Document: 01019136298 Date Filed: 10/03/2013 Page: 5
plaintiffs without the preliminary injunction outweighed the likely harm to HHS as a result of the injunction; and (4) whether the injunction was adverse to the public interest. Id. at 1121-22, 1146; see also Awad v. Ziriax, 670 F.3d 1111, 1125 (10th Cir. 2012) (reciting the preliminary injunction factors).
HHS has filed a petition for certiorari with the Supreme Court, seeking review of our Hobby Lobby decision. Petition for Writ of Certiorari, Sebelius v. Hobby Lobby, No. 13-354 (U.S. Sept. 19, 2013). This petition remains pending as of the date of this order and judgment. For the reasons discussed below, we affirm the district court’s preliminary injunction order and remand with instructions to abate further proceedings pending the Supreme Court’s completion of its consideration of the Hobby Lobby case.
II. DISCUSSION We review a district court’s decision to grant a preliminary injunction for abuse of discretion. See Awad, 670 F.3d at 1125. “To obtain a preliminary injunction, [Hercules] must show that four factors weigh in [its] favor: (1) [it] is substantially likely to succeed on the merits; (2) [it] will suffer irreparable injury if the injunction is denied; (3) [its] threatened injury outweighs the injury the opposing party will suffer under the injunction; and (4) the injunction would not be adverse to the public interest.” Id. (quotations omitted).
A. Likelihood of Success on the Merits The district court granted a preliminary injunction without determining whether Hercules or the Newlands were substantially likely to succeed on the merits. Newland v.
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Appellate Case: 12-1380 Document: 01019136298 Date Filed: 10/03/2013 Page: 6
Sebelius, 881 F. Supp. 2d 1287, 1296-97 (D. Colo. 2012). It applied a relaxed preliminary injunction standard that allows relief without a showing of likelihood of success. Under the relaxed standard, a district court may grant a preliminary injunction when “the equities tip strongly in favor” of the party seeking the injunction and the merits questions “are so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation.” Id. at 1294 (quoting Okla. ex rel. Okla. Tax Comm’n v. Int’l Registration Plan, Inc., 455 F.3d 1107, 1113 (10th Cir. 2006)). It is not necessary for us to determine whether the relaxed standard applies because, as we explain below, our decision in Hobby Lobby resolves the likelihood of success factor in Hercules’s favor.
Under RFRA, the government may not “substantially burden a person’s exercise of religion” unless it shows that the law or regulation “is the least restrictive means of furthering [a] compelling governmental interest.” 42 U.S.C. § 2000bb-1. To succeed on the merits of its RFRA claim, Hercules must show that (1) it is a person protected under RFRA; (2) compliance with the Regulation would substantially burden its religion; and (3) HHS cannot show that the Regulation is the least restrictive means to meet a compelling government interest.1
1 In this case and in Hobby Lobby, individual and corporate plaintiffs raised the same claims. In Hobby Lobby, this court resolved the RFRA claim as to the corporate plaintiffs without reaching the individual plaintiffs’ claims. See 723 F.3d at 1126 n.4. “[T]here is no dispute that relief as to [Hercules] would satisfy the [Newlands].” Id.
Continued . . .
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Given our decision in Hobby Lobby, Hercules can likely meet all three elements of its RFRA claim. Our precedent holds that Hercules is a “person” within the meaning of RFRA, the Regulation substantially burdens its religious exercise, and the Regulation fails to satisfy strict scrutiny. See Hobby Lobby, 723 F.3d at 1121, 1128, 1142-43.
B. Irreparable Harm The district court concluded that Hercules made a strong showing that “the injury complained of is of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm.” Newland, 881 F. Supp. 2d at 1294 (emphasis omitted) (quotations omitted). This court concluded in Hobby Lobby that the harm to the corporations’ religious liberties as a result of forced compliance with the mandate was irreparable and met this preliminary injunction factor. See 723 F.3d at 1146. Given that decision, we cannot say the district court abused its discretion in making the same conclusion as to Hercules.
C. Balance of Harms The district court held that the balance of harms tipped in favor of Hercules. To succeed on this third factor, Hercules must show that “the threatened injury outweighs the harm that the preliminary injunction may cause the opposing party.” Greater
______________________________________ Cont.
Thus, we need not consider whether the Newlands’ individual claims are likely to succeed on the merits.
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Appellate Case: 12-1380 Document: 01019136298 Date Filed: 10/03/2013 Page: 8
Yellowstone Coalition v. Flowers, 321 F.3d 1250, 1255 (10th Cir. 2003) (quotations omitted).
The district court stated that the only harm HHS would face from the injunction would be the inability to “enforc[e] regulations that Congress found [to be in] the public interest” and that this harm “pale[d] in comparison to the possible infringement upon [Hercules’s] constitutional and statutory rights.” Newland, 881 F. Supp. 2d at 1295 (quotations omitted).2
We may reverse only if the district court’s conclusion was an abuse of discretion. See eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 394 (2006) (“[T]he decision whether to grant or deny injunctive relief rests within the equitable discretion of the district courts.”). We recognized in Hobby Lobby the considerable importance of a corporation’s religious liberty interests. See Hobby Lobby, 723 F.3d at 1145-46. Hobby Lobby also concluded that HHS’s interest in enforcing the Regulation was not compelling. Id. at 1143-44.
The district court in the present case failed to address the government’s interests of safeguarding the public health, protecting the statutory rights of affected employees, and ensuring the uniform enforcement of health care and employment regulations. We cannot say, however, in light of the Hobby Lobby decision, that its conclusion on the
2 In Hobby Lobby, neither the district court nor this court resolved this preliminary injunction factor. 723 F.3d at 1121. We remanded this issue for further consideration. Id. In the present case, the district court did address this preliminary injunction factor, so we must review its conclusion for abuse of discretion. See Awad, 670 F.3d at 1125.
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Appellate Case: 12-1380 Document: 01019136298 Date Filed: 10/03/2013 Page: 9
balance of harms was an abuse of discretion. D. Public Interest
The district court concluded that “public interest in the free exercise of religion” supported the preliminary injunction. Newland, 881 F. Supp. 2d at 1295. It considered HHS’s argument that a preliminary injunction would harm Congress’s public interest goals of “improving the health of women . . . and equalizing the coverage of preventive services for women and men.” Id. (quotations omitted). But the district court reasoned that the current regulations exempting many employers, such as small businesses, from the Regulation dilute these interests. It held that the public interest favors the preliminary injunction.
Once again, our review standard is abuse of discretion, which “occurs only when the trial court bases its decision on an erroneous conclusion of law or where there is no rational basis in the evidence for the ruling.” Awad, 670 F.3d at 1125 (quotations omitted). The district court applied the correct legal standard, and the evidence provides a rational basis for the ruling. We therefore cannot say that it abused its discretion in holding that this preliminary injunction factor favored Hercules.
III. CONCLUSION We conclude that the district court did not abuse its discretion in granting the preliminary injunction to Hercules. We therefore affirm and remand to the district court. Given the pending petition for certiorari before the Supreme Court in Hobby Lobby, the district court is instructed to abate further proceedings until the Supreme Court completes
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Appellate Case: 12-1380 Document: 01019136298 Date Filed: 10/03/2013 Page: 10
its consideration of the Hobby Lobby case. At that time, the abatement may be lifted and the court may undertake all proceedings necessary to resolve the issues remaining before it. Finally, appellees' motion to hear this matter with the Hobby Lobby proceeding is denied as moot.
ENTERED FOR THE COURT Scott M. Matheson, Jr. Circuit Judge
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Appellate Case: 12-1380 Document: 01019136302 Date Filed: 10/03/2013 Page: 1

Elisabeth A. Shumaker Clerk of Court

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT OFFICE OF THE CLERK
Byron White United States Courthouse 1823 Stout Street
Denver, Colorado 80257 (303) 844-3157
October 03, 2013

Douglas E. Cressler Chief Deputy Clerk

Ms. Michelle Renee Bennett U.S. Department of Justice-DC-Federal Programs 20 Massachusetts Avenue N.W. Washington, DC 20008
Ms. Alisa Beth Klein U.S. Department of Justice Appellate Staff, Civil Division 950 Pennsylvania Avenue, NW 7235 Washington, DC 20530
Mr. Mark B. Stern U.S. Department of Justice Appellate Staff, Civil Division 950 Pennsylvania Avenue, NW 7531 Washington, DC 20530
RE: 12-1380, Newland, et al v. Sebelius, et al Dist/Ag docket: 1:12-CV-01123-JLK
Dear Counsel:
Enclosed is a copy of the order and judgment issued today in this matter. The court has entered judgment on the docket pursuant to Fed. R. App. P. Rule 36.
Pursuant to Fed. R. App. P. Rule 40, any petition for rehearing must be filed within 14 days after entry of judgment. Please note, however, that if the appeal is a civil case in which the United States or its officer or agency is a party, any petition for rehearing must be filed within 45 days after entry of judgment. Parties should consult both the Federal Rules and local rules of this court with regard to applicable standards and requirements. In particular, petitions for rehearing may not exceed 15 pages in length, and no answer is permitted unless the court enters an order requiring a response. If requesting rehearing en banc, the requesting party must file 12 paper copies with the clerk, in addition to

Appellate Case: 12-1380 Document: 01019136302 Date Filed: 10/03/2013 Page: 2
satisfying all Electronic Case Filing requirements. See Fed. R. App. P. Rules 35 and 40, and 10th Cir. R.35 and 40 for further information governing petitions for rehearing.
Please contact this office if you have questions.
Sincerely,
Elisabeth A. Shumaker Clerk of the Court
cc: Steven H. Aden Brigitte Amiri Gregory Baylor Thomas C. Berg Dorinda Bordlee Matthew Scott Bowman Kimberlee Wood Colby Michael R. Connelly David Andrew Cortman Deborah Jane Dewart Noel Francisco Scott W. Gaylord Sandra Payne Hagood Cece Heil Lawrence John Joseph Ayesha N. Khan Gregory M Lipper Daniel Mach Francis J. Manion Frank D. Mylar Jr. Nikolas T. Nikas Michael J. Norton Leonard Martin Nussbaum Stuart J. Roth Jay Sekulow Jordan Sekulow Catherine W. Short Mark Silverstein Mailee R. Smith Erik William Stanley Geoffrey R. Surtees Kevin H. Theriot
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Appellate Case: 12-1380 Document: 01019136302
Angela C. Thompson Edward Lawrence White

