2:12-cv-12061-RHC-MJH Doc # 1 Filed 05/07/12 Pg 1 of 42 Pg ID 1

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

LEGATUS; WEINGARTZ SUPPLY COMPANY; and DANIEL WEINGARTZ, President of Weingartz Supply Company,
Plaintiffs,
v.
KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; HILDA SOLIS, Secretary of the United States Department of Labor; UNITED STATES DEPARTMENT OF LABOR; TIMOTHY GEITHNER, Secretary of the United States Department of the Treasury; and UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants.
__________________________________________/
THOMAS MORE LAW CENTER Richard Thompson, Esq. (P21410) Erin Mersino, Esq. (P70886) 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, MI 48106 emersino@thomasmore.org (734) 827-2001
LAW OFFICE OF CHARLES S. LIMANDRI, APC Charles S. LiMandri, Esq. (CA Bar No. 110841) Teresa Mendoza, Esq. (CA Bar No. 185820) P.O. Box 9120 Rancho Santa Fe, CA 92067 Tel (858) 759-9930 __________________________________________/

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

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COMPLAINT Comes now Plaintiffs Legatus, Weingartz Supply Company, and Daniel Weingartz (collectively “Plaintiffs”), by and through undersigned counsel, bring this Complaint against the above-named Defendants, their employees, agents, and successors in office, and in support thereof state the following upon information and belief:
NATURE OF THE ACTION 1. This is a case about religious freedom. Thomas Jefferson, a Founding Father of our country, principal author of the Declaration of Independence, and our third president, when describing the construct of our Constitution proclaimed, “No provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority.” Letter from Thomas Jefferson, United States Office of the President, to the Soc’y of the Methodist Episcopal Church at New London, Conn. (Feb. 4, 1809) cited in People v. Dejonge, 442 Mich. 266, 278 (1993) (emphasis added). 2. This is a challenge to regulations ostensibly issued under the “Patient Protection and Affordable Care Act” (Pub. L. 111-148, March 23, 2010, 124 Stat. 119) and the “Health Care and Education Reconciliation Act” (Pub. L. 111-152, March 30, 2010, 124 Stat. 1029) (collectively known and hereinafter referred to as the “Affordable Care Act”) that force individuals to violate their deepest held religious beliefs. 3. The Affordable Care Act, through a Mandate from the United States Department of Health and Human Services, attacks and desecrates a foremost tenet of the Catholic Church, as stated by Pope Paul VI in His 1968 encyclical Humanae Vitae, that “any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation, whether as an end or as a means”—including contraception, abortion, and abortifacients—is a grave sin.
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4. One of the provisions of the Affordable Care Act mandates that health plans “provide coverage for and shall not impose any cost sharing requirements for . . . with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration” and directs the Secretary of the United States Department of Health and Human Services to determine what would constitute “preventative care” under the mandate. 42 U.S.C § 300gg–13(a)(4).
5. Without notice of rulemaking or opportunity for public comment, the United States Department of Health and Human Services, the United States Department of Labor, and the United States Department of Treasury adopted the Institute of Medicine (“IOM”) recommendations in full and promulgated an interim final rule (“the Mandate”), which requires that all “group health plan[s] and . . . health insurance issuer[s] offering group or individual health insurance coverage” provide all FDA-approved contraceptive methods and procedures. 76 Fed. Reg. 46621 (published Aug. 3, 2011); 45 C.F.R. § 147.130.
6. The Mandate requires all insurance issuers (e.g. Blue Cross/Blue Shield of Michigan) to provide contraception, abortion, and abortifacients in all of its insurance plans, group and individual.
7. Health Resources and Services Administration also issued guidelines adopting the IOM recommendations. (http://www.hrsa.gov/womensguidelines).
8. Under the IOM guidelines, the Mandate requires all insurance insurers to provide not only contraception, but also abortion, because certain drugs and devices such as the “morning-after pill,” “Plan B,” and “ella” come within the Mandate’s and Health Resources and Services Administration’s definition of “Food and Drug Administration-approved contraceptive methods” despite their known abortifacient mechanisms of action.
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9. The Mandate forces employers and individuals to violate their religious beliefs because it requires employers and individuals to pay for insurance from insurance issuers which fund and directly provide for drugs, devices, and services which violate their deeply held religious beliefs.
10. Since under the Mandate all insurance issuers must provide what the United States Department of Health and Human Services has deemed “preventative care,” employers and individuals are stripped of any choice between insurance issuers or insurance plans to avoid violating their religious beliefs.
11. The United States Department of Health and Human Services in an unprecedented despoiling of religious rights forces religious employers and individuals, who believe that funding and providing for contraception, abortion, and abortifacients is wrong, to participate in acts that violate their beliefs and their conscience—and are forced out of the health insurance market in its entirety in order to comply with their religious beliefs.
12. Plaintiffs seek a Preliminary Injunction and Permanent Injunction, enjoining Defendants from implementing and enforcing provisions of the regulations promulgated under the Affordable Care Act, specifically the Mandate. The Mandate violates Plaintiffs’ rights to the free exercise of religion and the freedom of speech under the First Amendment to the United States Constitution, the Religious Freedom Restoration Act, and the Administrative Procedure Act.
13. Plaintiffs also seek a Declaratory Judgment that the regulations promulgated under the Affordable Care Act, specifically the Mandate, violate Plaintiffs’ rights to the free exercise of religion and the freedom of speech under the First Amendment to the United States Constitution, the Religious Freedom Restoration Act, and the Administrative Procedure Act.
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14. The Affordable Care Act’s contraception, abortion, and abortifacient mandate violates the rights of Plaintiff Legatus as a Catholic organization, and the individuals that comprise Legatus, such as its employees and its over 4,000 members comprised of devoutly Catholic business persons and their spouses from over 2,100 Catholic-run companies in the United States.
15. The majority of the 2,100 companies that comprise Legatus have over 50 or more full-time employees and are subject to monetary penalties under the Affordable Care Act and are forced under the Mandate to conduct business in a manner that violates their religious faith.
16. Plaintiff Daniel Weingartz is an active member of Legatus and is the President of Plaintiff Weingartz Supply Company, a company with over 50 full-time employees required to provide health insurance under the Affordable Care Act under penalty of heavy fines and therefore forced under the Mandate to provide and fund contraceptives, abortion, and abortifacients, which violates his deeply held religious beliefs.
17. Plaintiffs bring this action to vindicate not only their own rights, but also to protect the rights of all Americans who care about our Constitutional guarantees of free exercise of religion and their freedom of speech, as well as the protection of innocent human life.
JURISDICTION AND VENUE 18. This action in which the United States is a defendant arises under the Constitution and laws of the United States. Jurisdiction is conferred on this Court pursuant to 28 U.S.C. §§ 1331 and 1346. 19. Plaintiffs’ claims for declaratory and preliminary and permanent injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202, by Rules 57 and 65 of the Federal Rules of Civil Procedure, by 28 U.S.C. § 2000bb-1, and by the general legal and equitable powers of this Court.
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20. Venue is proper under 28 U.S.C. § 1391(e) because this is the judicial district in which Plaintiffs are located.
PLAINTIFFS 21. Plaintiff Legatus is an organization incorporated under the laws of the State of Michigan. 22. Plaintiff Legatus is registered at One Ave Maria Drive, Ann Arbor, MI 48106. 23. Plaintiff Legatus is recognized by the Internal Revenue Service as a 501(c)(3), non-profit organization. 24. “Legatus” is the Latin word for ambassador, and Plaintiff Legatus is a Catholic organization which provides “for its members to become ambassadors for the Catholic Faith they share in common.” (http://www.legatus.org/). 25. The mission of Legatus is “[t]o study, live and spread the Catholic faith in our business, professional and personal lives.” (http://www.legatus.org/). 26. Plaintiff Legatus “is an international organization of practicing Catholic laymen and laywomen, comprised of Chief Executive Officers, Presidents, Managing Partners and Business Owners, with their spouses, from the business community and professional enterprises.” Legatus Amended and Restated International Bylaws § 2.1. 27. Plaintiff Legatus is comprised of over 4,000 members, including 2,124 dues paying members and their member spouses. 28. Plaintiff Legatus has a total of 73 chapters in the United States located in 31 states with 3 international chapters. 29. Plaintiff Legatus has three chapters located in Southeastern Michigan, including chapters located in the cities of Detroit and Ann Arbor.
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30. The members of Legatus join the organization with purpose of deepening and strengthening their Catholic faith. Legatus nurtures spiritual growth in its members’ Catholic beliefs by fostering a stronger relationship with Jesus Christ and by educating its members in the teachings of the Catholic Church.
31. Plaintiff Legatus, its employees, and its members follow the teachings of the Catholic faith as defined by the Magisterium (teaching authority) of the Catholic Church. Plaintiffs carry and live out their religious beliefs daily by helping and assisting their members follow the teachings of the Catholic Church and strengthen their faith.
32. The members of Legatus share religious beliefs that forbid them from participating in, paying for, training others to engage in, or otherwise supporting contraception, abortion, and abortifacients.
33. Plaintiff Legatus and its members follow with devotion the teachings and the tenets of the Catholic Church.
34. Furthermore, Plaintiff Legatus provides education to its members pertaining to the teachings and tenets of the Catholic Faith.
35. Prior to the issuance of the Mandate, Plaintiff Legatus engineered an insurance policy with Blue Cross/Blue Shield of Michigan and through the Ave Maria Foundation located in Ann Arbor, Michigan which specifically excluded contraception, abortion, and abortifacients, and exempts Plaintiff from paying, contributing, or supporting contraception and abortion for others.
36. Plaintiff Legatus obtained these exclusions due to the deeply held religious beliefs of its members and to comply with the organization’s mission and purpose.
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37. Plaintiff Legatus’ employees receive insurance under this engineered insurance policy with Blue Cross/Blue Shield of Michigan which specifically excluded contraception, abortion, and abortifacients, and exempts Plaintiff from paying, contributing, or supporting contraception and abortion for others.
38. Plaintiff Weingartz Supply Company is incorporated in the State of Michigan and under the laws of the State of Michigan.
39. Plaintiff Weingartz Supply Company is located at 46061 Van Dyke, Utica, Michigan, 48371, with five locations in the Metro Detroit area including Ann Arbor, Michigan.
40. Plaintiff Daniel Weingartz is an individual and a citizen of the State of Michigan and the United States.
41. Plaintiff Daniel Weingartz is the President of Weingartz Supply Company. He is responsible for setting all policies governing the conduct of all phases of business of Weingartz Supply Company, its subsidiaries, and the Weingartz family companies.
42. Plaintiff Daniel Weingartz is an active member of Legatus. 43. Plaintiff Daniel Weingartz holds religious beliefs which forbid him from participating in, paying for, training others to engage in, or otherwise supporting contraception, and abortion. 44. Plaintiff Weingartz Supply Company, its subsidiaries, and the Weingartz family companies are secular companies led by Plaintiff Daniel Weingartz, who is a devout Catholic. 45. Plaintiff Daniel Weingartz through his company Plaintiff Weingartz Supply Company engineered an insurance policy with Blue Cross/Blue Shield of Michigan which specifically excluded contraception, and abortion and exempts Plaintiff from paying, contributing, or supporting contraception, or abortion for others.
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46. Plaintiff Daniel Weingartz and his company Plaintiff Weingartz Supply Company ensured that their insurance policy contained these exclusions to reflect their deeply held religious beliefs.
47. Based on the teachings of the Catholic Church, and their deeply held religious beliefs, Plaintiffs do not believe that contraception, or abortion are properly understood to constitute medicine, health care, or a means of providing for the well being of persons. Indeed, Plaintiffs believe these procedures involve gravely immoral practices, specifically the intentional destruction of innocent human life.
DEFENDANTS 48. Defendants are appointed officials of the United States government and United States governmental agencies responsible for issuing the Mandate. 49. Defendant Kathleen Sebelius is the Secretary of the United States Department of Health and Human Services (“HHS”). In this capacity, she has responsibility for the operation and management of HHS. Defendant Sebelius is sued in her official capacity only. 50. Defendant HHS is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the regulation which is the subject of this lawsuit. 51. Defendant Hilda Solis is the Secretary of the United States Department of Labor. In this capacity, she holds responsibility for the operation and management of the United States Department of Labor. Defendant Solis is sued in her official capacity only. 52. Defendant United States Department of Labor is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the regulation which is the subject of this lawsuit.
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53. Defendant Timothy Geithner is the Secretary of the United States Department of the Treasury. In this capacity, he holds responsibility for the operation and management of the United States Department of Treasury. Defendant Geithner is sued in his official capacity only.
54. Defendant United States Department of Treasury is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the regulation which is the subject of this lawsuit.
FACTUAL ALLEGATIONS Plaintiffs’ Religious Beliefs
55. Plaintiffs hold and actively profess religious beliefs in accordance with the traditional Christian teachings on the sanctity of life. Plaintiffs believe that each human being bears the image and likeness of God, and therefore that all human life is sacred and precious, from the moment of conception. Plaintiffs therefore believe that abortion ends a human life and is a grave sin.
56. Plaintiffs’ religious beliefs also include traditional Christian teaching on the nature and purpose of human sexuality. In particular, Plaintiffs believe, in accordance with Pope Paul VI’s 1968 encyclical Humanae Vitae, that human sexuality has two primary purposes: to “most closely unit[e] husband and wife” and “for the generation of new lives.” Accordingly, Plaintiffs believe and actively profess, with the Catholic Church, that “[t]o use this divine gift destroying, even if only partially, its meaning and its purpose is to contradict the nature both of man and of woman and of their most intimate relationship, and therefore it is to contradict also the plan of God and His Will.” Therefore, Plaintiffs believe and teach that “any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation, whether as an end or as a means”—including contraception—is a grave sin.
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57. Furthermore, Plaintiffs subscribe to authoritative Catholic teaching about the proper nature and aims of health care and medical treatment. For instance, Plaintiffs believe, in accordance with Pope John Paul II’s 1995 encyclical Evangelium Vitae, that “‘[c]ausing death’ can never be considered a form of medical treatment,” but rather “runs completely counter to the health-care profession, which is meant to be an impassioned and unflinching affirmation of life.”
58. Recently, several leaders within the Catholic Church have publicly spoken out about how the Mandate is a direct violation of Catholic Faith.
59. Cardinal Timothy Dolan, Archbishop of New York and President of the United States Conference of Catholic Bishops wrote, “Since January 20 [2012], when the final, restrictive HHS Rule was first announced, we have become certain of two things: religious freedom is under attack, and we will not cease our struggle to protect it. We recall the words of our Holy Father Benedict XVI to our brother bishops on their recent ad limina visit: ‘Of particular concern are certain attempts being made to limit that most cherished of American freedoms, the freedom of religion.’ We have made it clear in no uncertain terms to the government that we are not at peace with its invasive attempt to curtail the religious freedom we cherish as Catholics and Americans.” (http://www.usccb.org., March 2, 2012).
60. Archbishop Charles J. Chaput, the Archbishop of Philadelphia, has expressed that the Affordable Care Act and the Mandate seek “to coerce Catholic employers, private and corporate, to violate their religious convictions . . . [t]he HHS mandate, including its latest variant, is belligerent, unnecessary, and deeply offensive to the content of Catholic belief . . . The HHS mandate needs to be rescinded. In reality, no similarly aggressive attack on religious freedom in our country has occurred in recent memory . . . [t]he HHS mandate is bad law; and not merely bad, but dangerous and insulting. It needs to be withdrawn—now.” (http://the-
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american-catholic.com/2012/02/14/archbishop-chaput-hhs-mandate-dangerous-and-insulting/, Feb. 14, 2012). Plaintiff Legatus
61. Plaintiff Legatus, a Catholic organization which adheres to the teachings of the Catholic Church, has 17 full-time employees and 52 part-time employees.
62. Plaintiff Legatus is composed of over 4,000 members and Catholic business persons and their spouses who represent over 2,100 companies, many companies being comprised of 50 or more full-time employees.
63. Plaintiff Legatus purchases group insurance through insurance issuer Blue Cross/Blue Shield of Michigan and provides this insurance to its full-time employees.
64. Plaintiff Legatus has striven over the years to provide its employees with employee health coverage superior to coverage generally available in the Michigan market in order to be a competitive employer.
65. Plaintiff Legatus specifically designed a health insurance plan with Blue Cross/Blue Shield of Michigan to exclude contraception, abortion, and abortifacients in line with the religious beliefs of the members of Legatus and in line with the mission of Legatus, a Catholic organization.