Date Filed: 10/03/2013

Page: 3

EAS/kf

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 Case 1:12-cv-01123-JLK Document 70 Filed 03/16/15 USDC Colorado Page 1 of 3
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge John L. Kane
Civil Action No. 1:12-cv-1123
WILLIAM NEWLAND, PAUL NEWLAND, JAMES NEWLAND, CHRISTINE KETTERHAGEN, ANDREW NEWLAND, and HERCULES INDUSTRIES, INC.
Plaintiffs,
v.
SYLVIA M. BURWELL, in her official capacity as Secretary of the United States Department of Health and Human Services; THOMAS E. PEREZ, in his official capacity as Secretary of the United States Department of Labor; JACOB LEW, in his official capacity as Secretary of the United States Department of the Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; and UNITED STATES DEPARTMENT OF THE TREASURY;
Defendants.
PERMANENT INJUNCTION
Kane, J.
The Tenth Circuit Court of Appeals affirmed my decision granting Plaintiffs a
preliminary injunction barring enforcement of an HHS regulation requiring employer-provided
group health plans to cover certain contraceptive drugs and services. Order and Judgment (Doc.
58). The parties agree that a permanent injunction should be entered in favor of Plaintiffs on
their RFRA claim, but they disagree as to its scope.
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Based on the inherent jurisdictional authority of this court and upon consideration of my July 27, 2012, Order granting Plaintiff’s Motion for Preliminary Junction (Doc. 30), the rulings of the Tenth Circuit and the Supreme Court, the parties’ reliance on the same factual record in existence on July 27, 2012, the parties’ Joint Status Report (Doc. 69), the attached Memorandum Opinion, and the entirety of the pleadings and arguments offered in this case, and for good cause shown,
IT IS ORDERED that judgment is entered in favor of Plaintiffs and against Defendants on Plaintiffs’ claim under the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et seq.
IT IS FURTHER ORDERED that Defendants, their employees, agents, and successors in office are permanently ENJOINED from, directly or indirectly, (1) enforcing against Hercules Industries, Inc. (“Hercules”) any regulation promulgated or amended pursuant to 42 U.S.C. §§ 300gg-13(a)(4), or otherwise, requiring Hercules to provide health insurance coverage for abortifacients, contraception, sterilization, and related education and counseling to its employees; (2) from applying any penalties, fines, or assessments for noncompliance with any regulation promulgated or amended pursuant to 42 U.S.C. §§ 300gg-13(a)(4), or otherwise, requiring Hercules to provide health insurance coverage for abortifacients, contraception, sterilization and related education and counseling to its employees, including those found in 26 U.S.C. § 4980D and 29 U.S.C. §§ 1132 and 1185d; and (3) from taking any other actions based on noncompliance with any regulation promulgated or amended pursuant to 42 U.S.C. §§ 300gg13(a)(4), or otherwise, requiring Hercules to provide health insurance coverage for abortifacients, contraception, sterilization and related education and counseling to its employees;
IT IS FURTHER ORDERED that in the event Defendants seek relief or modification of this Permanent Injunction, Defendants must first move this Court to modify or dissolve this
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injunction by showing that a significant change either in factual conditions or in law renders continued enforcement of the injunction detrimental to the public interest; and
IT IS FURTHER ORDERED that any petition by Plaintiffs for attorney fees or costs shall be submitted on or before 45 days (or the next business day if that day falls on a weekend or a court holiday) from the date this judgment is issued.