66. Moreover, as part of its religious commitment to the authoritative teachings of the Catholic Church, Plaintiff educates its members about the teachings of the Catholic Church and steadfastly avoid practices that subvert the teaching of the Catholic Church such as providing or funding drugs, devices, services or procedures inconsistent with its faith.
67. Plaintiff Legatus has taken great pains through the years to ensure that its employees’ insurance plans do not cover contraception or abortion.
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68. Plaintiff Legatus cannot provide, fund, or participate in health care insurance which covers artificial contraception, abortion, or abortifacients, or related education and counseling, without violating its deeply held religious beliefs.
69. Plaintiff Legatus cannot provide information or guidance to its employees or its members regarding artificial contraception, abortion, abortifacients or related education and counseling, without violating their deeply held religious beliefs.
70. Plaintiff Legatus exists through its members, such as Plaintiff Daniel Weingartz, who seek advice regarding business practices in compliance with their religious views. Pursuant to Plaintiff Legatus’ mission, Plaintiff Legatus will continue to adhere to, disseminate, and report reliable Catholic teachings on morality and practices in its business dealings and in its advice to employees and members, as its Mission Statement has declared since its inception. Plaintiffs Weingartz Supply Company and Daniel Weingartz, President of Weingartz Supply Company
71. Plaintiff Daniel Weingartz, the President of Plaintiff Weingartz Supply Company, is an active member of Plaintiff Legatus.
72. As a member of Legatus, Plaintiff Daniel Weingartz is an ambassador of the Catholic Faith and follows the teachings of the Catholic Church.
73. Plaintiff Weingartz Supply Company, along with W & P Management LLC and its subsidiaries employ a total of 170 employees including 60 part-time employees.
74. Plaintiff Weingartz Supply Company and its subsidiary companies are family owned and operated and have been for the last 65 years.
75. Plaintiff Weingartz Supply Company and its subsidiaries are for-profit, secular companies.
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76. Plaintiff Daniel Weingartz and Plaintiff Weingartz Supply Company and its subsidiaries share a common mission of conducting their business operations with integrity.
77. Plaintiff Daniel Weingartz and Plaintiff Weingartz Supply Company adhere to fair, ethical, and honest business practices with both its employees and its valued customers.
78. Plaintiff Daniel Weingartz and Plaintiff Weingartz Supply Company follow the teachings, mission, and values of the Catholic faith.
79. Plaintiff Daniel Weingartz and Plaintiff Weingartz Supply Company does not discriminate against anyone’s personal belief system in their hiring process, and would not base a hiring decision upon an applicant’s religious or personal beliefs.
80. Plaintiff Daniel Weingartz and Plaintiff Weingartz Supply Company purchase group insurance through its subsidiary W & P Management, LLC through insurance agent Brown & Brown Detroit and insurance issuer Blue Cross/Blue Shield of Michigan, and currently provide this insurance to its full-time employees.
81. Plaintiff Daniel Weingartz and Plaintiff Weingartz Supply Company have striven over the years to provide its employees with employee health coverage superior to coverage generally available in the Michigan market in order to be a competitive employer.
82. Plaintiff Daniel Weingartz and Plaintiff Weingartz Supply Company specifically designed a health insurance plan with Blue Cross/Blue Shield of Michigan to exclude contraception, abortion, and abortifacients in line with the religious beliefs of Plaintiff Daniel Weingartz, the Weingartz family, the mission of the Catholic Church, and Legatus, a Catholic organization to which Plaintiff Daniel Weingartz belongs.
83. As part of their religious commitment to the authoritative teachings of the Catholic Church, Plaintiff Daniel Weingartz and Plaintiff Weingartz Supply Company
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steadfastly avoid practices that subvert the teaching of the Catholic Church such as providing or funding drugs, devices, services or procedures inconsistent with their faith.
84. Plaintiff Daniel Weingartz and Plaintiff Weingartz Supply Company have taken great pains through the years to ensure that its employees’ insurance plans do not cover contraception, abortion, or abortifacients.
85. Plaintiff Daniel Weingartz and Plaintiff Weingartz Supply Company cannot provide, fund, or participate in health care insurance which covers artificial contraception, abortion, or abortifacients, or related education and counseling, without violating their deeply held religious beliefs.
86. Plaintiff Daniel Weingartz and Plaintiff Weingartz Supply Company cannot provide information or guidance to its employees regarding artificial contraception, abortion, abortifacients or related education and counseling, without violating their deeply held religious beliefs.
87. With full knowledge of these aforementioned beliefs, Defendants issued an administrative rule (“the Mandate”) that runs roughshod over Plaintiffs’ religious beliefs, and the beliefs of millions of other Americans.
88. The Mandate not only forces Plaintiffs to finance contraception, abortion, and related education and counseling as health care, but also subverts the expression of Plaintiffs’ religious beliefs, and the beliefs of millions of other Americans, by forcing Plaintiffs to fund, promote, and assist others to acquire services which Plaintiffs believe involve gravely immoral practices, including the destruction of innocent human life.
89. The Mandate unconstitutionally coerces Plaintiffs to violate their deeply-held religious beliefs under threat of directly violating their consciences, in addition to any imposed
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fines and penalties. The Mandate also forces Plaintiffs to fund government-dictated speech that is directly at odds with their own speech and religious beliefs. Having to pay a fine to the taxing authorities or being entirely forced out of the insurance market in order to ensure the privilege of practicing one’s religion or controlling one’s own speech substantially burdens Plaintiffs’ religious liberty and freedom of speech under the First Amendment.
90. The Mandate strips the Plaintiffs of any choice to select an insurance plan that does not cover and finance contraception, abortion, and abortifacients, as the Mandate requires that all insurance insurers provide this coverage.
91. None of the Plaintiffs have plans that are considered “grandfathered” and will be subject to the provisions of the Mandate.
92. Blue Cross/Blue Shield of Michigan deemed that due to the Mandate, Plaintiff Legatus will no longer be allowed to exclude contraception, abortion, and abortifacients from their insurance plans—and will be forced to provide and pay for these services which violate its religious beliefs.
93. Blue Cross/Blue Shield of Michigan deemed that due to the Mandate, Plaintiff Daniel Weingartz and Plaintiff Weingartz Supply Company will no longer be allowed to exclude contraception, abortion, and abortifacients from their insurance plans—and will be forced to provide and pay for these services which violate their religious beliefs.
94. Plaintiffs wish to conduct their business in a manner that does not violate the principles of their religious faith.
95. Plaintiff Legatus additionally seeks for the members of Legatus to be able to conduct their respective businesses in a manner that does not violate the principles of the religious faith of its over 4,000 members.
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96. Complying with the Mandate requires a direct violation of the Plaintiffs’ religious beliefs because it would require Plaintiffs to pay for and assist others in paying for or obtaining not only contraception, but also abortion, because certain drugs and devices such as the “morning-after pill,” “Plan B,” and “ella” come within the Mandate’s and Health Resources and Services Administration’s definition of “Food and Drug Administration-approved contraceptive methods” despite their known abortifacient mechanisms of action.
97. Defendants’ refusal to accommodate the conscience of the Plaintiffs, and of other Americans who share the Plaintiffs’ religious views, is highly selective. Numerous exemptions exist in the Affordable Care Act which appear arbitrary and were granted to employers who purchase group insurance. This evidences that Defendants do not mandate that all insurance plans need to cover “preventative services” (e.g. the thousands of waivers from the Affordable Care Act issued by Defendants for group insurance based upon the commercial convenience of large corporations, the age of the insurance plan, or the size of the employer).
98. Despite granting waivers upon a seemingly arbitrary basis, no exemption exists for an employer or individual whose religious conscience instructs him that certain mandated services are unethical, immoral, and volatile to one’s religious beliefs. Defendants’ plan fails to give the same level of weight or accommodation to the exercise of one’s fundamental First Amendment freedoms that it assigns to the yearly earnings of a corporation.
99. The Defendants’ actions violate Plaintiffs’ right to freedom of religion, as secured by the First Amendment to the United States Constitution and civil rights statutes, including the Religious Freedom Restoration Act (RFRA).
100. The Defendants’ actions also violate Plaintiffs’ right to the freedom of speech, as secured by the First Amendment to the United States Constitution.
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101. Furthermore, the Mandate is also illegal because it was imposed by Defendants without prior notice or sufficient time for public comment, and otherwise violates the Administrative Procedure Act, 5 U.S.C. § 553.
102. Had Plaintiffs’ religious beliefs, or the beliefs of the million other Americans who share Plaintiffs’ religious beliefs been obscure or unknown, the Defendants’ actions might have been an accident. But because the Defendants acted with full knowledge of those beliefs, and because they arbitrarily exempt some plans for a wide range of reasons other than religious conviction, the Mandate can be interpreted as nothing other than a deliberate attack by the Defendants on the Catholic Church, the religious beliefs held by Plaintiffs and the similar religious beliefs held by millions of other Americans. The Defendants have, in sum, intentionally used government power to force individuals to believe in, support, and endorse the mandated services manifestly contrary to their own religious convictions, and then to act on that coerced belief, support, or endorsement. Plaintiffs seek declaratory and injunctive relief to protect against this attack. The Affordable Care Act
103. In March 2010, Congress passed, and President Obama signed into law, the “Patient Protection and Affordable Care Act” (Pub. L. 111-148, March 23, 2010, 124 Stat. 119) and the “Health Care and Education Reconciliation Act” (Pub. L. 111-152, March 30, 2010, 124 Stat. 1029) (referred to in this complaint as the “Affordable Care Act”).
104. The Affordable Care Act regulates the national health insurance market by directly regulating “group health plans” and “health insurance issuers.”
105. The Affordable Care Act does not apply equally to all insurers. 106. The Affordable Care Act does not apply equally to all individuals.
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107. The Affordable Care Act requires employers with more than 50 full-time employees or full-time employee equivalents to provide federal government-approved health insurance or pay a substantial per-employee fine. (26 U.S.C. § 4980H).
108. Plaintiff Weingartz Supply Company and its subsidiaries employ well over 50 full-time employees.
109. Plaintiff Weingartz Supply Company and its subsidiaries constitute a “single employer” for purposes of the Affordable Care Act as defined at 42 U.S.C. § 18024(b)(4)(A).
110. Plaintiff Weingartz Supply Company and its subsidiaries, as well as Plaintiff Daniel Weingartz as the President of Weingartz Supply Company must provide federal government-approved health insurance under the Affordable Care Act or pay substantial peremployee fines.
111. The Affordable Care Act purports to not apply to the failure to offer employersponsored insurance to employers with fewer than 50 employees, not counting seasonal workers. 26 U.S.C. § 4980H(c)(2)(A).
112. However, even employees with fewer than 50 employees purchase insurance from health insurance issuers, who are subject to the Affordable Care Act. 42 USC § 300GG-13 (a)(1),(4).
113. Certain provisions of the Affordable Care Act do not apply equally to members of certain religious groups. See, e.g., 26 U.S.C. § 5000A(d)(2)(a)(i) and (ii) (individual mandate does not apply to members of “recognized religious sect or division” that conscientiously objects to acceptance of public or private insurance funds); 26 U.S.C. § 5000A(d)(2)(B)(ii) (individual mandate does not apply to members of “health care sharing ministry” that meets certain criteria).
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114. Plaintiffs do not qualify for an individual exemption under 26 U.S.C. § 5000A(d)(2)(a)(i) and (ii) as Plaintiffs do not object to acceptance of public or private insurance funds in their totality and currently enjoy health insurance benefits that exclude contraceptives, abortion, and abortifacients.
115. The Affordable Care Act’s preventive care requirements do not apply to employers who provide so-called “grandfathered” health care plans.
116. Employers who follow HHS guidelines may continue to use grandfathered plans indefinitely.
117. Plaintiffs’ current insurance plans do not qualify as “grandfathered” health care plans, and are considered “non-grandfathered.”
118. Furthermore, Plaintiffs do not qualify for the “religious employer” exemption contained in 45 CFR § 147.130 (a)(1)(A) and (B).
119. Since the Plaintiffs do not qualify for the “religious employer” exemption, they are not permitted to take advantage of the “temporary safe-harbor” as set forth by the Defendants at 77 Fed. Register 8725 (Feb. 15, 2012).
120. Plaintiffs are thus subjected to the Mandate now and are confronted with choosing between complying with its requirements in violation of their religious beliefs or violating federal law.
121. Plaintiff Weingartz Supply Company and Plaintiff Daniel Weingartz must choose between complying with the requirements of the Affordable Care Act in violation of their religious beliefs or either paying ruinous fines that would have a crippling impact on their ability to survive economically.
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122. Plaintiffs are collectively confronted with complying with the requirements of the Affordable Care Act in violation of their religious beliefs or removing themselves from the health insurance market in its entirety—endangering the health and economic stability of their families and forcing Plaintiff Legatus and Plaintiff Weingartz Supply Company and its subsidiaries to be non-competitive as employers in a market where other, non-Catholic employers will be able to provide insurance to their employees under the Affordable Care Act without violating their religious beliefs.
123. The Affordable Care Act is not generally applicable because it provides for numerous exemptions from its rules.
124. The Affordable Care Act is not neutral because some groups, both secular and religious, enjoy exemptions from the law, while certain religious groups do not. Some groups, both secular and religious, have received waivers from complying with the provisions of the Affordable Care Act, while others—such as the Plaintiffs—have not.
125. The Affordable Care Act creates a system of individualized exemptions. 126. The United States Department of Health and Human Services has the authority under the Affordable Care Act to grant compliance waivers (“HHS waivers”) to employers and other health insurance plan issuers. 127. HHS waivers release employers and other plan issuers from complying with the provisions of the Affordable Care Act. 128. HHS decides whether to grant waivers based on individualized waiver requests from particular employers and other health insurance plan issuers. 129. Upon information and belief, more than a thousand HHS waivers have been granted.
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The “Preventive Care” Mandate 130. A provision of the Affordable Care Act mandates that health plans “provide
coverage for and shall not impose any cost sharing requirements for . . . with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration” and directs the Secretary of United States Department of Health and Human Services to determine what would constitute “preventative care” under the mandate. 42 U.S.C § 300gg–13(a)(4).
131. On July 19, 2010, HHS, along with the United States Department of Treasury and the United States Department of Labor, published an interim final rule under the Affordable Care Act. 75 Fed. Reg. 41726 (2010). The interim final rule required providers of group health insurance to cover preventive care for women as provided in guidelines to be published by the Health Resources and Services Administration at a later date. 75 Fed. Reg. 41759 (2010).
132. On February 15, 2012, the United States Department of Health and Human Services promulgated a mandate that group health plans include coverage for all Food and Drug Administration-approved contraceptive methods and procedures, patient education, and counseling for all women with reproductive capacity in plan years beginning on or after August 1, 2012 (hereafter, “the Mandate”). See 45 CFR § 147.130 (a)(1)(iv), as confirmed at 77 Fed. Register 8725 (Feb. 15, 2012), adopting and quoting Health Resources and Services Administration (HRSA) Guidelines, (http://www.hrsa.gov/womensguidelines).
133. The Mandate was enacted pursuant to statutory authority under the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, as amended by the Health Care and Education Act of 2010, Pub. L. No. 111-152 (ACA). 77 Fed. Reg. 31, 8725 (“Affordable Care Act”).
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134. In its ruling, HHS included all FDA-approved contraceptives under the banner of preventive services, including contraception, abortion, and abortifacients such as the “morningafter pill,” “Plan B,” and “ella,” a close cousin of the abortion pill RU-486. (http://www.hrsa.gov/womensguidelines).
135. The Mandate’s reach seeks to control the decisions of employers, individuals and also the decisions of all insurance issuers (i.e. “Blue Cross/Blue Shield of Michigan,” etc.). 42 USC § 300gg-13 (a)(1),(4). (“A group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for evidence-based items or services that have in effect a rating of “A” or “B” in the current recommendations of the United States Preventive Services Task Force; . . . with respect to women, such additional preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.”).
136. All insurance issuers are mandated to include contraception, abortion, and abortifacients such as the “morning-after pill,” “Plan B,” and “ella” in all of its group and individual plans, not specifically exempted, beginning as of August 1, 2012.
137. Individuals and employers, regardless of the number of employees they employ, will eventually be forced to select an insurance plan which includes what HHS deemed “preventative care.”
138. All individuals and employers will be stripped of their choice not to pay for the “preventative care,” regardless of whether paying for such “services” violates one’s conscience or deeply held religious beliefs.
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139. Health insurance issuers include insurance companies such as Blue Cross/Blue