Dated: March 16, 2015

BY THE COURT:
s/ John L. Kane Senior U.S. District Court Judge

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge John L. Kane
Civil Action No. 1:12-cv-1123
WILLIAM NEWLAND, PAUL NEWLAND, JAMES NEWLAND, CHRISTINE KETTERHAGEN, ANDREW NEWLAND, and HERCULES INDUSTRIES, INC.
Plaintiffs,
v.
SYLVIA M. BURWELL, in her official capacity as Secretary of the United States Department of Health and Human Services; THOMAS E. PEREZ, in his official capacity as Secretary of the United States Department of Labor; JACOB LEW, in his official capacity as Secretary of the United States Department of the Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; and UNITED STATES DEPARTMENT OF THE TREASURY;
Defendants.
MEMORANDUM OPINION
Kane, J.
William Newland, Paul Newland, James Newland, Christine Ketterhagen, and Andrew
Newland (the “Newlands”) and Hercules Industries, Inc., their closely-held family corporation
(collectively the “Plaintiffs”), filed this suit seeking relief from the Defendants’ actions in
implementing the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat.
119 (March 23, 2010) and Pub. L. No. 111-152 (March 30, 2010) (“ACA”). Specifically, the
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Plaintiffs objected to the regulations enforcing a portion of the statutory Preventive Services Mandate, 42 U.S.C. §§ 300gg-13(a)(4), which would have required them to pay for or otherwise facilitate insurance coverage for abortifacient drugs, contraception, sterilization, and related education and counseling. See 26 C.F.R. § 54.9815-2713(a)(1)(iv); 29 C.F.R. § 2590.7152713(a)(1)(iv); 45 C.F.R. § 147.130(a)(iv) (collectively, along with the HRSA guidelines requiring no-cost sharing coverage of FDA-approved contraception methods and the statutory penalties for non-compliance, the “Contraception Mandate”).
On July 27, 2012, I ordered a preliminary injunction temporarily prohibiting Defendants from enforcing the Preventive Services Mandate against Plaintiffs, including the substantive requirement imposed in 42 U.S.C. § 300gg-13(a)(4), the application of the penalties found in 26 U.S.C. §§ 4980D & 4980H and 29 U.S.C. § 1132, and any determination that the requirements were applicable to Plaintiffs. Preliminary Injunction Order (Doc. 30) at 17-18.
Defendants appealed the entry of the preliminary injunction to the Tenth Circuit, which affirmed my decision. Relying on its en banc decision in Hobby Lobby Stores, Inc. v. Sebelius, the court found that Hercules was likely to succeed on the merits of its RFRA claim. Order and Judgment (Doc. 58) at 6-7. The Tenth Circuit also found that my determinations that Hercules would suffer irreparable harm, that the balance of harms tipped in favor of Hercules, and that the public interest supported the preliminary injunction were not an abuse of discretion. Id. at 7-9. The Tenth Circuit remanded the case with instructions to abate further proceedings pending the
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Supreme Court’s resolution of Burwell v. Hobby Lobby Stores, Inc., another challenge to the Contraception Mandate.1 Id. at 9-10.
On June 30, 2014, the Supreme Court issued its decision in Hobby Lobby, concluding that the Contraceptive Mandate, as applied to closely held corporations, violates the Religious Freedom Restoration Act (“RFRA”). Accordingly, I reinitiated proceedings to resolve Plaintiffs’ challenge to the Contraceptive Mandate.
On remand, the parties agree that a permanent injunction should be entered in favor of Plaintiffs on their RFRA claim, but they disagree as to the precise nature of that judgment. Specifically, the parties dispute the scope of the permanent injunction to which Plaintiffs are entitled.
Plaintiffs suggest that I should simply convert the preliminary injunction into a permanent injunction. Defendants contend that the language of the preliminary injunction is unnecessarily broad and should be more closely tethered to the holding in the Supreme Court’s Hobby Lobby decision. Although the permanent injunction order accompanying this memorandum resolves these issues, I write separately to address more thoroughly the parties’ disputes and the basis for the permanent injunction entered.
I begin with a brief discussion of the law of injunctions before summarizing the pertinent portions of the Tenth Circuit’s and the Supreme Court’s Hobby Lobby decisions. I then summarize the parties’ specific disagreements regarding the permanent injunction and resolve each point of contention seriatim.
1 After the Tenth Circuit issued its decision in Hobby Lobby Stores, Inc. v. Sebelius, Sylvia Burwell replaced Kathleeen Sebelius as the Secretary of Health and Human Services, and she was substituted as the Petitioner on appeal to the Supreme Court.
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LEGAL BACKGROUND Law of Injunctions
It is well established that an injunction is a form of equitable relief. See Signature Prop. Int'l Ltd. P'ship v. City of Edmond, 310 F.3d 1258, 1268 (10th Cir. 2002) (citing Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221, 1231 (10th Cir.1997)). Consequently, my discretion in formulating an injunction is informed by equitable principles. ClearOne Commc'ns, Inc. v. Bowers, 643 F.3d 735, 752 (10th Cir. 2011) (citing Garrison v. Baker Hughes Oilfield Operations, Inc., 287 F.3d 955, 962 (10th Cir.2002)). My authority to provide injunctive relief survives the discontinuance of the illegal conduct giving rise to the need for an injunction, F.T.C. v. Accusearch Inc., 570 F.3d 1187, 1201 (10th Cir. 2009) (citing United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953)). Furthermore, the prevailing party “has a right to expect that prospective relief will be maintained unless the injunction is vacated or modified by the court.” Dowell by Dowell v. Bd. of Educ. of Okla. City Pub. Sch., Indep. Dist. No. 89, 795 F.2d 1516, 1521 (10th Cir. 1986) (citations omitted).
Discretion is not, however, without limits. The injunction “must be narrowly tailored to remedy the harm shown.” ClearOne Commc'ns, Inc., 643 F.3d at 752. The order entering the injunction must state the reasons why the injunction is issued, specifically state the terms of the injunction, and describe in reasonable detail the act or acts restrained or required. Fed. R. Civ. P. 65(d). Furthermore, where an injunction implicates an act of Congress, I cannot “ignore the judgment of Congress, deliberately expressed in legislation.” United States v. Oakland Cannabis Buyers' Co-op., 532 U.S. 483, 497 (2001). Even where I have cause to issue an injunction regarding a congressional act, Congress is free to change the terms of the underlying substantive law, and “it is those amended laws—not the terms of past injunctions—that must be given
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prospective legal effect.” Biodiversity Assoc. v. Cables, 357 F.3d 1152, 1165 (10th Cir. 2004). The same is not true with respect to changes in administrative regulations, which are evaluated in the exercise of discretion.
Finally, an injunction “must be obeyed until it is reversed, even if it is erroneously issued, and in some instances even if the court that issued the injunction lacked jurisdiction of the subject matter.” Dan B. Dobbs, Law of Remedies: Damages – Equity – Restitution 105 (2007). Nevertheless, a party may seek to modify or dissolve an injunction in the court where the injunction was entered if “a significant change either in factual conditions or in law renders continued enforcement detrimental to the public interest.” Horne v. Flores, 557 U.S. 433, 447 (2009) (quotation omitted). In such an event, “the party seeking relief bears the burden of establishing that changed circumstances warrant relief.” Id. A district court will modify or dissolve an injunction on the basis of a change in underlying statutes, but it is the court, not the parties, that is charged with the authority to do so. See Miller v. French, 530 U.S. 327, 341-42 (2000). The authority to modify or dissolve an injunction is one of the pivotal reasons why courts retain jurisdiction over such equitable proceedings.
With these principles in mind, I turn to the pertinent portions of the Tenth Circuit’s and the Supreme Court’s Hobby Lobby decisions.
Hobby Lobby The owners of Hobby Lobby Stores, Inc. and Mardel, Inc. filed suit challenging the regulations imposing the Contraceptive Mandate under RFRA, the Free Exercise Clause of the First Amendment, and the Administrative Procedure Act. Like Hercules, both Hobby Lobby and Mardel are closely-held corporations whose owners run them according to Christian principles. Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1120 (10th Cir. 2013). Like the Newlands,
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the Greens (the owners of Hobby Lobby and Mardel) objected to the Contraceptive Mandate because it violated their religious beliefs. Id. at 1120-21. After the district court denied their motion for a preliminary injunction, Hobby Lobby, Mardel, and the Greens appealed to the Tenth Circuit. Id. at 1125. They sought, and were granted, initial en banc consideration of their appeal. Id.
The Tenth Circuit overturned the district court’s decision, finding that Hobby Lobby and Mardel had established a strong likelihood of success on the merits of their RFRA claim.2 Id. at 1121. As an initial matter, the Tenth Circuit concluded that the corporations had standing to challenge the Contraceptive Mandate, but it did not reach a decision regarding the owners’ individual standing to challenge the Mandate. Id. at 1126.
Turning to the merits of Hobby Lobby’s and Mardel’s RFRA claim, the Tenth Circuit concluded that a closely-held corporation can exercise religion, within the scope of RFRA, Id. at 1132. The Tenth Circuit then concluded that the Contraceptive Mandate substantially burdens a corporation’s exercise of religion where the corporation is closely-held, the corporation’s owners unanimously share religious beliefs by which they govern the corporation, and the Contraceptive Mandate is contrary to the owners’ sincerely held religious beliefs. Id. at 1138-43.
Having determined that Hobby Lobby and Mardel met their burden of establishing a substantial burden, the Tenth Circuit next considered whether the government had met its burden of showing that the Contraceptive Mandate serves a compelling government interest and that the challenged regulation constitutes the least restrictive means of serving that interest. As a threshold matter, the Tenth Circuit held that the Contraceptive Mandate did not serve a
2 The Tenth Circuit declined to reach the Plaintiffs’ First Amendment claim. Hobby Lobby, 723 F.3d at 1121 n. 2.
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compelling government interest, because the government’s asserted interest in enforcing the Contraceptive Mandate against Hobby Lobby and Mardel was too broadly formulated. Id. at 1143. The court also held that the existence of numerous exemptions from the Contraceptive Mandate undermined the government’s argument that it had a compelling interest in enforcing the Contraceptive Mandate against Hobby Lobby. Id. at 1143-44. Furthermore, the Tenth Circuit held that, even if there was a compelling interest, the Contraceptive Mandate was not the least restrictive means of serving that interest. Id. at 1144. Accordingly, the Tenth Circuit remanded the case to the district court for further consideration of the remaining preliminary injunction factors.
The Supreme Court upheld the Tenth Circuit’s en banc decision, holding that the regulations imposing the Contraceptive Mandate, as applied to closely-held corporations with sincerely held religious beliefs contrary to the Mandate’s requirements, violated RFRA. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2759 (2014). The basis for the Supreme Court’s decision was not, however, identical to that of the Tenth Circuit.
Similar to the Tenth Circuit, the Supreme Court held that a closely-held corporation can exercise religion under RFRA, id. at 2775, and that the Contraceptive Mandate violated Hobby Lobby’s sincerely-held religious beliefs. Id. at 2779. Unlike the Tenth Circuit, the Supreme Court did not determine whether the Contraceptive Mandate furthered a compelling governmental interest. Id. at 2780. Instead, the Supreme Court assumed the Mandate advanced a compelling interest, but it held that the Mandate was not the least restrictive means of furthering that interest. Id. In making this finding, the Court relied heavily on the existing accommodation for non-profit organizations with religious objections, finding that such an accommodation “does not impinge on [Hobby Lobby’s] religious belief that providing insurance
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coverage for the contraceptives at issue here violates [its] religion, and it serves HHS’s state interests equally well.” Id. at 2782.
With these principles in mind, I turn to this case and the parties’ arguments regarding the scope of and the authority for the injunction.
DISCUSSION Defendants raise three primary objections to Plaintiffs’ proposed permanent injunction. First, they argue that because the Supreme Court’s Hobby Lobby decision was limited to the application of the 2013 contraceptive mandate regulations to closely-held corporations, the injunction should only preclude the government from enforcing the 2013 contraceptive mandate regulations against Hercules Industries, Inc. In other words, Defendants suggest that the government should be able to revise its Contraceptive Mandate regulations and impose them on all of the Plaintiffs without violating the terms of the permanent injunction. Second, Defendants argue that because the Hobby Lobby decision was limited to the rights of the closely-held corporation and not the rights of the closely-held corporation’s ownership, the injunction should be limited to Hercules. Finally, Defendants argue that the injunction should be premised on the Supreme Court’s decision in Hobby Lobby and Defendants’ consent. I discuss each issue seriatim. 1. Scope of the Injunction The parties misapprehend the appropriate scope of a permanent injunction. Plaintiffs contend Defendants should be permanently enjoined from enforcing the Contraceptive Mandate against them, without making any specific allowance for the possibility that the government could re-formulate the Contraceptive Mandate in compliance with the Supreme Court’s decision in Hobby Lobby. Defendants argue that the injunction should be limited to the Contraceptive
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Mandate as it was struck down by the Supreme Court in Hobby Lobby, effectively allowing the government to unilaterally circumvent the permanent injunction without first seeking an order modifying or dissolving the injunction. These arguments fail to recognize the binding decisions of the Tenth Circuit and Supreme Court and the fundamental principles of injunctive relief.
Plaintiffs’ proposed injunction fails to account for the limited nature of the Tenth Circuit’s and Supreme Court’s Hobby Lobby decisions. The Tenth Circuit and the Supreme Court limited their decisions regarding the validity of the Contraceptive Mandate to the regulations enforcing that mandate. Neither court determined that the statute underlying the Mandate violated the RFRA rights of the corporate plaintiffs or, a fortiori, the RFRA rights of the individual owners. Moreover, Plaintiffs in this case primarily sought relief from the regulations enforcing the Contraceptive Mandate. They sought relief from the Preventive Services provision of the ACA only “to the extent Defendants have used [the statute] to mandate coverage to which Plaintiffs and other employers have religious objections.” Accordingly, the injunction is limited to the Contraceptive Mandate regulations, and does not extend to the statutory Preventive Services Mandate.
Additionally, although the Tenth Circuit based its decision on its determination that the government lacked a compelling interest in enforcing the Contraceptive Mandate, the Supreme Court’s decision was based on its determination that the Contraceptive Mandate was not the least restrictive means of accomplishing the government’s interest. The Supreme Court assumed without deciding that the Contraceptive Mandate furthered a compelling interest. This distinction is significant. If there were no compelling interest, then regardless of whether the government provided an accommodation for closely-held corporations, the Contraceptive Mandate would still violate RFRA. Because, however, the Supreme Court’s decision focused
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on the least restrictive means determination, it expressly held that the government could provide accommodations that would bring the Contraception Mandate into compliance with RFRA.
Defendants’ proposed injunction fails to account for the fundamental principles of injunctive relief. If the injunction is to fulfill its equitable purpose, it must provide meaningful relief to Plaintiffs. The government’s proposed injunction would, in effect, allow the government to unilaterally modify or dissolve the injunction without first demonstrating a change in circumstances justifying such modification or dissolution. That cannot be.
As with any other injunction, the government may seek to modify or dissolve the injunction entered in this case if “a significant change either in factual conditions or in law renders continued enforcement detrimental to the public interest.” Horne, 557 U.S. at 447 (quotation omitted). The government, however, bears the burden of justifying modification or dissolution (i.e., that a regulation enforcing the Contraceptive Mandate does not violate Hercules’ RFRA rights).
As the Supreme Court held, the government may revise its Contraceptive Mandate regulations to bring them into compliance with RFRA. It is not, however, the government’s right to unilaterally determine that it is entitled to enforce any such regulations against Plaintiffs. The injunction makes clear that it will remain in full force and effect until I order otherwise, and the injunction is neither dissolved nor modified by the unilateral action of either party.
Finally, the issues not decided by the Supreme Court and the Court of Appeals did not vanish. Namely, questions remain concerning, inter alia, the individual owners’ standing and whether the First Amendment claims of Plaintiffs are enforceable. Should the government seek to dissolve the injunction, Plaintiffs may seek to re-assert these claims as an additional defense to any prospective enforcement of revised regulations enforcing the Contraceptive Mandate.
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2. Parties Bound by and Benefiting from the Injunction Both the Tenth Circuit and the Supreme Court declined to determine whether the owners
of a closely-held corporation have standing in their own right to assert a RFRA claim. Plaintiffs argue that the injunction should extend to both Hercules and the Newlands, while Defendants argue that the injunction should be limited to Hercules only.
As both parties acknowledge, there is no practical difference at this time in terms of the result: whether or not the injunction applies to the Newlands, the government will be enjoined from violating Hercules’ RFRA rights, and the very essence of Hercules’ RFRA rights are the rights of the Newlands. Accordingly, and in following the Tenth Circuit and the Supreme Court, the injunction is “limited” to Hercules; the claims of the individual owners remain unresolved.
3. Authority for the Injunction Without justification, Defendants argue that the injunction should be premised on the
Supreme Court’s Hobby Lobby decision and “the defendants’ consent.” This proposed arrogation of authority offends the very structure of our government, and ignores the exclusive jurisdictional authority of the United States District Court to provide such relief. Notwithstanding Defendants’ suggestion to the contrary, the injunction is entered under the jurisdictional authority of the United States District Court and it remains in full force an effect unless and until modified or dissolved by the District Court upon a showing of just cause or by order entered by the Court of Appeals following review.
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CONCLUSION The permanent injunction against Defendants shall issue in favor of Hercules Industries, Inc. The claims of William Newland, Paul Newland, James Newland, Andrew Newland, and Christina Ketterhagen are abated pending further action by the Court.