Shield of Michigan, which is the insurance issuer used by Plaintiffs.

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

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

do not automatically provide contraception, abortion, and abortifacients.

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

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

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

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

including contraception, abortion, and abortifacients.

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

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

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

(http://www.hrsa.gov/womensguidelines).

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

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

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

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

Parenthood

Federation

of

America

and

Sara

Rosenbaum.

(http://www.nap.edu/openbook.php?record_id=13181&PAGE=217).

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

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

presenters.

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145. One year after the first interim final rule was published, on July 19, 2011, the IOM published its recommendations. It recommended that the preventative services include “All Food and Drug Administration approved contraceptive methods.” (Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps (July 19, 2011)).
146. Preventative services therefore include FDA-approved contraceptive methods such as birth-control pills; prescription contraceptive devices, including IUDs; Plan B, also known as the “morning-after pill”; and ulipristal, also known as “ella” or the “week-after pill”; and other drugs, devices, and procedures.
147. Plan B and “ella” can prevent the implantation of a human embryo in the wall of the uterus and can cause the death of an embryo. The use of artificial means to prevent the implantation of a human embryo in the wall of the uterus or to cause the death of an embryo each constitute an “abortion” as that term is used in federal law and Catholic teaching. Consequently, Plan B and “ella” are abortifacients.
148. Thirteen days later, on August 1, 2011, without notice of rulemaking or opportunity for public comment, HHS, the United States Department of Labor, and the United States Department of Treasury adopted the IOM recommendations in full and promulgated an interim final rule (“the Mandate”), which requires that all “group health plan[s] and . . . health insurance issuer[s] offering group or individual health insurance coverage” provide all FDAapproved contraceptive methods and procedures. 76 Fed. Reg. 46621 (published Aug. 3, 2011); 45 C.F.R. § 147.130. Health Resources and Services Administration issued guidelines adopting the IOM recommendations. (http://www.hrsa.gov/womensguidelines).
149. The Mandate also requires group health care plans and insurance issuers to provide education and counseling for all women beneficiaries with reproductive capacity.
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150. The Mandate went into effect immediately as an “interim final rule.” 151. HHS did not take into account the concerns of religious organizations in the comments submitted before the Mandate was issued. 152. Instead the Mandate was unresponsive to the concerns stated in the comments submitted by religious organizations. 153. When it issued the Mandate, HHS requested comments from the public by September 30th and indicated that comments would be available online. 154. Upon information and belief, over 100,000 comments were submitted against the Mandate. 155. On October 5, 2011, six days after the comment period ended, Defendant Sebelius gave a speech at a fundraiser for NARAL Pro-Choice America. She told the assembled crowd that “we are in a war.” She did not state whom she and NARAL Pro-Choice America were warring against. 156. During a Congressional hearing on April 26, 2012, Defendant Sebelius admitted that she is totally unfamiliar with the United States Supreme Court religious freedom cases. 157. Defendant Sebelius showed little concern for the constitutional issues involved in promulgating the Mandate. At the aforementioned congressional hearing, she admitted that prior to issuing the Mandate she did not review any written materials or any sort of legal memo from her general counsel discussing the effects of the Mandate on religious freedom. 158. The Mandate fails to take into account the statutory and constitutional conscience rights of religious organizations, like Plaintiff Legatus and the over 2100 member-businesses of Plaintiff Legatus such as Plaintiff Daniel Weingartz’s company Plaintiff Weingartz Supply Company, which has been a subject of comment.
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159. The Mandate requires that Plaintiffs assist, provide, or fund coverage for contraception, abortion, abortifacients, and related education and counseling against its conscience in a manner that is contrary to law.
160. The Mandate constitutes government-imposed pressure and coercion on Plaintiffs to change or violate their religious beliefs.
161. The Mandate exposes Plaintiff Legatus’ members including Plaintiff Weingartz Supply Company and Plaintiff Daniel Weingartz, as individuals and as employers or companies with over 50 full-time employees, to substantial fines for refusal to change or violate their religious beliefs.
162. The Mandate imposes a burden on Plaintiffs’ employee recruitment efforts by creating uncertainty as to whether Plaintiffs will be able to offer health insurance beyond August 1, 2012.
163. The Mandate places on Plaintiff Legatus and the over 2100 member-businesses of Plaintiff Legatus, such as Plaintiff Weingartz Supply Company, at a competitive disadvantage in its efforts to recruit and retain employees and members.
164. The Mandate forces Plaintiffs to provide, fund, or approve and assist its employees and members in purchasing contraception and abortifacient drugs in violation of Plaintiffs’ religious beliefs that doing so is gravely immoral and, in certain cases, equivalent to assisting another to destroy innocent human life.
165. Plaintiffs have a sincere religious objection to providing coverage for emergency contraceptive drugs such as Plan B and “ella” since they believe those drugs could prevent a human embryo, which they understand to include a fertilized egg before it implants in the uterus, from implanting in the wall of the uterus, causing the death of a person.
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166. Plaintiffs consider the prevention by artificial means of the implantation of a human embryo to be an abortion.
167. Plaintiffs believe that Plan B and “ella” can cause the death of the embryo, which is a person.
168. Plan B can prevent the implantation of a human embryo in the wall of the uterus. 169. “Ella” can prevent the implantation of a human embryo in the wall of the uterus. 170. Plan B and “ella” can cause the death of the embryo. 171. The use of artificial means to prevent the implantation of a human embryo in the wall of the uterus constitutes an “abortion” as that term is used in federal law. 172. The use of artificial means to cause the death of a human embryo constitutes an “abortion” as that term is used in federal law. 173. The Mandate forces Plaintiffs to provide emergency contraception, including Plan B and “ella,” free of charge, regardless of the ability of insured persons to obtain these drugs from other sources. 174. The Mandate forces Plaintiffs to fund education and counseling concerning contraception, and abortion that directly conflicts with Plaintiffs’ religious beliefs and teachings. 175. Plaintiffs could not cease in providing its employees with health insurance coverage without violating its religious duty to provide for the health and well-being of its employees and their families. Additionally, employees would be unable to attain similar coverage in the market as it now exists. 176. The Mandate forces Plaintiffs to choose among violating their religious beliefs, incurring substantial fines, or terminating their employee or individual health insurance coverage.
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177. The Mandate forces Plaintiff Legatus’ members composed of over 2,100 Catholic-run businesses, such as Plaintiff Weingartz Supply Company and Plaintiff Daniel Weingartz, to choose among violating their religious beliefs, incurring substantial fines, or terminating their employee or individual health insurance coverage.
178. Providing counseling and education about contraceptives, and abortion directly undermines and subverts the explicit messages and speech of Plaintiffs.
179. Group health plans and insurance issuers will be subject to the Mandate starting on August 1, 2012.
180. Plaintiffs have already had to devote significant institutional resources, including both staff time and funds, to determine how to respond to the Mandate. Plaintiffs anticipate continuing to make such expenditures of time and money up until and after the time that the Mandate goes into effect. The Narrow and Discretionary Religious Exemption
181. The Mandate indicates that the Health Resources and Services Administration (“HRSA”) “may” grant religious exemptions to certain religious employers. 45 C.F.R. § 147.130(a)(iv)(A).
182. The Mandate allows HRSA to grant exemptions for “religious employers” who “meet[ ] all of the following criteria: (1) The inculcation of religious values is the purpose of the organization. (2) The organization primarily employs persons who share the religious tenets of the organization. (3) The organization serves primarily persons who share the religious tenets of the organization. (4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 45 C.F.R. § 147.130(a)(iv)(B).
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183. The Mandate imposes no constraint on HRSA’s discretion to grant exemptions to some, all, or none of the organizations meeting the Mandate’s definition of “religious employers.”
184. HHS stated that it based the exemption on comments on the 2010 interim final rule. 76 Fed. Reg. 46621.
185. Most Catholic-run companies and religious organizations, including Plaintiffs and other members of Plaintiff Legatus, have more than one purpose.
186. For most Catholic-run companies and religious organizations, including Plaintiffs and other members of Plaintiff Legatus, the inculcation of religious values is only one purpose among others.
187. Many Catholic-run companies and religious organizations, including Plaintiffs, employ many persons who do not share the religious organization’s beliefs.
188. Many Catholic-run companies and religious organizations, including Plaintiffs and other members of Plaintiff Legatus, serve many persons who do not share the religious tenets of the religious organization.
189. Plaintiffs reasonably expect, as confirmed by their respective insurance issuers, that they will be subject to the Mandate despite the existence of exemptions to the Mandate as none of the exemptions apply to Plaintiffs.
190. On January 20, 2012, Defendant Sebelius announced that there would be no change to the religious exemption. She added that “[n]onprofit employers who, based on religious beliefs, do not currently provide contraceptive coverage in their insurance plan, will be provided an additional year, until August 1, 2013, to comply with the new law,” on the condition that those employers certify they qualify for the extension. At the same time, however, Sebelius
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announced that HHS “intend[s] to require employers that do not offer coverage of contraceptive services to provide notice to employees, which will also state that contraceptive services are available at sites such as community health centers, public clinics, and hospitals with incomebased support.” See Statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius, (http://www.hhs.gov/news/press/2012pres/01/20120120a.html). To date, Defendant HHS has not released any official rule implementing either the one-year extension or the additional forced-speech requirement that applies to either Plaintiff.
191. It is inevitable with the current state of the law that Plaintiffs will have to comply with the Mandate, despite the fact that Plaintiffs will violate the teachings of their religious beliefs and the teachings of their Catholic faith by directly providing, funding, and/or allowing its members to engage in disseminating information and guidance about where to obtain contraception, abortion, or abortifacient services.
CLAIMS COUNT I Violation of the First Amendment to the United States Constitution Free Exercise Clause 192. Plaintiffs incorporate by reference all preceding paragraphs. 193. Plaintiffs’ sincerely held religious beliefs prohibit it from providing coverage for contraception, abortion, or related education and counseling. Plaintiffs’ compliance with these beliefs is a religious exercise. 194. Neither the Affordable Care Act nor the Mandate is neutral. 195. Neither the Affordable Care Act nor the Mandate is generally applicable. 196. Defendants have created categorical exemptions and individualized exemptions to the Mandate.
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197. The Mandate furthers no compelling governmental interest. 198. The Mandate is not the least restrictive means of furthering Defendants’ stated interests. 199. The Mandate creates government-imposed coercive pressure on Plaintiffs to change or violate their religious beliefs. 200. The Mandate chills Plaintiffs’ religious exercise. 201. The Mandate exposes Plaintiffs to substantial competitive disadvantages, in that it will no longer be permitted to offer health insurance. 202. The Mandate exposes the members of Plaintiff Legatus, Plaintiff Weingartz Supply Company, and Plaintiff Daniel Weingartz to substantial fines for their religious exercise. 203. The Mandate exposes Plaintiffs to monetary and health risks as they will no longer be able to accept health insurance, nor be able to purchase or provide health care insurance without violating their religious beliefs. 204. The Mandate imposes a substantial burden on Plaintiffs’ religious exercise. 205. The Mandate is not narrowly tailored to any compelling governmental interest. 206. The Mandate and Defendants’ threatened enforcement of the Mandate violate Plaintiffs’ rights secured to them by the Free Exercise Clause of the First Amendment to the United States Constitution. 207. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT II Violation of the First Amendment to the United States Constitution