Dated: March 16, 2015

BY THE COURT:
s/ John L. Kane Senior U.S. District Court Judge

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge John L. Kane
Civil Action No. 1:12-cv-1123-JLK
WILLIAM NEWLAND; PAUL NEWLAND; JAMES NEWLAND; CHRISTINE KETTERHAGEN; ANDREW NEWLAND; and HERCULES INDUSTRIES, INC., a Colorado corporation;
Plaintiffs,
v.
KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; HILDA SOLIS, in her official capacity as Secretary of the United States Department of Labor; TIMOTHY GEITHNER, in his official capacity as Secretary of the United States Department of the Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; UNITED STATED DEPARTMENT OF THE TREASURY;
Defendants.
ORDER
Kane, J.
This matter is currently before me on Plaintiffs’ Motion for Preliminary Injunction (doc.
5). Based on the forthcoming discussion, Plaintiffs’ motion is GRANTED.
BACKGROUND
The Patient Protection and Affordable Care Act
Signed into law on March 23, 2010, the Patient Protection and Affordable Care Act
(“ACA”), Pub. L. No. 111-148, 124 Stat. 119 (2010), instituted a variety of healthcare reforms.
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Among its many provisions, it requires most U.S. citizens and legal residents to have health
insurance, creates state-based health insurance exchanges, and requires employers with fifty or
more full-time employees to offer health insurance.1 Id. The ACA also implemented a series of
provisions aimed at insuring minimum levels of health care coverage.2 Most relevant to the
instant suit, the ACA requires group health plans to provide no-cost coverage for preventive care
and screening for women. 42 U.S.C. § 300gg-13(a)(4).3
Unlike some other provisions of the ACA, however, the preventive care coverage
mandate does not apply to certain healthcare plans existing on March 23, 2010.4 See Interim
1 In a recent decision, the Supreme Court upheld the constitutionality of the so-called individual mandate, but invalidated the portion of the Affordable Care Act threatening loss of existing Medicaid funding if a state declines to expand its Medicaid programs. Nat’l Fed’n of Indep. Bus. v. Sebelius, __ U.S. __; 183 L. Ed. 2d 450 (June 28, 2012).
2 Termed the “Patient’s Bill of Rights” these provisions require health plans to: provide coverage to persons with pre-existing conditions, protect a patient’s choice of doctors, allow adults under the age of twenty-six to maintain coverage under their parent’s health plan, prohibit annual and lifetime limits on most healthcare benefits, and end pre-existing condition exclusions for children under the age of nineteen. See Patient’s Bill of Rights available at http://www.healthcare.gov/law/features/rights/bill-of-rights/index.html (last viewed on July 27, 2012). As discussed infra at n.4, not all health plans are required to meet these conditions.
3 The ACA did not, however, specifically delimit the contours of preventive care. Instead, it delegated that responsibility to the Health Resources and Services Administration (“HRSA”). On August 1, 2011, HRSA adopted Required Health Plan Coverage Guidelines that defined the scope of women’s preventive services for purposes of the ACA coverage mandate. See HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines available at http://www.hrsa.gov/womensguidelines/ (last visited July 27, 2012). The HRSA guidelines include, among other things, “the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” Id.
4 Numerous provisions of the ACA apply to grandfathered health plans: the prohibition on pre-existing condition exclusions (group health plans only), the prohibition on excessive waiting periods (both group and individual health plans), the prohibition on lifetime (both) and annual (group only) benefit limits, the prohibition on rescissions (both), and the extension of dependent care coverage (both) to name a few. 75 Fed. Reg. at 34542. For a comprehensive
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Final Rules for Group Health Plans and Health Insurance Coverage Relating to Status as a
Grandfathered Health Plan Under the Patient Protection and Affordable Care Act, 75 Fed. Reg.
34538,34540 (June 17, 2010). This gap in the preventive care coverage mandate is significant.
According to government estimates, 191 million Americans belong to plans which may be
grandfathered under the ACA. Id. at 34550. Although there are many requirements for
maintaining grandfathered status, see 26 C.F.R. § 54.9815-1251T(g), if those requirements are
met a plan may be grandfathered for an indefinite period of time.
In addition to grandfathering under the ACA, the preventive care guidelines exempt certain religious employers from any requirement to cover contraceptive services.5 See Interim
Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of
Preventive Services Under the Patient Protection and Affordable Care Act, 76 Fed. Reg. 46621
(Aug. 3, 2011). The guidelines also contain a temporary enforcement “safe-harbor” for plans
sponsored by certain non-profit organizations with religious objections to contraceptive coverage
summary of the applicability of ACA provisions to grandfathered health plans, see Application of the New Health Reform Provisions of Part A of Title XXVII of the PHS Act to Grandfathered Plans, available at http://www.dol.gov/ebsa/pdf/grandfatherregtable.pdf. (last visited July 26, 2012).
5 In order to qualify as a “religious employer” eligible for this exemption, an employer must meet the following criteria:
(1) The inculcation of religious values is the purpose of the organization. (2) The organization primarily employs persons who share the religious tenets of the organization. (3) The organization serves primarily persons who share the religious tenets of the organization. (4) The organization is a non-profit 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. 46621, 46626 (Aug. 3, 2011); See 77 Fed. Reg. 8725 (Feb. 15, 2012). 3

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that do not qualify for the religious employer exemption. See Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act 77 Fed. Reg. 8725, 8726-8727 (Feb. 15, 2012). The preventive care guidelines take effect on August 1, 2012.
Hercules Industries, Inc. Plaintiff Hercules Industries, Inc. is a Colorado s-corp engaged in the manufacture and distribution of heating, ventilation, and air conditioning (“HVAC”) products and equipment. Hercules is owned by siblings William, Paul and James Newland and Christine Ketterhagen, who also comprise the company’s Board of Directors. Additionally, William Newland serves as President of the company and his son, Andrew Newland serves as Vice President.6 Although Hercules is a for-profit, secular employer, the Newlands adhere to the Catholic denomination of the Christian faith. According to the Newlands, “they seek to run Hercules in a manner that reflects their sincerely held religious beliefs” Amended Complaint (doc. 19) at ¶ 2. Thus, for the past year and a half the Newlands have implemented within Hercules a program designed to build their corporate culture based on Catholic principles. Id. at ¶ 36. Hercules recently made two amendments to its articles of incorporation, which reflect the role of religion in its corporate governance: (1) it added a provision specifying that its primary purposes are to be achieved by “following appropriate religious, ethical or moral standards,” and (2) it added a provision allowing members of its board of directors to prioritize those “religious, ethical or moral standards” at the expense of profitability. Id. at ¶ 112. Furthermore, Hercules has donated
6 Throughout this opinion, I will refer to William Newland, Paul Newland, James Newland, Christine Ketterhagen, and Andrew Newland as the “Newlands.”
4

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significant amounts of money to Catholic organizations and causes. Id. at ¶ 35. According to Plaintiffs, Hercules maintains a self-insured group plan for its employees
“[a]s part of fulfilling their organizational mission and Catholic beliefs and commitments.” Id. at ¶¶ 37. Significantly, because the Catholic church condemns the use of contraception, Hercules self-insured plan does not cover abortifacent drugs, contraception, or sterilization. Id. at ¶ 41.
Hercules’ health insurance plan is not “grandfathered” under the ACA. Furthermore, notwithstanding the Newlands’ religious beliefs, as a secular, for-profit corporation, Hercules does not qualify as a “religious employer” within the meaning of the preventive care regulations. Nor may it seek refuge in the enforcement “safe harbor.” Accordingly, Hercules will be required to either include no-cost coverage for contraception in its group health plan or face monetary penalties. Faced with a choice between complying with the ACA or complying with their religious beliefs, Plaintiffs filed the instant suit challenging the women’s preventive care coverage mandate as violative of RFRA, the First Amendment, the Fifth Amendment, and the Administrative Procedure Act.
Believing the alleged injury to their constitutional and statutory rights to be imminent, Plaintiffs filed the instant Motion for Preliminary Injunction.
DISCUSSION A preliminary injunction is an extraordinary remedy; accordingly, the right to relief must be clear and unequivocal. See, e.g., Flood v. ClearOne Commc’ns, Inc., 618 F.3d 1110, 1117 (10th Cir. 2010). To meet this burden, a party seeking a preliminary injunction must show: (1) a likelihood of success on the merits, (2) a threat of irreparable harm, which (3) outweighs any harm to the non-moving party, and that (4) the injunction would not adversely affect the public
5

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interest. See, e.g., Awad v. Ziriax, 670 F.3d 1111, 1125 (10th Cir. 2012). Although this inquiry is, on its face, relatively straightforward, there are a variety of exceptions. If the injunction will (1) alter the status quo, (2) mandate action by the defendant, or (3) afford the movant all the relief that it could recover at the conclusion of a full trial on the merits, the movant must meet a heightened burden. See O Centro Espirita Beneficente Uniao do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir. 2004) (en banc), aff’d and remanded, Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006).
In determining whether an injunction falls into one of these “disfavored” categories, courts often focus on whether the requested injunctive relief will alter the status quo. The “status quo” is “the last uncontested status between the parties which preceded the controversy until the outcome of the final hearing.” Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 269 F.3d 1149, 1155 (10th Cir. 2001). In making this determination, however, I must look beyond the parties’ legal rights, focusing instead on the reality of the existing status and relationship between the parties. Schrier v. Univ. of Colo., 427 F.3d 1253, 1260 (10th Cir. 2005). If the requested relief would either preserve or restore the relationship and status existing ante bellum, the injunction does not alter the status quo.
This determination is not, however, necessarily dispositive. An injunction restoring the status quo ante bellum may require action on behalf of the nonmovant. Such an injunction, one which “affirmatively require[s] the nonmovant to act in a particular way,” is mandatory and disfavored. Id. at 1261.
Although I follow the Tenth Circuit’s guidance in determining whether Plaintiffs seek to disturb the status quo or require affirmative action by Defendants, I am careful to avoid
6

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uncritical adherence to the “status quo-formula” and the “mandatory/prohibitory formulation.” In making this determination, I must be mindful of “the fundamental purpose of preliminary injunctive relief under our Rules of Civil Procedure, which is ‘to preserve the relative positions of the parties until a trial on the merits can be held.’” Bray v. QFA Royalties, LLC, 486 F. Supp. 2d 1237, 1243-44 (D. Colo. 2007) (citing O Centro, 389 F.3d at 999-1001 (Seymour, C.J., concurring)).
Before the instigation of this lawsuit, Plaintiffs maintained an employee insurance plan that excluded contraceptive coverage. Although Defendants have passed a regulation requiring Plaintiffs to include such coverage in their coverage for the plan-year beginning on November 1, 2012, that regulation, as it applies to Plaintiffs, has not yet taken effect. Should the requested injunction enter, Defendants will be enjoined from enforcing the preventive care coverage mandate against Plaintiffs pending the outcome of this suit. The status quo will be preserved, and Defendants will not be required to take any affirmative action.
Because Plaintiffs do not seek a “disfavored” injunction, I must consider whether Plaintiffs are entitled to rely on an altered burden of proof. Cf. O Centro, 389 F.3d at 976. If the equities tip strongly in their favor, Plaintiffs “may meet the requirement for showing success on the merits by showing that questions going to the merits are so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation.”7
7 Although some courts in this district have questioned the continued validity of this relaxed likelihood-of-success-on-the-merits standard in light of the Supreme Court’s decision in Winter v. Natural Resource Defense Council, Inc., 555 U.S. 7, 20 (2008) (holding that a plaintiff seeking a preliminary injunction “must establish that he is likely to succeed on the merits”), because the Tenth Circuit has continued to refer to this relaxed standard I assume it still governs the issuance of preliminary injunctions in this circuit. See RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1209 n.3 (10th Cir. 2009).
7