Free Exercise Clause 208. Plaintiffs incorporate by reference all preceding paragraphs.
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209. Plaintiffs’ sincerely held religious beliefs prohibit them from purchasing or providing coverage for contraception, abortion, or related education and counseling. Plaintiffs’ compliance with these beliefs is a religious exercise.
210. Despite being informed in detail of these beliefs beforehand, Defendants designed the Mandate and the religious exemption to the Mandate in a way that made it impossible for Plaintiffs to comply with their religious beliefs.
211. Defendants promulgated both the Mandate and the religious exemption to the Mandate in order to suppress the religious exercise of Plaintiffs and others.
212. The Mandate and Defendants’ threatened enforcement of the Mandate thus violate Plaintiffs’ rights secured to them by the Free Exercise Clause of the First Amendment of the United States Constitution.
213. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT III Violation of the First Amendment to the United States Constitution
Free Exercise Clause 214. Plaintiffs incorporate by reference all preceding paragraphs. 215. By design, Defendants imposed the Mandate on some religious organizations or religious individuals but not on others, resulting in discrimination among religions. 216. The Mandate vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations meeting the definition of “religious employers.” 217. The Mandate vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no religious individuals.
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218. The Mandate and Defendants’ threatened enforcement of the Mandate thus violate Plaintiffs’ rights secured to it by the Free Exercise Clause of the First Amendment of the United States Constitution.
219. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT IV Violation of the First Amendment to the United States Constitution
Establishment Clause 220. Plaintiffs incorporate by reference all preceding paragraphs. 221. By design, defendants imposed the Mandate on some religious organizations but not on others, resulting in a selective burden on Plaintiffs. 222. Defendants also imposed the Mandate on some religious individuals and religious organizations but not on others, resulting in a selective burden on Plaintiffs. 223. The Mandate vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations meeting the definition of “religious employers.” 224. The Mandate also vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no individuals. 225. The Mandate and Defendants’ threatened enforcement of the Mandate therefore violates Plaintiffs’ rights secured to it by the Establishment Clause of the First Amendment to the United States Constitution. 226. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
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COUNT V Violation of the First Amendment to the United States Constitution
Freedom of Speech 227. Plaintiffs incorporate by reference all preceding paragraphs. 228. Plaintiffs profess, educate, lecture, give presentations, and engage in outreach amongst Legatus members and in their community that contraception, abortion, and abortifacients violate their religious beliefs. 229. The Mandate would compel Plaintiffs to provide or subsidize activities that Plaintiffs profess, educate, lecture, give presentations, and engage in outreach amongst over 4,000 members of Legatus and in their community are violations of the Plaintiffs’ religious beliefs. 230. The Mandate would compel Plaintiffs to fund and to provide education and counseling related to contraception, abortion, and abortifacients. 231. Defendants’ actions thus violate Plaintiffs’ right to be free from compelled speech as secured to it by the First Amendment of the United States Constitution. 232. The Mandate’s compelled speech requirement is not narrowly tailored to a compelling governmental interest. 233. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT VI Violation of the First Amendment to the United States Constitution
Expressive Association 234. Plaintiffs incorporate by reference all preceding paragraphs.
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235. Plaintiffs profess, educate, lecture, give presentations, and engage in outreach amongst the over 4,000 members of Legatus and in their community that contraception, abortion, and abortifacients violate their religious beliefs.
236. The Mandate would compel Plaintiffs to subsidize activities that Plaintiffs profess, educate, lecture, give presentations, and engage in outreach amongst the over 4,000 members of Legatus and in their community are violations of Plaintiffs’ religious beliefs.
237. The Mandate would compel Plaintiffs to fund and to provide education and counseling related to contraception, abortion, and abortifacients.
238. Defendants’ actions thus violate Plaintiffs’ right of expressive association as secured to it by the First Amendment of the United States Constitution.
239. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT VII Violation of the First Amendment to the United States Constitution
Free Exercise Clause and Freedom of Speech 240. Plaintiffs incorporate by reference all preceding paragraphs. 241. By stating that HRSA “may” grant an exemption to certain religious groups, the Mandate vests HRSA with unbridled discretion over which organizations or individuals can have its First Amendment interests accommodated. 242. The Mandate vests HRSA with unbridled discretion to determine whether a religious organization such as Plaintiff Legatus “primarily” serves and employs members of the same faith as the organization.
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243. The Mandate vests HRSA with unbridled discretion to determine whether a religious individual such as a member or employee of Plaintiff Legatus or Plaintiff Daniel Weingartz falls under the individual religious exemption. See 26 U.S.C. § 5000A(d)(2)(a)(i)-(ii).
244. The Mandate furthermore seems to have completely failed to address the constitutional and statutory implications of the Mandate on for-profit, secular employers such as Plaintiff Weingartz Supply Company and Plaintiff Daniel Weingartz. As such, Plaintiff Weingartz Supply Company and Plaintiff Daniel Weingartz are subject to the unbridled discretion of HRSA to determine whether such companies would be exempt.
245. Defendants’ actions therefore violate Plaintiffs’ right not to be subjected to a system of unbridled discretion when engaging in speech or when engaging in religious exercise, as secured to it by the First Amendment of the United States Constitution.
246. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT VIII Violation of the Religious Freedom Restoration Act 247. Plaintiffs incorporate by reference all preceding paragraphs. 248. Plaintiffs’ sincerely held religious beliefs prohibit it from providing or purchasing coverage for contraception, abortion, abortifacients, or related education and counseling. Plaintiffs’ compliance with these beliefs is a religious exercise. 249. The Mandate creates government-imposed coercive pressure on Plaintiffs to change or violate their religious beliefs. 250. The Mandate chills Plaintiffs’ religious exercise. 251. The Mandate exposes Plaintiff Weingartz Supply Company and Plaintiff Daniel Weingartz to substantial fines for their religious exercise.
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252. The Mandate exposes members of Plaintiff Legatus, including Plaintiff Weingartz Supply Company and Plaintiff Daniel Weingartz, who constitute employers with 50 or more fulltime employees to substantial fines for their religious exercise.
253. The Mandate exposes Plaintiffs to substantial competitive disadvantages, in that it will no longer be permitted to offer or purchase health insurance.
254. The Mandate imposes a substantial burden on Plaintiffs’ religious exercise. 255. The Mandate furthers no compelling governmental interest. 256. The Mandate is not narrowly tailored to any compelling governmental interest. 257. The Mandate is not the least restrictive means of furthering Defendants’ stated interests. 258. The Mandate and Defendants’ threatened enforcement of the Mandate violate Plaintiffs’ rights secured to it by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. 259. Absent injunctive and declaratory relief against the Defendants, Plaintiffs have been and will continue to be harmed.
COUNT IX Violation of the Administrative Procedure Act 260. Plaintiffs incorporate by reference all preceding paragraphs. 261. Defendants’ stated reasons that public comments were unnecessary, impractical, and opposed to the public interest are false and insufficient, and do not constitute “good cause.” 262. Without proper notice and opportunity for public comment, Defendants were unable to take into account the full implications of the regulations by completing a meaningful “consideration of the relevant matter presented.” Defendants did not consider or respond to the voluminous comments they received in opposition to the interim final rule.
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263. Therefore, Defendants have taken agency action not in observance with procedures required by law, and Plaintiffs are entitled to relief pursuant to 5 U.S.C. § 706(2)(D).
264. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT X Violation of the Administrative Procedure Act 265. Plaintiffs incorporate by reference all preceding paragraphs. 266. In promulgating the Mandate, Defendants failed to consider the constitutional and statutory implications of the mandate on Plaintiffs and similar organizations, companies, and individuals. 267. Defendants’ explanation for its decision not to exempt Plaintiffs and similar religious organizations and religious individuals from the Mandate runs counter to the evidence submitted by religious organizations during the comment period. 268. Thus, Defendants’ issuance of the interim final rule was arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because the rules fail to consider the full extent of their implications and they do not take into consideration the evidence against them. 269. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT XI Violation of the Administrative Procedure Act 270. Plaintiffs incorporate by reference all preceding paragraphs. 271. The Mandate is contrary to the provisions of the Weldon Amendment of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act of 2009, Public Law 110 329, Div. A, Sec. 101, 122 Stat. 3574, 3575 (September 30, 2008).
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272. The Weldon Amendment provides that “[n]one of the funds made available in this Act [making appropriations for Defendants United States Department of Labor and United States Department of Health and Human Services] may be made available to a Federal agency or program . . . if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.”
273. The Mandate requires issuers, employers, and individuals, including Plaintiffs and Plaintiff Legatus’ members to provide and purchase coverage of all Federal Drug Administration-approved contraceptives.
274. Some FDA-approved contraceptives cause abortions. 275. As set forth above, the Mandate violates RFRA and the First Amendment. 276. Under 5 U.S.C. § 706(2)(A), the Mandate is contrary to existing law, and is in violation of the Administrative Procedure Act. 277. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT XII Violation of the Administrative Procedure Act 278. Plaintiffs incorporate by reference all preceding paragraphs. 279. The Mandate is contrary to the provisions of the Affordable Care Act. 280. Section 1303(b)(1)(A) of the Affordable Care Act states that “nothing in this title”—i.e., title I of the Act, which includes the provision dealing with “preventive services”— “shall be construed to require a qualified health plan to provide coverage of [abortion] services . . . as part of its essential health benefits for any plan year.”
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281. Section 1303 further states that it is “the issuer” of a plan that “shall determine whether or not the plan provides coverage” of abortion services.
282. Under the Affordable Care Act, Defendants do not have the authority to decide whether a plan covers abortion; only the issuer does.
283. However, the Mandate requires all issuers, including Plaintiffs and Plaintiffs’ insurance issuer Blue Cross/Blue Shield of Michigan, to provide coverage of all Federal Drug Administration-approved contraceptives.
284. Some FDA-approved contraceptives cause abortions. 285. Under 5 U.S.C. § 706(2)(A), the Mandate is contrary to existing law, and is in violation of the Administrative Procedure Act. 286. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
PRAYER FOR RELIEF Wherefore, Plaintiffs request that the Court: a. Declare that the Mandate and Defendants’ enforcement of the Mandate against Plaintiffs violates the First Amendment to the United States Constitution; b. Declare that the Mandate and Defendants’ enforcement of the Mandate against Plaintiffs violates the Religious Freedom Restoration Act; c. Declare that the Mandate was issued in violation of the Administrative Procedure Act; d. Issue both a preliminary and a permanent injunction prohibiting and enjoining Defendants from enforcing the Mandate against Plaintiffs and other religious organizations,
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religious individuals, employers, and companies that object to funding and providing insurance coverage for contraceptives, abortion, abortifacients, and related education and counseling;
e. Award Plaintiffs the costs of this action and reasonable attorney’s fees; and f. Award such other and further relief as it deems equitable and just.
Respectfully submitted, THOMAS MORE LAW CENTER /s/ Erin Elizabeth Mersino Erin Elizabeth Mersino, Esq. (P70886) Richard Thompson, Esq. (P21410) 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, Michigan 48106 Tel (734) 827-2001 Fax (734) 930-7160 emersino@thomasmore.org LAW OFFICE OF CHARLES S. LIMANDRI, APC Charles S. LiMandri, Esq. (CA Bar No. 110841) Teresa Mendoza, Esq. (CA Bar No. 185820) P.O. Box 9120 Rancho Santa Fe, CA 92067 Tel (858) 759-9930 Fax (858) 759-9938 climandri@limandri.com Counsel for Plaintiffs
42