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Okla. ex rel. Okla. Tax Comm’n v. Int’l Registration Plan, Inc., 455 F.3d 1107, 1113 (10th Cir. 2006).
Accordingly, I begin by considering the equities before turning to Plaintiffs’ likelihood of success on the merits.
1. Irreparable Harm Although it is well-established that the potential violation of Plaintiffs’ constitutional and RFRA rights threatens irreparable harm, see Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir. 2001), Plaintiffs must also establish that “the injury complained of is of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm.” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003) (emphasis in original). Imminence does not, however, require immediacy. Plaintiffs need only demonstrate that absent a preliminary injunction, “[they] are likely to suffer irreparable harm before a decision on the merits can be rendered.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (quoting 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2948.1, p. 139 (2d ed. 1995)). Absent injunctive relief, Plaintiffs will be required to provide FDA-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity as part of their employee insurance plan. Per the terms of the preventive care coverage mandate, that coverage must begin on the start date of the first plan year following the effective date of the regulations, November 1, 2012. Defendants argue this harm, three months in the future, is not sufficiently imminent to justify injunctive relief. In light of the extensive planning involved in preparing and providing its employee insurance plan, and
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the uncertainty that this matter will be resolved before the coverage effective date, Plaintiffs have adequately established that they will suffer imminent irreparable harm absent injunctive relief. This factor strongly favors entry of injunctive relief.
2. Balancing of Harms I must next weigh the irreparable harm faced by Plaintiffs against the harm to Defendants should an injunction enter. Should an injunction enter, Defendants will be prevented from “enforcing regulations that Congress found it in the public interest to direct that agency to develop and enforce.” Cornish v. Dudas, 540 F. Supp. 2d 61, 61 (D.D.C. 2008). This harm pales in comparison to the possible infringement upon Plaintiffs’ constitutional and statutory rights. This factor strongly favors entry of injunctive relief.
3. Public Interest Defendants argue that entry of the requested injunction is contrary to the public interest, because it would “undermine [their] ability to effectuate Congress’s goals of improving the health of women and children and equalizing the coverage of preventive services for women and men so that women who choose to do so can be part of the workforce on an equal playing field with men.” Defendants’ Response (doc. 26) at73. This asserted interest is, however, undermined by the creation of exemptions for certain religious organizations and employers with grandfathered health insurance plans and a temporary enforcement safe harbor for non-profit organizations. These interests are countered, and indeed outweighed, by the public interest in the free exercise of religion. As the Tenth Circuit has noted, “there is a strong public interest in the free
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exercise of religion even where that interest may conflict with [another statutory scheme].” O Centro, 389 F.3d at 1010. Accordingly, the public interest favors entry of an injunction in this case.
On balance, the threatened harm to Plaintiffs, impingement of their right to freely exercise their religious beliefs, and the concommittant public interest in that right srongly favor the entry of injunctive relief. Although the less rigorous standard for preliminary injunctions is not applied when “a preliminary injunction seeks to stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme,” Aid for Women v. Foulston, 441 F.3d 1101, 1115 (10th Cir. 2006), the government’s creation of numerous exceptions to the preventive care coverage mandate has undermined its alleged public interest.8 Accordingly, I find the general rule disfavoring the relaxed standard inapplicable. Plaintiffs need only establish that their challenge presents “questions going to the merits . . . so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation.” Okla. Tax Comm’n, 455 F.3d at 1113.
4. Likelihood of Success on the Merits Plaintiffs raise a variety of constitutional and statutory challenges. Because Plaintiffs’ RFRA challenge provides adequate grounds for the requested injunctive relief, I decline to address their challenges under the Free Exercise, Establishment and Freedom of Speech Clauses of the First Amendment. See, e.g., United States v. Hardeman, 297 F.3d 1116, 1135-36 (10th Cir. 2002) (en banc).
8 See discussion supra at pp. 2-4 and infra at p. 14-15. 10

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Passed in 1993, the Religious Freedom Restoration Act (“RFRA”) sought to “restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened.” 42 U.S.C. § 2000bb(b). Although unconstitutional as applied to the states, see City of Boerne v. Flores, 521 U.S. 507 (1997), it remains constitutional as applied to the federal government. See United States v. Wilgus, 638 F.3d 1274, 1279 (10th Cir. 2011).
Under RFRA, the government may not “substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” 42 U.S.C. § 2000bb1(a). This general prohibition is not, however, without exception. The government may justify a substantial burden on the free exercise of religion if the challenged law: “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” Id. at § 2000bb-1(b). The initial burden is borne by the party challenging the law. Once that party establishes that the challenged law substantially burdens her free exercise of religion, the burden shifts to the government to justify that burden. The nature of this preliminary injunction proceeding does not alter these burdens. Gonzales, 546 U.S. at 429. Thus, I must first consider whether Plaintiffs have demonstrated that the preventive care coverage mandate substantially burdens their free exercise of religion. If so, I must then consider whether the government has demonstrated that the preventive care coverage mandate is the least restrictive means to achieve a compelling interest.
Substantial Burden of Free Exercise Plaintiffs argue that providing contraception coverage violates their sincerely held
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religious beliefs. Although the government does not challenge the sincerity of the Newlands’ religious beliefs, it argues that Plaintiffs have failed to demonstrate a substantial burden on their free exercise of religion. This argument relies upon two key premises. First, the government asserts that the burden of providing insurance coverage is borne by Hercules. Second, the government argues that as a for-profit, secular employer, Hercules cannot engage in an exercise of religion. Accordingly, the argument concludes, the preventive care coverage mandate cannot burden Hercules’ free exercise of religion.9 Plaintiffs counter, arguing that there exists no law forbidding a corporation from operating according to religious principles.
These arguments pose difficult questions of first impression. Can a corporation exercise religion? Should a closely-held subchapter-s corporation owned and operated by a small group of individuals professing adherence to uniform religious beliefs be treated differently than a publicly held corporation owned and operated by a group of stakeholders with diverse religious beliefs? Is it possible to “pierce the veil” and disregard the corporate form in this context? What is the significance of the pass-through taxation applicable to subchapter-s corporations as it pertains to this analysis? These questions merit more deliberate investigation.
Even if, upon further examination, Plaintiffs are able to demonstrate a substantial burden on their free exercise of religion, however, the government may justify its application of the preventive care coverage mandate by demonstrating that application of that mandate to Plaintiffs
9 In the alternative, the government argues that because Plaintiffs routinely contribute to other schemes that violate the religious beliefs alleged here, the preventive care coverage mandate does not substantially burden Plaintiffs’ free exercise of religion. This argument requires impermissible line drawing, and I reject it out of hand. See Thomas v. Review Bd. of Ind. Emp’t Sec., 450 U.S. 707, 715 (1981).
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is the least restrictive means of furthering a compelling interest. Compelling Interest
In order to justify a substantial burden on Plaintiffs’ free exercise of religion, the government must show that its application of the preventive carecoverage mandate to Plaintiffs furthers “interests of the highest order.” Hardeman, 297 F.3d at 1127. It is well-settled that the interest asserted in this case, the promotion of public health, is a compelling government interest. See Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487, 498 (10th Cir. 1998). The government argues that the preventive care coverage mandate, as applied to Plaintiffs and all similarly situated parties, furthers this compelling interest.
Assuming, arguendo, that application of the preventive care coverage mandate to Plaintiffs and all similarly situated parties furthers a compelling government interest,10 that argument does not justify a substantial burden on Plaintiffs’ free exercise of religion: “RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law to the person – the particular claimant whose sincere exercise of religion is being substantially burdened.” Gonzales, 546 U.S. at 430-31.
I do not mean to suggest that the government may not establish a compelling interest in the uniform application of a particular program. To make such a showing, however, the government must “offer[] evidence that granting the requested religious accommodations would seriously compromise its ability to administer this program.” Id. at 435. Any such argument is
10 Plaintiffs strenuously challenge whether the preventive care coverage mandate actually furthers the promotion of public health. I need not address that argument to resolve the instant motion, and I decline to do so.
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undermined by the existence of numerous exemptions to the preventive care coverage mandate. In promulgating the preventive care coverage mandate, Congress created significant exemptions for small employers and grandfathered health plans.11 12 26 U.S.C. § 4980H(c)(2) (exempting from health care provision requirement employers of less than fifty full-time employees); 42 U.S.C. § 18011 (grandfathering of existing health care plans). Even Defendants created a regulatory exemption to the contraception mandate. 76 Fed. Reg. 46621, 46626 (Aug. 3, 2011) (exempting certain religious employers from the contraception requirement of the preventive care coverage mandate).
“[A] law cannot be regarded as protecting an interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547 (1993); see also United States v. Friday, 525 F.3d 938, 958 (10th Cir. 2008). The government has exempted over 190 million health plan
11 The government’s attempt to characterize grandfathering as “phased implementation” is unavailing. As noted above, health plans may retain their grandfathered status indefinitely. Most damaging to the government’s alleged compelling interest, even though Congress required grandfathered health plans to comply with certain provisions of the ACA, it specifically exempted grandfathered health plans from complying with the preventive care coverage mandate. See 42 U.S.C. § 18011(a)(3-4) (specifying those provisions of the ACA that apply to grandfathered health plans).
12 The government argues that because these provisions are generally applicable, and not specifically limited to the preventive services coverage regulations, they are not exemptions from the preventive care coverage mandate. This is a distinction without substance. By exempting employers from providing health care coverage, these provisions exempt those employers from providing preventative health care coverage to women. If the government has a compelling interest in ensuring no-cost provision of preventative health coverage to women, that interest is compromised by exceptions allowing employers to avoid providing that coverage – whether broadly or narrowly crafted.
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participants and beneficiaries from the preventive care coverage mandate;13 this massive exemption completely undermines any compelling interest in applying the preventive care coverage mandate to Plaintiffs.14
Least Restrictive Means
Even if the government were able to establish a compelling interest in applying the preventive care coverage mandate to Plaintiffs, it must also demonstrate that there are no feasible less-restrictive alternatives. Wilgus, 638 F.3d at 1289. The government need not tilt at windmills; it need only refute alternatives proposed by Plaintiffs. Id.
Plaintiffs propose one alternative, government provision of free birth control, that could be achieved by a variety of methods: creation of a contraception insurance plan with free enrollment, direct compensation of contraception and sterilization providers, creation of a tax credit or deduction for contraceptive purchases, or imposition of a mandate on the contraception manufacturing industry to give its items away for free. Defendants argue Plaintiffs’ “misunderstand the nature of the ‘least restrictive means’ inquiry.” Brief in Opposition (doc. 26) at 43. According to Defendants, this inquiry should be limited to whether Plaintiffs and other similarly situated parties could be exempted without damaging Defendants’ compelling interest.
13 Even if, as is estimated under the government’s high-end estimate, 69% of health plans lose their grandfathered status by the end of 2013, millions health plan participants and beneficiaries will continue to be exempted from the preventive care coverage mandate. See 75 Fed. Reg. 34538, 34553.
14 To the extent the government argues creating an exemption for Plaintiffs threatens to undermine the preventive care coverage mandate, that argument is inconsistent with RFRA and irrelevant in this context. See Gonzales, 546 U.S. at 436 (rejecting “slippery slope” argument as inconsistent with RFRA).
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It is, however, not Plaintiffs but Defendants who misunderstand the least restrictive means inquiry. Defendants need not refute every conceivable alternative, but they “must refute the alternative schemes offered by the challenger.”15 Wilgus, 638 F.3d at 1289.
Despite their categorical argument, Defendants attempt to refute Plaintiffs’ proposed alternative. First, Defendants argue that because Plaintiffs’ alternative “would impose considerable new costs and other burdens on the Government and are otherwise impractical,” they should be rejected as not “feasible” or “plausible.” Brief in Opposition (doc. 26) at 44. Although a showing of impracticality is sufficient to refute the adequacy of a proposed alternative, Defendants have failed to make such a showing in this case. As Plaintiffs note, “the government already provides free contraception to women.” Reply Brief in Support (doc. 27) at 38.
Defendants also argue Plaintiffs’ alternative would not adequately advance the government’s compelling interests. They acknowledge that Plaintiffs’ alternative would achieve the purpose of providing contraceptive services to women with no cost sharing, but argue that Plaintiffs’ alternative will not “ensur[e] that women will face minimal logistical and administrative obstacles to receiving coverage of their care.” Brief in Opposition (doc. 26) at 45. Although Plaintiffs argue that this amounts to a redefinition of Defendants’ compelling interest,
15 Furthermore, both parties impermissibly expand the scope of this determination. As noted above, my inquiry is limited to the parties before me; I do not consider all other “similarly situated parties.” To the extent Plaintiffs’ alternative would apply to other parties, it is overinclusive. Because the parties frame this discussion, however, I analyze the alternative as presented by Plaintiffs and responded to by Defendants.
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it is instead a logical corollary thereto.16 Nonetheless, Defendants have failed to adduce facts establishing that government provision of contraception services will necessarily entail logistical and administrative obstacles defeating the ultimate purpose of providing no-cost preventive health care coverage to women. Once again, the current existence of analogous programs heavily weighs against such an argument.
Defendants bear the burden of demonstrating that refusing to exempt Plaintiffs from the preventive care coverage mandate is the least restrictive means of furthering their compelling interest. Given the existence of government programs similar to Plaintiffs’ proposed alternative, the government has failed to meet this burden.
Conclusion The balance of the equities tip strongly in favor of injunctive relief in this case. Because this case presents “questions going to the merits . . . so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation,” I find it appropriate to enjoin the implementation of the preventive care coverage mandate as applied to Plaintiffs. Accordingly, Defendants, their agents, officers, and employees, and their requirements that Plaintiffs provide FDA-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity, are ENJOINED from any application or enforcement thereof against Plaintiffs, including the substantive requirement imposed in 42
16 To be clear, I do not believe Defendants have sufficiently demonstrated a compelling interest in enforcing the preventive care coveragemandate against Plaintiffs. For purposes of my analysis under “least restrictive means” prong of RFRA, however, I assume the existence of such an interest.
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U.S.C. § 300gg-13(a)(4), the application of the penalties found in 26 U.S.C. §§ 4980D & 4980H and 29 U.S.C. § 1132, and any determination that the requirements are applicable to Plaintiffs.
Pursuant to Fed. R. Civ. P. Rule 65(c), Plaintiffs shall post a $100.00 bond as security for any costs and damages that may be sustained by Defendants in the event they have been wrongfully enjoined or restrained.
Such injunction shall expire three months from entry of an order on the merits of Plaintiffs’ challenge. In order to expedite the resolution of this case, the parties shall file a Joint Case Management Plan on or before August 27, 2012.
And, finally, I take this opportunity to emphasize the ad hoc nature of this injunction. The government’s arguments are largely premised upon a fear that granting an exemption to Plaintiffs will necessarily require granting similar injunction to all other for-profit, secular corporations voicing religious objections to the preventive care coverage mandate. This injunction is, however, premised upon the alleged substantial burden on Plaintiffs’ free exercise of religion – not to any alleged burden on any other party’s free exercise of religion. It does not enjoin enforcement of the preventive care coverage mandate against any other party.