 
 2:12-cv-12061-RHC-MJH Doc # 9 Filed 07/25/12 Pg 1 of 25 Pg ID 80

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

LEGATUS; WEINGARTZ SUPPLY

)

COMPANY; and DANIEL WEINGARTZ, )

President of Weingartz Supply Company, )

)

Plaintiffs,

)

v.

)

)

KATHLEEN SEBELIUS, Secretary of the ) Case No.: 2:12-cv-12061-RHC-MJH

United States Department of Health and

)

Human Services; UNITED STATES

) NOTICE OF MOTION AND BRIEF FOR

DEPARTMENT OF HEALTH AND

) TEMPORARY RESTRAINING ORDER

HUMAN SERVICES; HILDA SOLIS,

)

Secretary of the United States Department of ) Judge Robert H. Cleland

Labor; UNITED STATES DEPARTMENT )

OF LABOR; TIMOTHY GEITHNER,

) Magistrate Judge Michael Hluchaniuk

Secretary of the United States Department of )

the Treasury; and UNITED STATES

)

DEPARTMENT OF THE TREASURY,

)

)

Defendants.

THOMAS MORE LAW CENTER Richard Thompson, Esq. (P21410) Erin Mersino, Esq. (P70886) 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, MI 48106 emersino@thomasmore.org (734) 827-2001
LAW OFFICE OF CHARLES S. LIMANDRI Charles S. Limandri, Esq. (CA Bar No. 110841) Teresa Mendoza, Esq. (CA Bar No. 185820) P.O. Box 9120 Rancho Santa Fe, CA 92067 Tel (858) 759-9930
Attorneys for Plaintiffs

STUART F. DELERY Acting Assistant Attorney General
BARBARA L. McQUADE United States Attorney Eastern District of Michigan
SHEILA M. LIEBER Deputy Branch Director
ETHAN P. DAVIS Trial Attorney Civil Division Federal Programs Branch United States Department of Justice 20 Massachusetts Ave. NW Washington, DC 20001 Tel: (202) 514-9242 Fax: (202) 616-8470 E-Mail: Ethan.P.Davis@usdoj.gov