Dated: July 27, 2012

BY THE COURT:
/s/ John L. Kane Senior U.S. District Court Judge

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 Case: 1:12-cv-1123 As of: 04/10/2016 07:04 PM MDT 1 of 11
U.S. District Court District of Colorado (Denver) CIVIL DOCKET FOR CASE #: 1:12−cv−01123−JLK

TERMED

Newland et al v. Sebelius et al Assigned to: Judge John L. Kane Case in other court: USCA, 12−01380
Supreme Court, 13−00919 Cause: 42:2000bb Religious Freedom Restoration Act.
Plaintiff

Date Filed: 04/30/2012 Date Terminated: 03/17/2015 Jury Demand: Plaintiff Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

William Newland

represented by David Andrew Cortman Alliance Defending Freedom−Scottsdale 15100 North 90th Street Suite 165 Scottsdale, AZ 85260 480−444−0020 Fax: 480−444−0028 Email: dcortman@alliancedefendingfreedom.org ATTORNEY TO BE NOTICED

Erik William Stanley Alliance Defending Freedom−Leawood 15192 Rosewood Leawood, KS 66224 913−685−8000 Fax: 913−685−8001 Email: estanley@alliancedefendingfreedom.org ATTORNEY TO BE NOTICED

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

Kevin H. Theriot Alliance Defending Freedom−Scottsdale 15100 North 90th Street Suite 165 Scottsdale, AZ 85260 480−444−0020 Fax: 480−444−0028 Email: ktheriot@alliancedefendingfreedom.org ATTORNEY TO BE NOTICED

Matthew Scott Bowman Alliance Defending Freedom−DC 440 First Street, NW Suite 600 Washington, DC 20001 202−393−8690 Fax: 202−347−3622 Email: mbowman@alliancedefendingfreedom.org ATTORNEY TO BE NOTICED

Steven H. Aden

Case: 1:12-cv-1123 As of: 04/10/2016 07:04 PM MDT 2 of 11

Alliance Defending Freedom−DC 440 First Street, NW Suite 600 Washington, DC 20001 202−393−8690 Fax: 202−347−3622 Email: saden@alliancedefendingfreedom.org ATTORNEY TO BE NOTICED

Michael Jeffrey Norton Alliance Defending Freedom−Greenwood Village 7951 East Maplewood Avenue Suite 100 Greenwood Village, CO 80111 720−689−2410 Fax: 303−694−0703 Email: mjnorton@alliancedefendingfreedom.org ATTORNEY TO BE NOTICED

Plaintiff Paul Newland

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

Erik William Stanley (See above for address) ATTORNEY TO BE NOTICED

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

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

Matthew Scott Bowman (See above for address) ATTORNEY TO BE NOTICED

Steven H. Aden (See above for address) ATTORNEY TO BE NOTICED

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

Plaintiff James Newland

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

Erik William Stanley (See above for address) ATTORNEY TO BE NOTICED

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

Kevin H. Theriot (See above for address)

Case: 1:12-cv-1123 As of: 04/10/2016 07:04 PM MDT 3 of 11

ATTORNEY TO BE NOTICED

Matthew Scott Bowman (See above for address) ATTORNEY TO BE NOTICED

Steven H. Aden (See above for address) ATTORNEY TO BE NOTICED

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

Plaintiff Christine Ketterhagen

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

Erik William Stanley (See above for address) ATTORNEY TO BE NOTICED

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

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

Matthew Scott Bowman (See above for address) ATTORNEY TO BE NOTICED

Steven H. Aden (See above for address) ATTORNEY TO BE NOTICED

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

Plaintiff Andrew Newland

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

Erik William Stanley (See above for address) ATTORNEY TO BE NOTICED

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

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

Matthew Scott Bowman (See above for address) ATTORNEY TO BE NOTICED

Case: 1:12-cv-1123 As of: 04/10/2016 07:04 PM MDT 4 of 11

Steven H. Aden (See above for address) ATTORNEY TO BE NOTICED

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

Plaintiff
Hercules Industries, Inc. a Colorado Corporation

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

Erik William Stanley (See above for address) ATTORNEY TO BE NOTICED

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

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

Matthew Scott Bowman (See above for address) ATTORNEY TO BE NOTICED

Steven H. Aden (See above for address) ATTORNEY TO BE NOTICED

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

V. Defendant Kathleen Sebelius in her official capacity as Secretary of the United States Department of Health and Human Services
Defendant Hilda Solis in her official capacity as Secretary of the United States Department of Labor
Defendant Timothy Geithner in his official capacity as Secretary of the United States Department of the Treasury
Defendant

represented by Michelle Renee Bennett U.S. Department of Justice−DC−Federal Programs 20 Massachusetts Avenue N.W. Washington, DC 20008 202−305−8902 Fax: 202−616−8470 Email: michelle.bennett@usdoj.gov ATTORNEY TO BE NOTICED
represented by Michelle Renee Bennett (See above for address) ATTORNEY TO BE NOTICED
represented by Michelle Renee Bennett (See above for address) ATTORNEY TO BE NOTICED

Case: 1:12-cv-1123 As of: 04/10/2016 07:04 PM MDT 5 of 11

United States Department of Health and Human Services

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

Defendant United States Department of Labor

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

Defendant
United States Department of the Treasury

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

Date Filed 04/30/2012
04/30/2012 04/30/2012 04/30/2012 04/30/2012 04/30/2012
05/02/2012 05/02/2012 05/02/2012 05/02/2012

# Docket Text
1 COMPLAINT , Verified, against Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Filing fee $ 350, Receipt Number 1082−2815626), filed by Hercules Industries, Inc., James Newland, Paul Newland, Christine Ketterhagen, William Newland, Andrew Newland. (Attachments: # 1 Civil Cover Sheet, # 2 Summons for Kathleen Sebelius, # 3 Summons for Hilda Solis, # 4 Summons for Timothy Geithner, # 5 Summons for Dept. of HHS, # 6 Summons for Dept. of Labor, # 7 Summons for Dept. of Treasury)(Norton, Michael) (Entered: 04/30/2012)
2 NOTICE OF CASE ASSOCIATION of possibly related cases per D. Colo. L.R. 7.5 by Plaintiffs Hercules Industries, Inc., Christine Ketterhagen, Andrew Newland, James Newland, Paul Newland, William Newland (Norton, Michael) (Entered: 04/30/2012)
3 Case assigned to Judge John L. Kane and drawn to Magistrate Judge Kathleen M. Tafoya. Text Only Entry (dkals, ) (Entered: 04/30/2012)
4 SUMMONSES issued by Clerk. Magistrate Judge Consent Form attached. (Attachments: # 1 Magistrate Judge Consent Form) (dkals, ) (Entered: 04/30/2012)
5 MOTION for Preliminary Injunction by Plaintiffs Hercules Industries, Inc., Christine Ketterhagen, Andrew Newland, James Newland, Paul Newland, William Newland. (Attachments: # 1 Brief in Support, # 2 Proposed Order (PDF Only))(Norton, Michael) (Entered: 04/30/2012)
6 MINUTE ORDER As detailed in my dissent to the courts adoption of D.C. COLO. LCiv.R 72.2E and specified in my pretrial and trial procedures in civil cases, I view the delegation of Article III authority to Article I judges to be unconstitutional and will not approve the exercise of consent jurisdiction to magistrate judges. The parties to this case should disregard as inapplicable the Clerks office Instructions Regarding Notice of Availability of a United States Magistrate Judge issued with the Summons in this case by Judge John L. Kane on 04/30/12. Text Only Entry (jlksec) (Entered: 04/30/2012)
7 NOTICE of Entry of Appearance by Erik William Stanley on behalf of Hercules Industries, Inc., Christine Ketterhagen, Andrew Newland, James Newland, Paul Newland, William Newland (Stanley, Erik) (Entered: 05/02/2012)
8 NOTICE of Entry of Appearance by Kevin H. Theriot on behalf of Hercules Industries, Inc., Christine Ketterhagen, Andrew Newland, James Newland, Paul Newland, William Newland (Theriot, Kevin) (Entered: 05/02/2012)
9 NOTICE of Entry of Appearance by Steven H. Aden on behalf of Hercules Industries, Inc., Christine Ketterhagen, Andrew Newland, James Newland, Paul Newland, William Newland (Aden, Steven) (Entered: 05/02/2012)
10 NOTICE of Entry of Appearance by Gregory S. Baylor on behalf of Hercules Industries, Inc., Christine Ketterhagen, Andrew Newland, James Newland, Paul