Attorneys for Defendants

2:12-cv-12061-RHC-MJH Doc # 9 Filed 07/25/12 Pg 2 of 25 Pg ID 81
PLAINTIFFS’ NOTICE OF MOTION AND EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER & BRIEF IN SUPPORT
PLEASE TAKE NOTICE that at the earliest possible time for the court to hear this motion, Plaintiffs Legatus, Weingartz Supply Company, and Daniel Weingartz, by and through their undersigned counsel, will and hereby move the court for a Temporary Restraining Order pursuant to Fed. R. Civ. P. 65 and L.R. 65(b) in order to prevent immediate irreparable injury to Plaintiffs’ fundamental rights and interests.
In support of their motion, Plaintiffs rely upon the pleadings and papers of record, as well as their brief filed with this motion, and the declarations and exhibits attached hereto. For the reasons set forth more fully below, Plaintiffs hereby request that this court temporarily enjoin the enforcement of Defendants’ Health and Human Services Mandate (hereinafter “HHS Mandate”) which violates Plaintiffs’ rights guaranteed by the First Amendment to the United States Constitution and the Religious Freedom Restoration Act of 1993, 107 Stat. 1488, as amended, 42 U.S.C. § 2000bb et seq. For the purposes of this temporary restraining order, the Plaintiffs’ focus solely on Claims I-III and V-VIII of their complaint; however, Plaintiffs do not forfeit any of the claims alleged in their complaint.
1. The purpose for a TRO in this case is to enjoin the HHS Mandate, which becomes law on August 1, 2012, and will violate the Plaintiffs’ deeply held religious beliefs.
2. Defendants’ HHS Mandate, as demonstrated further below, violates Plaintiffs’ First Amendment rights and Plaintiffs’ rights under the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.
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3. Allowing the enforcement of the Mandate will cause irreparable harm to the Plaintiffs sufficient to justify immediate injunctive relief.
4. This TRO request requires immediate attention because the HHS Mandate becomes law on August 1, 2012.
5. Plaintiffs, individually and through counsel, have made attempts to resolve this matter prior to seeking this TRO.
6. Counsel has met and conferred, engaging in two telephone conversations on June 20, 2012 and June 22, 2012. Counsel on both sides respectfully came to the conclusion that their positions were too divergent and concurrence could not be reached.
7. Counsel has additionally communicated via email. Counsel agreed by stipulation that the Defendants be allowed to extend the time to answer the Plaintiffs’ complaint, but also expressly agreed that “This stipulation will not in any way affect the Plaintiffs’ right and ability to move for a temporary restraining order prior to August 1, 2012.” (Doc. #8).
8. Since an agreement between the parties cannot be reached and the Plaintiffs fear the imminent violation of their constitutional rights and religious beliefs, Plaintiffs have no choice but to seek this TRO with the court in order to protect Plaintiffs’ constitutional rights and avoid severe monetary fines for noncompliance with the HHS Mandate.
9. Defendants’ counsel has filed an appearance. Therefore, Plaintiffs’ counsel will provide notice of this TRO request through ECF filing with the court, in addition to sending a copy of this motion and brief to the Department of Justice via facsimile at (202) 616-8470 and via email at Ethan.P.Davis@usdoj.gov. The phone number for the Department of Justice is (202) 514-9242.
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2:12-cv-12061-RHC-MJH Doc # 9 Filed 07/25/12 Pg 4 of 25 Pg ID 83 ISSUE PRESENTED
I. Whether the HHS Mandate, which substantially burdens the Plaintiffs’ First Amendment freedoms and free exercise of religion without serving a compelling interest and without using the least restrictive means necessary, causes irreparable harm sufficient to warrant injunctive relief.
CONTROLLING AUTHORITY Religious Freedom Restoration Act of 1993, 107 Stat. 1488, as amended, 42 U.S.C. § 2000bb et seq. Sherbert v. Verner, 374 U.S. 398 (1963) Wisconsin v. Yoder, 406 U.S. 205 (1972) Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993) Hurley v. Irish-American Gay, Lesbian & Bisexual Group, 515 U.S. 557 (1995) Elrod v. Burns, 427 U.S. 347 (1976)
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BREIF IN SUPPORT OF EMERGENCY TRO MOTION RELEVANT FACTS
Plaintiffs Legatus, Weingartz Supply Company and Daniel Weingartz bring this motion for a temporary restraining order to enjoin the unconstitutional and illegal directives of the HHS Mandate. Plaintiff Legatus is an international, Catholic organization established for the purpose of promoting the study, practice, and spread of the Catholic faith in the business, professional, and personal lives of its members, comprised of Chief Executive Officers, Presidents, Managing Partners and Business Owners, with their spouses, from the business community and professional enterprises. (Hunt Decl. at ¶ 2; Weingartz Decl. at ¶ 11). Plaintiff Legatus is incorporated under the laws of Michigan. (Hunt Decl. at ¶ 1). Plaintiff Daniel Weingartz is a member of Legatus and the President of Weingartz Supply Company, a for-profit business incorporated under the laws of Michigan with over 50 full time employees. (Weingartz Decl. at ¶¶ 1-5, 9-10; Hunt Decl. at ¶ 9, 21-23; DiCresce Decl. at ¶ 9).
The members of Plaintiff Legatus, including Plaintiff Daniel Weingartz, follow the teachings, mission, and values of the Catholic faith. (Weingartz Decl. at ¶¶ 7, 10-13; Hunt Decl. at ¶¶ 6, 7). Plaintiff Legatus professes, educates, lectures, gives presentations, and engages in outreach amongst its members and in the community that contraception, abortion, and abortifacients violate the religious beliefs of Plaintiff Legatus and its members, including Plaintiff Daniel Weingartz. (Hunt Decl. at ¶ 7). Plaintiff Legatus and its members, including Plaintiff Daniel Weingartz, share sincerely held religious beliefs that forbid them from participating in, paying for, training others to engage in, or otherwise supporting contraception, abortion, and abortifacients. (Hunt Decl. at ¶ 8). Plaintiff Legatus and its members, including Plaintiff Daniel Weingartz, cannot provide, fund, or participate in health care insurance which
5

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covers artificial contraception, abortion, or abortifacients, or related education and counseling, nor provide information or guidance to its employees or its members for the purpose of supporting or providing artificial contraception, abortion, abortifacients or related education and counseling, without violating their deeply held religious beliefs. (Hunt Decl. at ¶¶ 12, 13).
As practicing Catholics, the Plaintiffs align their beliefs with Pope Paul VI’s 1968 encyclical Humanae Vitae, which states “any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation, whether as an end or as a means”—including contraception—is a grave sin. (Weingartz Decl. at ¶¶ 7, 10-13, 16; Hunt Decl. at ¶¶ 6, 7). Plaintiffs subscribe to authoritative Catholic teaching regarding the proper nature of health care and medical treatment. For instance, Plaintiffs believe, in accordance with Pope John Paul II’s 1995 encyclical Evangelium Vitae, that “‘[c]ausing death’ can never be considered a form of medical treatment,” but rather “runs completely counter to the health-care profession, which is meant to be an impassioned and unflinching affirmation of life.” Id. Plaintiffs do not believe that contraception or abortion properly constitute health care, and involve immoral practices and the destruction of innocent human life. (Weingartz Decl. at ¶ 16).
Due to these beliefs, Plaintiffs designed insurance policies which specifically exclude coverage for contraception, abortion, and abortifacients. (Weingartz Decl. at ¶ 18; Hunt Decl. at ¶¶ 14, 15; Leipold Decl. at ¶ 8; DiCresce Decl. at ¶ 13); (Ex. 5). Plaintiff Daniel Weingartz, on behalf of Plaintiff Weingartz Supply Company, worked with his insurance agent Brown & Brown of Detroit to design its group health insurance plan which specifically excludes abortion, abortifcients, and contraception from its insurance plan. (DiCresce Decl. at ¶¶ 4-8; Weingartz Decl. at ¶¶ 16-18). Brown & Brown of Detroit was able to secure this plan design through a self-
6