Case: 1:12-cv-1123 As of: 04/10/2016 07:04 PM MDT 6 of 11

05/02/2012 05/03/2012 05/04/2012 05/04/2012 05/08/2012 06/08/2012 06/08/2012 06/11/2012 06/26/2012
06/26/2012
06/26/2012
06/28/2012 06/28/2012

Newland, William Newland (Baylor, Gregory) (Entered: 05/02/2012)
11 NOTICE of Entry of Appearance by Matthew Scott Bowman on behalf of Hercules Industries, Inc., Christine Ketterhagen, Andrew Newland, James Newland, Paul Newland, William Newland (Bowman, Matthew) (Entered: 05/02/2012)
12 NOTICE of Entry of Appearance by David Andrew Cortman on behalf of All Plaintiffs (Cortman, David) (Entered: 05/03/2012)
13 NOTICE of Entry of Appearance by Michelle Renee Bennett on behalf of All Defendants (Bennett, Michelle) (Entered: 05/04/2012)
14 Proposed Scheduling Order , Joint Motion by all parties to set schedule, by Plaintiffs Hercules Industries, Inc., Christine Ketterhagen, Andrew Newland, James Newland, Paul Newland, William Newland. (Attachments: # 1 Proposed Order (PDF Only))(Bowman, Matthew) (Entered: 05/04/2012)
15 MINUTE ORDER. Defendants' reponse to Plaintiffs' Motion for Preliminary Injunction 5 is due on 06/08/12. Plaintiffs' reply in support of their motion is due on 06/27/12 by Judge John L. Kane on 05/08/12. (jjhsl, ) (Entered: 05/08/2012)
16 MOTION to Dismiss by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Attachments: # 1 Memorandum in Support)(Bennett, Michelle) (Entered: 06/08/2012)
17 BRIEF in Opposition to 5 MOTION for Preliminary Injunction filed by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 06/08/2012)
18 MINUTE ORDER. Defendants' Motion to Dismiss 16 is set for a briefing schedule as follows: Plaintiffs' response to Defendants' motion is due on or before June 29, 2012; Defendants' reply in support of their motion is due on or before July 11, 2012 by Judge John L. Kane on 06/11/12. (jjhsl, ) (Entered: 06/11/2012)
19 AMENDED COMPLAINT First, Verified, against Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury, filed by Hercules Industries, Inc., James Newland, Paul Newland, Christine Ketterhagen, William Newland, Andrew Newland.(Bowman, Matthew) (Entered: 06/26/2012)
20 MINUTE ORDER. All current briefing deadlines are VACATED and RESET as follows. Pursuant to Fed. R. Civ. P. 15(a)(3), Defendants shall have up to and including July 10, 2012 to file an answer or otherwise respond to Plaintiffs' Amended Complaint. Plaintiffs shall file any necessary reply no later than July 17, 2012 by Judge John L. Kane on 06/26/12. (jjhsl, ) (Entered: 06/26/2012)
21 Utility Setting/Resetting Deadlines/Hearings: Timothy Geithner answer due 7/10/2012; Kathleen Sebelius answer due 7/10/2012; Hilda Solis answer due 7/10/2012; United States Department of Health and Human Services answer due 7/10/2012; United States Department of Labor answer due 7/10/2012; United States Department of the Treasury answer due 7/10/2012. Pursuant to the Minure Order of 06/26/12. Text Only Entry (jjhsl, ) (Entered: 06/26/2012)
22 Joint MOTION to Amend/Correct/Modify 20 Minute Order, by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 06/28/2012)
23 Minute ORDER granting 22 Joint Motion to Amend Briefing Schedule. Defendants must answer or otherwise respond to Plaintiffs' First Amended Complaint and file an amended brief in response to Plaintiffs' Motion for Preliminary Injunction no later than 7/13/12. Plaintiffs reply in support of their Motion for Preliminary Injunction must be filed no later than 7/20/12, by Judge John L. Kane on 6/28/12.(lygsl, ) (Entered: 06/28/2012)

Case: 1:12-cv-1123 As of: 04/10/2016 07:04 PM MDT 7 of 11

07/11/2012 07/13/2012 07/13/2012 07/17/2012 07/20/2012 07/25/2012 07/27/2012 07/30/2012 07/30/2012 07/30/2012 08/01/2012
08/02/2012 08/03/2012 08/03/2012

24 MINUTE ORDER Setting Oral Argument for 7/25/2012 01:30 PM in Courtroom A 802 before Judge John L. Kane by Judge John L. Kane on 07/11/12. (jjhsl, ) (Entered: 07/11/2012)
25 MOTION to Dismiss the First Amended Complaint by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Attachments: # 1 Memorandum in Support)(Bennett, Michelle) (Entered: 07/13/2012)
26 BRIEF in Opposition to 5 MOTION for Preliminary Injunction filed by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 07/13/2012)
27 REPLY to Response to 5 MOTION for Preliminary Injunction filed by Plaintiffs Hercules Industries, Inc., Christine Ketterhagen, Andrew Newland, James Newland, Paul Newland, William Newland. (Bowman, Matthew) (Entered: 07/17/2012)
28 NOTICE of Change of Address/Contact Information / Firm Name of Attorneys for Plaintiffs by Matthew Scott Bowman (Bowman, Matthew) (Entered: 07/20/2012)
29 MINUTE ENTRY for Oral Argument Hearing proceedings held before Judge John L. Kane on 7/25/2012. Taking under advisement 5 Motion for Preliminary Injunction. Court Reporter: Janet Coppock. (babia) (Entered: 07/25/2012)
30 ORDER granting 5 Motion for Preliminary Injunction, by Judge John L. Kane on 7/27/12.(sgrim) (Entered: 07/27/2012)
31 NOTICE of anticipated briefing schedule amendment, by Plaintiffs Hercules Industries, Inc., Christine Ketterhagen, Andrew Newland, James Newland, Paul Newland, William Newland (Bowman, Matthew) (Entered: 07/30/2012)
32 BOND FOR PRELIMINARY INJUNCTION posted by Plaintiffs Hercules Industries, Inc., Christine Ketterhagen, Andrew Newland, James Newland, Paul Newland, William Newland. (Norton, Michael) (Entered: 07/30/2012)
33 RECEIPT for $100.00 re: 30 Order on Motion for Preliminary Injunction, by Plaintiffs Hercules Industries, Inc., Christine Ketterhagen, Andrew Newland, James Newland, Paul Newland, William Newland. (sgrim) (Entered: 07/30/2012)
34 TRANSCRIPT of Hearing on Motion for Preliminary Injunction held on July 25, 2012 before Judge John L. Kane. Pages: 1−53. <P> NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.</P> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 11/2/2012. (Coppock, Janet) (Entered: 08/01/2012)
35 RESPONSE to 31 Notice (Other) by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 08/02/2012)
36 Joint MOTION for Order to set briefing schedule for defendants' motion to dismiss by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 08/03/2012)
37 ORDER granting Joint Motion 36 to Set Briefing Schedule for Defendants' Motion to Dismiss 16 . Plaintiffs' Response to the Motion to Dismiss is due on or before

Case: 1:12-cv-1123 As of: 04/10/2016 07:04 PM MDT 8 of 11

08/17/2012 08/17/2012 08/30/2012 09/11/2012 09/12/2012 09/25/2012 09/26/2012
09/26/2012 10/03/2012 10/04/2012 10/09/2012 10/09/2012

August 31, 2012; Defendants' Reply is due on or before September 19, 2012, by Judge John L. Kane on 8/3/12. Text Only Entry(sgrim) (Entered: 08/03/2012)
38 Joint MOTION for Extension of Time to file Joint Case Management Plan by Plaintiffs Hercules Industries, Inc., Christine Ketterhagen, Andrew Newland, James Newland, Paul Newland, William Newland. (Attachments: # 1 Proposed Order (PDF Only))(Bowman, Matthew) (Entered: 08/17/2012)
39 ORDER granting 38 Motion for Extension of Time. The August 27, 2012 deadline for filing a Joint Case Management Plan is VACATED. The parties shall file their Joint Case Management Plan on or before October 26, 2012, by Judge John L. Kane on 8/17/12.(sgrim) (Entered: 08/17/2012)
40 RESPONSE to 25 MOTION to Dismiss the First Amended Complaint filed by Plaintiffs Hercules Industries, Inc., Christine Ketterhagen, Andrew Newland, James Newland, Paul Newland, William Newland. (Bowman, Matthew) (Entered: 08/30/2012)
41 Unopposed MOTION for Extension of Time to File Response/Reply as to 25 MOTION to Dismiss the First Amended Complaint by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 09/11/2012)
42 MINUTE ORDER. Defendants' Unopposed MOTION for An Extension of Time to File Reply Brief 41 is GRANTED. The deadline for Defendants' reply brief is hereby extended to October 3, 2012, by Judge John L. Kane on 9/12/12. Text Only Entry(sgrim) (Entered: 09/12/2012)
43 NOTICE OF APPEAL as to 30 Order on Motion for Preliminary Injunction by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Bennett, Michelle) (Entered: 09/25/2012)
44 LETTER Transmitting Notice of Appeal to all counsel advising of the transmittal of the 43 Notice of Appeal, filed by Kathleen Sebelius, Hilda Solis, Timothy Geithner, United States Department of Health and Human Services, United States Department of the Treasury, United States Department of Labor to the U.S. Court of Appeals. ( Retained Counsel USA) (Attachments: # 1 Docket Sheet, # 2 Preliminary Record)(lswsl ) (Entered: 09/26/2012)
45 USCA Case Number 12−1380 for 43 Notice of Appeal, filed by Kathleen Sebelius, Hilda Solis, Timothy Geithner, United States Department of Health and Human Services, United States Department of the Treasury, United States Department of Labor. (lswsl ) (Entered: 09/26/2012)
46 REPLY to Response to 25 MOTION to Dismiss the First Amended Complaint filed by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Attachments: # 1 O'Brien opinion)(Bennett, Michelle) (Entered: 10/03/2012)
47 NOTICE of Supplemental Authorities re: 40 Response to Motion by Plaintiffs Hercules Industries, Inc., Christine Ketterhagen, Andrew Newland, James Newland, Paul Newland, William Newland (Attachments: # 1 Exhibit O'Brien opinion)(Bowman, Matthew) (Entered: 10/04/2012)
48 TRANSCRIPT ORDER FORM re 43 Notice of Appeal, by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Bennett, Michelle) (Entered: 10/09/2012)
49 LETTER TO USCA and all counsel certifying the record is complete as to 43 Notice of Appeal, filed by Kathleen Sebelius, Hilda Solis, Timothy Geithner, United States Department of Health and Human Services, United States Department of the Treasury, United States Department of Labor. A transcript order form was filed stating that the necessary transcript is already on file. ( Appeal No.

Case: 1:12-cv-1123 As of: 04/10/2016 07:04 PM MDT 9 of 11

10/11/2012 10/11/2012 10/11/2012 10/18/2012 10/18/2012 10/25/2012 10/25/2012 10/26/2012 10/03/2013
11/25/2013 01/31/2014

12−1380) Text Only Entry (lswsl ) (Entered: 10/10/2012)
50 Joint MOTION to Continue Deadline for Case Management Plan Filing by Plaintiffs Hercules Industries, Inc., Christine Ketterhagen, Andrew Newland, James Newland, Paul Newland, William Newland. (Attachments: # 1 Proposed Order (PDF Only) Proposed Order)(Bowman, Matthew) (Entered: 10/11/2012)
51 MOTION to Stay Proceedings Pending Appeal by Plaintiffs Hercules Industries, Inc., Christine Ketterhagen, Andrew Newland, James Newland, Paul Newland, William Newland. (Attachments: # 1 Proposed Order (PDF Only) Proposed Order)(Bowman, Matthew) (Entered: 10/11/2012)
52 MOTION to Continue case management plan deadline by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Attachments: # 1 Proposed Order (PDF Only))(Bennett, Michelle) (Entered: 10/11/2012)
53 BRIEF in Opposition to 51 MOTION to Stay Proceedings Pending Appeal filed by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Attachments: # 1 Exhibit A)(Bennett, Michelle) (Entered: 10/18/2012)
54 REPLY to Response to 52 MOTION to Continue case management plan deadline filed by Plaintiffs Hercules Industries, Inc., Christine Ketterhagen, Andrew Newland, James Newland, Paul Newland, William Newland. (Bowman, Matthew) (Entered: 10/18/2012)
55 ORDER re 50 Motion to Continue. The parties' Joint Motion to Temporarily Continue Deadline for Case Management Plan Filing (Doc. 50) is GRANTED until further order of the court pending resolution of the parties' separate motions to stay (Doc. 51) and to continue (Doc. 52), by Judge John L. Kane on 10/25/12. Text Only Entry(jlksec) (Entered: 10/25/2012)
56 NOTICE of Additional Filings in the Court of Appeals for the Tenth Circuit by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Attachments: # 1 Exhibit A − Defs.' Corrected Motion, # 2 Exhibit B − Pls.' Opposition, # 3 Exhibit C − Defs.' Reply)(Bennett, Michelle) (Entered: 10/25/2012)
57 ORDER. Plaintiffs' Opposed Motion to Stay Proceedings Pending Appeal 51 is GRANTED and this case is STAYED until the Tenth Circuit issues its ruling or until further order of this Court. Defendants' Opposed Motion to Continue the October 26, 2012 Case Management [Scheduling] Plan Deadline until after the Court Rules on the Motion to Dismiss 52 is DENIED as MOOT, by Judge John L. Kane on 10/26/12.(sgrim) (Entered: 10/26/2012)
58 ORDER of USCA as to 43 Notice of Appeal, filed by Kathleen Sebelius, Hilda Solis, Timothy Geithner, United States Department of Health and Human Services, United States Department of the Treasury, United States Department of Labor. We affirm and remand to the district court.Given the pending petition for certiorari before the Supreme Court in Hobby Lobby, the district court is instructed to abate further proceedings until the Supreme Court completes its consideration of the Hobby Lobby case. At that time, the abatement may be lifted and the court may undertake all proceedings necessary to resolve the issues remaining before it. Finally, appellees' motion to hear this matter with the Hobby Lobby proceeding is denied as moot. (USCA Case No. 12−1380) (dbrow, ) (Entered: 11/26/2013)
59 MANDATE of USCA as to 43 Notice of Appeal, filed by Kathleen Sebelius, Hilda Solis, Timothy Geithner, United States Department of Health and Human Services, United States Department of the Treasury, United States Department of Labor : (USCA Case No. 12−1380) (dbrow, ) (Entered: 11/26/2013)
60 Supreme Court LETTER re 43 Notice of Appeal, filed by Kathleen Sebelius, Hilda Solis, Timothy Geithner, United States Department of Health and Human Services,

Case: 1:12-cv-1123 As of: 04/10/2016 07:04 PM MDT 10 of 11

06/30/2014 07/01/2014
07/21/2014 07/21/2014
08/22/2014 08/22/2014 08/27/2014
09/03/2014 09/22/2014 03/16/2015 03/17/2015 04/24/2015 04/24/2015

United States Department of the Treasury, United States Department of Labor. The petition for a writ of certiorari in the above entitled case was filed on January 31, 2014 and placed on the docket January 31, 2014 as No. 13−919. (USCA Case No. 12−1380) (dbrow, ) (Entered: 02/03/2014)
61 Order for Status Report. Hobby Lobby having been decided by the United States Supreme Court on June 30, 2014, this matter is no longer stayed. Parties are ordered to confer and submit jointly a Status Report on or before July 21, 2014 by Judge John L. Kane on 06/30/14. (jhawk, ) (Entered: 06/30/2014)
62 Supreme Court LETTER re 43 Notice of Appeal, filed by Kathleen Sebelius, Hilda Solis, Timothy Geithner, United States Department of Health and Human Services, United States Department of the Treasury, United States Department of Labor. The petition for a writ of certiorari is denied. (USCA Case No. 12−1380) (dbrow, ) (Entered: 07/01/2014)
63 Joint STATUS REPORT by Plaintiffs Hercules Industries, Inc., Christine Ketterhagen, Andrew Newland, James Newland, Paul Newland, William Newland. (Bowman, Matthew) (Entered: 07/21/2014)
64 MINUTE ORDER re: 63 Joint Status Report. Defendants' Request for thirty days to determine how they wish to proceed is granted. Defendants shall advise the court and opposing counsel of its decision about how to proceed on or before 8/22/2014. Status Report due by 8/22/2014, by Judge John L. Kane on 7/21/14. Text Only Entry (jlksec) (Entered: 07/21/2014)
65 STATUS REPORT by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 08/22/2014)
66 RESPONSE to 65 Status Report by Plaintiffs Hercules Industries, Inc., Christine Ketterhagen, Andrew Newland, James Newland, Paul Newland, William Newland. (Bowman, Matthew) (Entered: 08/22/2014)
67 MINUTE ORDER re: 65 Status Report. Defendants' Request for an additional thirty days to submit what the Court hopes is a JOINT proposal for proceeding in this case is GRANTED. The proposal is due ON OR BEFORE September 22, 2014. It is FURTHER ORDERED that Defendants shall provide this court with a copy of any proposal/status report it files in the Hobby Lobby case in accordance with the Tenth Circuit's September 5, 2014 deadline, by Judge John L. Kane on 8/27/14. Text Only Entry (jlksec) (Entered: 08/27/2014)
68 NOTICE re 67 Minute Order,, by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Attachments: # 1 Attachment)(Bennett, Michelle) (Entered: 09/03/2014)
69 Joint STATUS REPORT by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 09/22/2014)
70 PERMANENT INJUNCTION by Judge John L. Kane on 3/16/2015. (Attachments: # 1 Memorandum, # 2 Order) (babia) (Entered: 03/16/2015)
71 FINAL JUDGMENT by Clerk by Judge John L. Kane on 3/17/2015. (babia) (Entered: 03/17/2015)
72 Unopposed MOTION for Release of Funds , $100 security bond from preliminary injunction, by Plaintiffs Hercules Industries, Inc., Christine Ketterhagen, Andrew Newland, James Newland, Paul Newland, William Newland. (Attachments: # 1 Proposed Order (PDF Only))(Bowman, Matthew) (Entered: 04/24/2015)
73 ORDER GRANTING Plaintiffs' Unopposed Motion to Release Security Bond from Preliminary Injunction (Doc. 72). The Clerk is directed to release Plaintiffs' $100 security bond to Plaintiffs or their counsel. Entered by Judge John L. Kane on 02/24/15. Text Only Entry(jhawk, ) (Entered: 04/24/2015)

Case: 1:12-cv-1123 As of: 04/10/2016 07:04 PM MDT 11 of 11

04/29/2015

74 NOTICE of Settlement of Attorneys' Fees and Costs by Plaintiffs Hercules Industries, Inc., Christine Ketterhagen, Andrew Newland, James Newland, Paul Newland, William Newland (Bowman, Matthew) (Entered: 04/29/2015)

 
 http://www.supremecourt.gov/orders/courtorders/070114zr_eeam.pdf, redacted to include only Hobby Lobby related orders

(ORDER LIST: 573 U. S.)

TUESDAY, JULY 1, 2014

CERTIORARI -- SUMMARY DISPOSITIONS

13-482 13-567

AUTOCAM CORPORATION, ET AL. V. BURWELL, SEC. OF H&HS, ET AL. The petition for a writ of certiorari is granted. The
judgment is vacated, and the case is remanded to the United States Court of Appeals for the Sixth Circuit For further consideration in light of Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___ (2014). GILARDI, FRANCIS A., ET AL. V. DEPT. OF H&HS, ET AL.
The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the District of Columbia Circuit For
further consideration in light of Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___ (2014).

1

13-591

EDEN FOODS, INC., ET AL. V. BURWELL, SEC. OF H&HS, ET AL. The petition for a writ of certiorari is granted. The
judgment is vacated, and the case is remanded to the United States Court of Appeals for the Sixth Circuit For further consideration in light of Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___ (2014).

2

CERTIORARI DENIED

13-915 13-919 13-937

DEPT. OF H&HS, ET AL. V. GILARDI, FRANCIS A., ET AL. BURWELL, SEC. OF H&HS, ET AL. V. NEWLAND, WILLIAM, ET AL. BURWELL, SEC. OF H&HS, ET AL. V. KORTE, CYRIL B., ET AL.
The petitions for writs of certiorari are denied.

4