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funded program, with Blue Cross/Blue Shield of Michigan providing third party administration and stop-loss insurance. (DiCresce Decl. at ¶ 6; Weingartz Decl. at ¶¶ 16-18).
Plaintiff Legatus receives its health insurance coverage through the Ave Maria Medical Plan, which is a fully insured medical plan provided by insurance issuer Blue Cross/Blue Shield of Michigan (Leipold Decl. at ¶¶ 5, 6; Hunt Decl. at ¶¶ 14-16). Plaintiff Legatus’ insurance policy specifically excludes coverage from voluntary abortions and contraceptive drugs. (Leipold Decl. at ¶ 8; Hunt Decl. at ¶¶ 14-16).
However after August 1, 2012, Plaintiffs will no longer have the right to make health care insurance decisions in line with their Catholic views. On August 1, 2012, the Health and Human Services Mandate of the Affordable Care Act (“HHS Mandate”) will go into effect and force Plaintiffs to pay, fund, contribute, or support artificial contraception, abortion, abortifacients or related education and counseling, in violation of their Constitutional rights and deeply held religious beliefs. See 45 C.F.R. § 147.130 (a)(1)(iv), as confirmed at 77 Fed. Register 8725 (Feb. 15, 2012), adopting and quoting Health Resources and Services Administration (HRSA) Guidelines, (http://www.hrsa.gov/womensguidelines) (See also Leipold Decl. at ¶¶ 7, 11; DiCresce Decl. at ¶¶ 10, 14; Hunt Decl. at ¶ 25-29; Weingartz Decl. at ¶ 26).
The Affordable Care Act called for health insurance plans to provide coverage and “not impose any cost sharing requirements for . . . with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines” and directed the Secretary of the United States Department of Health and Human Services, Defendant Sebelius, to determine what would constitute “preventative care.” 42 U.S.C § 300gg-13(a)(4). Defendants United States Health and Human Services, United States Department of Treasury, and United States Department of Labor, published an interim final rule under the Affordable Care Act. 75
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Fed. Reg. 41726 (2010), requiring providers of group health insurance to cover “preventive care” for women as provided in guidelines to be published on a later date. 1 Id. Prior to adopting those guidelines, Defendants accepted public comments. Upon information and belief, a large number of groups filed comments, warning of the potential conscience implications of requiring religious individuals and groups to pay for contraception, abortion, and abortifacients.
On February 15, 2012, Defendant United States Department of Health and Human Services (“HHS”) promulgated the mandate that group health plans include coverage for all Food and Drug Administration-approved contraceptive methods and procedures, patient education, and counseling for all women with reproductive capacity in plan years beginning on or after August 1, 2012 (“the HHS Mandate”). See 45 C.F.R. § 147.130 (a)(1)(iv), as confirmed at 77 Fed. Register 8725 (Feb. 15, 2012), adopting and quoting Health Resources and Services Administration (HRSA) Guidelines, (http://www.hrsa.gov/womensguidelines). All FDAapproved contraceptives included contraception, abortion, and abortifacients such as birthcontrol pills; prescription contraceptive devices, including IUDs; Plan B, also known as the “morning-after pill”; and ulipristal, also known as “ella” or the “week-after pill”; and other drugs, devices, and procedures. (http://www.hrsa.gov/womensguidelines).
The HHS Mandate applies to almost all group health plans and health insurance issuers, 42 U.S.C. § 300gg-13 (a)(1),(4), and forces Plaintiffs to provide “preventative care” by making available and subsidizing contraception, abortion, and abortifacients such as the “morning-after
1 Defendants directed the Institute of Medicine (“IOM”) to compile recommended guidelines describing which drugs, procedures, and services should be covered as preventative care for women. (http://www.hrsa.gov/womensguidelines). IOM invited select groups to make presentations on the preventive care that should be mandated by all health plans. (http://www.nap.edu/openbook.php?record_id=13181&PAGE=217). No religious groups or groups opposing government-mandated coverage of contraception, abortion, and related education and counseling were invited to presenters. Defendants adopted the IOM recommendations in full. 76 Fed. Reg. 46621 (published Aug. 3, 2011); 45 C.F.R. § 147.130.
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pill,” “Plan B,” and “ella.” The HHS Mandate also requires group health care plans and insurance issuers to provide education and counseling for all women beneficiaries with reproductive capacity—despite the impact that paying for or providing such “services” violates one’s consciences and deeply held religious beliefs.
The Affordable Health Care Act and the HHS Mandate include a number of exemptions; however, Plaintiffs do not fall under any of these exemptions. (Leipold Decl. at ¶¶ 7, 10; DiCresce Decl. at ¶¶ 9-14; Hunt Decl. at ¶¶ 17-20; Weingartz Decl. at ¶¶ 28-32). The allowable factors for receiving exemptions under the Affordable Health Care Act include: the age of the plan, 42 U.S.C. § 18011(a)(2); 26 C.F.R. § 54.9815-1251T; 29 C.F.R. § 2590.715-1251; 45 C.F.R. §147.140 (exempting plans that qualify for “grandfathered” status by meeting criteria such as abstaining from plan changes since the date of March 23, 2010); the size of employer, 26 U.S.C. § 4980H(c)(2)(A) (exempting employers with less than 50 employees); a non-profit company which qualifies as a “religious employer,” 45 C.F.R. § 147.130 (a)(iv)(A) and (B) (exempting non-profit companies which adopt certain hiring practices and exist to further the organization’s religious doctrine); and individuals of certain religions which disapprove of insurance in its entirety such as the Muslim or Amish religion, 26 U.S.C. § 5000A(d)(2)(A)(i)(ii) (exempting members of “recognized religious sect or division” that conscientiously object to acceptance of public or private insurance funds).
Neither of Plaintiffs’ health insurance plans are “grandfathered” and are subject to the provisions of the HHS Mandate as soon as August 1, 2012. (Leipold Decl. at ¶ 7; DiCresce Decl. at ¶¶ 10-12; Hunt Decl. at ¶ 18; Weingartz Decl. at ¶ 30).2 Furthermore, Plaintiffs do not
2 Plaintiff Legatus’ health care plan is not a grandfathered plan as: (1) the health care plan does not include the required “disclosure of grandfather status” statement; (2) Legatus does not take the position that its health care plan is a grandfathered plan and thus does not maintain the
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2:12-cv-12061-RHC-MJH Doc # 9 Filed 07/25/12 Pg 10 of 25 Pg ID 89
qualify for the “religious employer” exemption contained in 45 C.F.R. § 147.130 (a)(iv)(A) and
(B) and therefore do not fall under any “safe harbor provisions,” which would delay compliance
with the HHS Mandate for one year. 3 The HHS Mandate indicates that the Health Resources
and Services Administration (“HRSA”) “may” grant religious exemptions to certain religious
employers. 45 C.F.R. § 147.130(a)(iv)(A). Plaintiffs, such as Plaintiff Weingartz Supply
Company and Daniel Weingartz, cannot be considered for such an exemption as Weingartz
Supply Company is a for-profit business. (Weingartz Decl. at ¶¶ 3, 28-32). Furthermore,
Plaintiff Legatus fails to meet the narrow qualifications for the religious exemption. (Hunt Decl.
at ¶¶ 19-20; Leipold Decl. at ¶¶ 7, 10). Due to the size of Plaintiff Weingartz Supply Company,
after August 1, 2012, Plaintiffs face per employee fines for non-compliance with the HHS
Mandate. 26 U.S.C. § 4980H; (Weingartz Decl. at ¶ 28; Hunt Decl. at ¶ 36; DiCresce Decl. at ¶
9, 14).
records necessary to verify, explain, or clarify its status as a grandfathered plan nor will it make such records available for examination upon request; and (3) the health care plan has an increase in a percentage cost-sharing requirement measured from March 23, 2010. See 42 U.S.C. § 18011(a)(2); 26 C.F.R. § 54.9815-1251T; 29 C.F.R. § 2590.715-1251; 45 C.F.R. §147.140; (Hunt Decl. at ¶ 18).
Plaintiff Weingartz Supply Company’s health care plan is not a grandfathered plan as: (1) Plaintiffs do not take the position that the plan is a grandfathered plan and do not maintain the records necessary to verify, explain, or clarify its status as a grandfathered plan nor will it make such records available for examination upon request; and (2) the health care plan has an increase in a percentage cost-sharing requirement measured from March 23, 2010. See 42 U.S.C. § 18011(a)(2); 26 C.F.R. § 54.9815-1251T; 29 C.F.R. § 2590.715-1251; 45 C.F.R. §147.140; (DiCresce Decl. at ¶ 11). (See also DiCresce Decl. at ¶ 12 (“Plaintiff Weingartz Supply Company’s health care plan is no longer grandfathered due to plan design changes. The plan in place on March 23, 2010 included a $2,000 deductible. The deductible now is $3,100.”))
3 The HHS Mandate allows HRSA to grant exemptions for “religious employers” who “meet[ ] all of the following criteria: (1) The inculcation of religious values is the purpose of the organization. (2) The organization primarily employs persons who share the religious tenets of the organization. (3) The organization serves primarily persons who share the religious tenets of the organization. (4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 45 C.F.R. § 147.130(a)(iv)(B).
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On January 20, 2012, Defendant Sebelius announced that there would be no change to the religious exemption. (Ex. 6). She added that “[n]onprofit employers who, based on religious beliefs, do not currently provide contraceptive coverage in their insurance plan, will be provided an additional year, until August 1, 2013, to comply with the new law,” on the condition that those employers certify they qualify for the extension. (Ex. 6). This announcement provided no relief to the Plaintiffs. (Leipold Decl. at ¶¶7, 10; DiCresce Decl. at ¶¶ 10-12; Hunt Decl. at ¶¶ 28-34; Weingartz Decl. at ¶ 30).
At the same time, however, Sebelius announced that HHS “intend[s] to require employers that do not offer coverage of contraceptive services to provide notice to employees, which will also state that contraceptive services are available at sites such as community health centers, public clinics, and hospitals with income-based support,” inherently acknowledging that contraceptive services are readily available without mandating Plaintiffs subsidize them. (Ex. 6). Yet, Defendants have forced the Plaintiffs to face this decision: comply with their deeply held religious beliefs or comply with federal law. (Weingartz Decl. at ¶¶ 33-39; Hunt Decl. at ¶¶ 2834; DiCresce Decl. at ¶¶ 14-16).
ARGUMENT The factors to be weighed before issuing a TRO are the same as those considered for issuing a preliminary injunction. See, e.g., Workman v. Bredesen, 486 F.3d 896, 904-05 (6th Cir. 2007); Southerland v. Fritz, 955 F. Supp. 760, 761 (E.D. Mich. 1996). The standard for issuing a preliminary injunction in this Circuit is well established. In Connection Distributing Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998), the court stated: In determining whether or not to grant a preliminary injunction, a district court considers four factors: (1) the plaintiff’s likelihood of success on the merits; (2) whether the plaintiff could suffer irreparable harm without the injunction; (3)
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whether granting the injunction will cause substantial harm to others; and (4) the impact of the injunction on the public interest. Id.; see also Hamilton’s Bogarts, Inc. v. Michigan, 501 F.3d 644, 649 (6th Cir. 2007). Typically, the reviewing court will balance these factors, and no single factor will necessarily be determinative of whether or not to grant the injunction. Connection Distributing Co., 154 F.3d at 288. However, because this case deals with a violation of Plaintiffs’ First Amendment rights, the crucial and often dispositive factor is whether Plaintiffs are likely to prevail on the merits. Id. A. Plaintiffs’ Likelihood of Success on the Merits It is not surprising that in our country founded by individuals, who sought refuge from religious persecution, the Supreme Court of our country has succinctly avowed, If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (emphasis added). The statement written by Justice Jackson in his majority opinion is considered one of the Court's greatest statements about our fundamental freedoms established by the Bill of Rights. It is upon this backdrop, and resting upon this body of jurisprudence built upon deference to the inalienable freedom of religion, that the constitutionality of the HHS Mandate must be decided.
i. The HHS Mandate violates the Religious Freedom Restoration Act. Congress enacted the Religious Freedom Restoration Act of 1993, 107 Stat. 1488, as amended, 42 U.S.C. § 2000bb et seq. (hereinafter “RFRA”), in response to Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990), where, in upholding a generally applicable law that burdened the sacramental use of peyote, the Supreme Court held that the First Amendment's Free Exercise Clause did not require the court to engage in a case-bycase assessment of the religious burdens imposed by facially constitutional laws, id. at 883-90.
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Congress, by enacting RFRA three years after its decision in Smith, purposefully adopted a statutory rule comparable to the constitutional rule rejected in Smith.
RFRA strictly prohibits the Federal Government from substantially burdening a person's exercise of religion, "even if the burden results from a rule of general applicability," 42 U.S.C. § 2000bb-1(a), except when the Government can "demonstrate[] that application of the burden to the person--(1) [furthers] a compelling government interest; and (2) is the least restrictive means of furthering that . . . interest." 42 U.S.C. § 2000bb-1(b). See also Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) (holding that RFRA applies to the federal government).
In its formulation of RFRA, Congress expressly adopted the compelling interest test of Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972). In both cases, the Court “looked beyond broadly formulated interests justifying the general applicability of government mandates, scrutinized the asserted harms, and granted specific exemptions to particular religious claimants.” Gonzales at 431, see also Yoder at 213, 221, 236; Sherbert at 410. In Sherbert, the Court held that the State’s denial of unemployment benefits to an employee who refused to work on Saturdays because of her religious beliefs was an impermissible burden on her free exercise of religion because it “force[d] her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.” Id. at 404. In Sherbert the court held that the government could not impose the same kind of burden upon the free exercise of religion as it would impose a fine against noncompliant parties of the law. Id. at 402 (“Government may neither compel affirmation of a repugnant belief, nor penalize or discriminate against individuals
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or groups because they hold religious views abhorrent to the authorities, nor employ the taxing power to inhibit the dissemination of particular religious views.”) (internal citations omitted).
In Yoder, Amish and Mennonite parents of teenaged children held religious beliefs that prohibited them from sending their children to high school in violation of Wisconsin law. Yoder at 207. Each parent was fined $5 per child for failing to comply with state law for not sending their children to school beyond the eighth grade in accordance with their sincerely held religious belief that “higher learning tends to develop values they reject as influences that alienate man from God.” Id. at 208-13. The Court held that the impact of Wisconsin law, while recognizing the "paramount" interest in education that the law sought to promote, impermissibly compelled the parents to perform acts undeniably at odds with the fundamental tenets of their religious beliefs. Id. at 218, 213, 221; see also Braunfeld v. Brown, 366 U.S. 599, 605 (1961). The Court found that this compulsion “carries with it precisely the kind of objective danger to the free exercise of religion that the First Amendment was designed to prevent,” Yoder at 218; the same constitutionally forbidden compulsion is before the court in this case.
In accordance with the Supreme Court rulings in Sherbert and Yoder, with the plain language of RFRA expressly enacted by Congress to protect religious freedom, the HHS Mandate substantially burdens the Plaintiffs’ sincere exercise of religion. Furthermore, the federal government cannot "demonstrate[] that application of the burden to the person--(1) [furthers] a compelling government interest; and (2) is the least restrictive means of furthering that interest." 42 U.S.C. § 2000bb-1(b).
Pursuant to the teachings of the Catholic Church, Plaintiffs’ sincerely held religious beliefs prohibit them from providing or purchasing health insurance coverage for contraception, abortion, abortifacients, or related education and counseling. Plaintiffs’ compliance with these
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beliefs is a religious exercise. The HHS Mandate creates government-imposed coercive pressure on Plaintiffs to purchase insurance and provide contraception, abortion, and abortifacients—or in other words, to change or violate their beliefs. By failing to provide an exemption for the Plaintiffs’ religious beliefs, the HHS Mandate not only exposes Plaintiff Weingartz Supply Company and Plaintiff Daniel Weingartz to substantial per employee fines for their religious exercise—roughly $2,000 annually per employee, a fine significantly more severe than the $5 per student fine struck down by the Court in Yoder—, but also exposes all Plaintiffs to substantial competitive disadvantages if they are no longer permitted to offer or purchase health insurance due to their religious beliefs.
The HHS Mandate imposes a substantial burden on Plaintiffs’ religious exercise by forcing Plaintiffs to violate their deeply held religious beliefs and the teachings of the Catholic Church to which they belong. The HHS Mandate furthers no compelling governmental interest and is not narrowly tailored to any compelling governmental interest, as contraceptives are currently readily available through other means without forcing the Plaintiffs to provide them.
Forcing the Plaintiffs to provide and fund health insurance which makes contraceptives and abortifacients available to their employees at best would serve the interest of marginally increasing access to contraceptives and abortifacients. Defendant Kathleen Sebelius herself has admitted that contraceptive services are already readily available “at sites such as community health centers, public clinics, and hospitals with income-based support.” Physicians and pharmacies have traditionally also provided contraceptive and abortifacient services. There is no compelling reason for the HHS Mandate to take the matter one step further by forcing employers, such as the Plaintiffs, objecting upon sincere religious grounds to subsidize these services through the insurance plans they sponsor. Furthermore, the HHS Mandate fails to
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provide the least restrictive means of furthering Defendants’ stated interests of providing contraceptives and abortifacients, as Defendant Health and Human Services has carved out a number of exemptions for secular purposes such as size of employer, the age and grandfathered status of a health insurance plan, waivers for high grossing employers, inter alia. The HHS Mandate imminently threatens violation of the Plaintiffs’ rights secured to them by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.
ii. The HHS Mandate violates the First Amendment to the United States Constitution, Free Exercise Clause.
The First Amendment prohibits the government from making any law "respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech." U.S. Const. amend. I. Under the First Amendment, the government may not impose special restrictions, prohibitions, or disabilities on the basis of religious beliefs. See generally McDaniel v. Paty, 435 U.S. 618 (1978). “The Free Exercise Clause categorically prohibits government from regulating, prohibiting, or rewarding religious beliefs as such.” Id. at 626. And as the Supreme Court acknowledged, “This principle that government may not enact laws that suppress religious belief or practice is . . . well understood. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 523 (1993).
Unquestionably, the First Amendment protects Plaintiffs’ right to express and exercise their religious beliefs. Under the Free Exercise Clause, the Supreme Court has ruled that the government may only pass a law that burdens certain religious exercises when the law is facially neutral and of general applicability. Id. at 531 (discussing, when not subject to the scrutiny and analysis of RFRA, a facially neutral law of general applicability is permissible notwithstanding any incidental burdens it imposes, so long as the law passes rational basis review). However, when a law burdens religious exercise because it is not actually neutral or
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generally applicable it must be "justified by a compelling governmental interest" and be "narrowly tailored to advance that interest.” Id. at 531-32 (citing Employment Div., Dep't of Human Res. of Ore. v. Smith, 494 U.S. 872 (1990)); see also id. at 547 ("It is established in our strict scrutiny jurisprudence that 'a law cannot be regarded as protecting an interest 'of the highest order' . . . when it leaves appreciable damage to that supposedly vital interest unprohibited'”) (internal quotation and citation omitted).
In Church of the Lukumi, supra, the City of Hialeah enacted an ordinance prohibiting the public sacrifice of animals. Id. at 527. The ordinance also contained exemptions for the slaughtering of animals raised for food purposes and for sale in accordance with state law. Id. at 528. The ordinance had the stated purpose of promoting “public health, safety, welfare, and the morals of the community” and carried a maximum fine of $500. Id. at 528. The ordinance, however, prevented members of the church of Santeria from engaging in a principle aspect of their religious worship, which was the public, sacrificial killing of animals. Id. at 524-25. This practice was known to the Defendant prior to the enactment of the ordinance. Id. at 526-27.
In deciding that the ordinance was not neutral nor generally applicable, the Court examined whether the law "infringe[d] upon or restrict[ed] practices because of their religious motivation," or "in a selective manner impose[d] burdens only on conduct motivated by religious belief." Id. at 533, 543. The Court emphasized that the Free Exercise Clause “forbids subtle departures from neutrality, and covert suppression of particular religious beliefs. Id. at 534 (internal quotations and citations omitted).
The Court in Church of Lukumi further adopted the reasoning from Smith that “in circumstances in which individualized exemptions from a general requirement are available, the government ‘may not refuse to extend that system to cases of ‘religious hardship’ without
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compelling reason.” Id. at 537 (quoting Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. at 884; Bowen v. Roy, 476 U.S. 693, 708 (1986) (opinion of Burger, C.J.)
Likewise, in the instant case, the HHS Mandate cannot avoid strict scrutiny as the law is not neutral nor generally applicable and the Defendants have set forth a number of individualized exemptions from the general requirement. Despite being informed in detail of the imposition on Catholic belief beforehand, Defendants designed the Mandate and the religious exemptions to the Mandate in a way that made it impossible for Plaintiffs to comply with their religious beliefs. By design, the Defendants imposed the Mandate on some religious organizations or religious individuals but not on others, resulting in discrimination among religions. The Defendants have created a number of categorical exemptions and individualized exemptions, none of which alleviate the chill imposed on the Plaintiffs’ free exercise of religion. The Affordable Care Act and the HHS Mandate include exemptions for:
 Individual members of a “recognized religious sect or division” that conscientiously object to acceptance of public or private insurance funds in their totality, such as members of the Islamic faith or the Amish. 26 U.S.C. § 5000A(d)(2)(A)(i) and (ii).
 Employers with fewer than 50 full time employees. 26 USC § 4980H(c)(2)(B)(i). While employers with more than 50 full time employees must provide federal government-approved health insurance or pay substantial per-employee fines. 26 U.S.C. § 4980H.
 Employers with health care plans that are considered to be “grandfathered,” which, amongst meeting other criteria, have been in place and remain unchanged since March 23, 2010. 42 U.S.C. § 18011(a)(2); 26 C.F.R. § 54.9815-1251T; 29 C.F.R. § 2590.715-1251; 45 C.F.R. § 147.140.
 Non-profit employers who qualify under the narrow exemption of a “religious employer.” 45 C.F.R. § 147.130 (a)(iv)(A) and (B).
The HHS Mandate in its exemptions completely fails to address the constitutional and statutory implications on for-profit, secular employers such as Plaintiff Weingartz Supply
18

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Company and Plaintiff Daniel Weingartz. Furthermore, there is no exemption available for a member of the Catholic faith who conscientiously objects to the HHS Mandate on religious grounds. The HHS Mandate vests the Health Resources and Services Administration with unbridled discretion in deciding whether to allow exemptions to some, all or no organizations meeting the definition of “religious employers” or religious individuals.
For these reasons and those articulated in the previous section of this brief, the substantial burden the Defendants anchor onto the Plaintiffs’ religious exercise, is not narrowly tailored to any compelling governmental interest. The HHS Mandate violates the Plaintiffs’ rights secured to them by the Free Exercise Clause of the First Amendment to the United States Constitution.
iii. The HHS Mandate violates the First Amendment to the Constitution, Free Speech and Expressive Association.
As the United States Supreme Court has long recognized, “spreading one’s religious beliefs” and “preaching the Gospel” are activities protected by the First Amendment. See Murdock v. Pennsylvania, 319 U.S. 105, 110 (1943). Supreme Court precedent also “establishes that private religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression.” Capitol Square Rev. & Adv. Bd. v. Pinette, 515 U.S. 753, 760 (1995).
Additionally, “[a]mong the rights protected by the First Amendment is the right of individuals to associate to further their personal beliefs. While the freedom of association is not explicitly set out in the Amendment, it has long been held to be implicit in the freedoms of speech, assembly, and petition.” Healy v. James, 408 U.S. 169, 181 (1972) (citations omitted). The Sixth Circuit echoed this fundamental understanding of the right to association by stating, “Freedom to engage in association for the advancement of beliefs and ideas is an inseparable
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aspect of freedom of speech.” Connection Distributing Co., 154 F.3d at 295 (citing NAACP v. Alabama, 357 U.S. 449, 460 (1958).
Indeed, “implicit in the right to engage in activities protected by the First Amendment” is “a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984); see also id. at 636 (O’Connor, J., concurring) (“Even the training of outdoor survival skills or participation in community service might become expressive when the activity is intended to develop good morals, reverence, patriotism, and a desire for self-improvement.”).
The government traditionally has not been allowed to force a person—who objects to an activity or conduct on moral grounds—to subsidize, and thereby endorse, conduct that he believes, teaches, or otherwise states is wrong. See, e.g., Keller v. State Bar of California, 496 U.S. 1 (1990) (holding that the government cannot compel state bar members to finance political and ideological activities of which they disagree); Abood v. Detroit Board of Education, 431 U.S. 209 (1977) (holding that the government cannot require state employees to provide financial support for ideological union activities they oppose which are unrelated to collective bargaining); Wooley v. Maynard, 430 U.S. 705 (1977) (enjoining a state law which required that plaintiff affix the motto “Live Free or Die” on his license plate when the plaintiff, who was a Jehovah’s witness, found the motto morally repugnant).
Indeed, the First Amendment protects the right “to hold a point of view different from the majority and to refuse to foster . . . an idea they find morally objectionable.” Wooley v. Maynard, 430 U.S. 705, 715 (1977). Therefore, Plaintiffs should not be compelled by the government to provide education and counseling against their deeply held beliefs. Plaintiffs should not be compelled to subsidize and endorse private conduct that it objects to—especially when Plaintiffs
20

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have chosen to express their faith through religious speech and assembly. Plaintiffs will be hardpressed to effectively and persuasively communicate the Church’s teachings that contraception, abortion, and abortifacients are immoral, yet simultaneously pay for and provide contraceptives. The precepts are irreconcilable.
Based on the speech at issue here (expressing one’s faith), Plaintiffs are also protected by “the First Amendment’s expressive associational right.” See Boy Scouts of America v. Dale, 530 U.S. 640, 650 (2000) (finding that the Boy Scouts are protected by the First Amendment and stating, “It seems indisputable that an association that seeks to transmit . . . a system of values engages in expressive activity”). In Boy Scouts of America, the Supreme Court held that “freedom of expressive association” under the Free Speech Clause prohibited the enforcement of a public accommodation law when it required the Boy Scouts be led by a homosexual scoutmaster. Id. at 648. The Supreme Court held that compelling the enforcement of the public accommodation law would “force the organization to send a message, both to the youth members and the world, that the [organization] accepts homosexual conduct as a legitimate form of behavior.” Id. at 653. Correspondingly, in Hurley v. Irish-American Gay, Lesbian & Bisexual Group, 515 U.S. 557 (1995), the Supreme Court held that the First Amendment gave the plaintiffs, organizers of a private St. Patrick’s Day parade, the right to exclude a homosexual group from the parade, when the plaintiffs believed that the group’s presence would communicate a message about homosexual conduct to which the plaintiffs objected. The First Amendment protected the plaintiffs’ right “not to propound a particular point of view,” id. at 575, and the Supreme Court protected the “principle of speaker’s autonomy,” id. at 580.
Since the First Amendment through its free speech and expressive association provisions protects nonreligious organizations based upon moral objections to exclude individuals whose
21

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mere presence was thought to send an objectionable message, then reasonably the Court should protect the free speech and association of the Plaintiffs who object to subsidizing and supporting certain messages and conduct based upon their deeply held religious beliefs. The compelled subsidization and support of contraceptives, abortion, and abortifacients in the instant case strikes at the heart of one’s ability to communicate unambiguous moral teachings and religious beliefs, and one’s ability to form associations that maintain adherence to those teachings.
The Defendants cannot compel speech and association they find favorable, but is volatile of the Plaintiffs’ religious beliefs. Based upon this, and all other reasons articulated in this brief, the Plaintiffs have demonstrated a substantial likelihood of prevailing on the merits of their claims.
B. Irreparable Harm to Plaintiffs without the TRO. Plaintiffs will be irreparably harmed without the TRO. The HHS Mandate deprives
Plaintiffs of their fundamental First Amendment rights. And it is well established that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976); see also Connection Distributing Co., 154 F.3d at 288 (quoting Elrod); Newsome v. Norris, 888 F.2d 371, 378 (6th Cir. 1989) (“The Supreme Court has unequivocally admonished that even minimal infringement upon First Amendment values constitutes irreparable injury sufficient to justify injunctive relief.” (citing Elrod)).
Additionally, Plaintiffs will suffer financial harm. Plaintiff Legatus obtains its revenue through its membership of faithful Catholic individuals. Plaintiff Legatus engages in outreach and education regarding the teachings of the Catholic Church which contradict with the provisions of the HHS Mandate. Plaintiff Daniel Weingartz and Weingartz Supply Company
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faces per employee fines for noncompliance with the HHS Mandate. All Plaintiffs face substantial competitive disadvantages if they are no longer permitted to offer or purchase health insurance due to remaining faithful and exercising their religious beliefs. Plaintiffs will incur costs and expenses due to the enforcement of the HHS Mandate. If a TRO does not issue, Plaintiffs will be forced to violate their religious beliefs or potentially forfeit health insurance.
C. Whether Granting the TRO Will Cause Substantial Harm to Others. In this case, the likelihood of harm to Plaintiffs is substantial because Plaintiffs’ First
Amendment freedoms and Plaintiffs’ freedom of religion are at issue, and the deprivation of these rights, even for minimal periods, constitutes irreparable injury.
On the other hand, if Defendants are restrained from enforcing the HHS Mandate against Plaintiffs, Defendants will suffer no harm because the exercise of constitutionally protected expression can never harm any of the Defendants’ or others’ legitimate interests. See Connection Distributing Co., 154 F. 3d at 288. The Defendants already exempt a number of other employers and individuals from the HHS Mandate. Allowing the Plaintiffs an exemption in order to stop a violation of their deeply held religious beliefs fails to cause harm to the Defendants. Any legitimate interest asserted by Defendants or others will remain fully protected by existing provisions of law.
In the final analysis, the question of harm to others as well as the impact on the public interest “generally cannot be addressed properly in the First Amendment context without first determining if there is a constitutional violation. . . .” Connection Distribution Co., 154 F.3d at 288. For if Plaintiffs show that their First Amendment rights have been violated, then the harm to others is inconsequential. As demonstrated, the enforcement of Defendants’ HHS Mandate on Plaintiffs violates the First Amendment; therefore, any “harm” to others is inconsequential.
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D. The Impact of the TRO on the Public Interest. The impact of the TRO on the public interest turns in large part on whether Plaintiffs’
Constitutional rights are violated by the enforcement of Defendants’ HHS Mandate. As the Sixth Circuit noted, “[I]t is always in the public interest to prevent the violation of a party’s Constitutional rights.” G & V Lounge, Inc. v. Michigan Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994); see also Dayton Area Visually Impaired Persons, Inc. v. Fisher, 70 F.3d 1474, 1490 (6th Cir. 1995) (stating “the public as a whole has a significant interest in ensuring equal protection of the laws and protection of First Amendment liberties”). As noted previously, the enforcement of Defendants’ HHS Mandate is a direct violation of Plaintiffs’ fundamental rights protected by the First Amendment. Therefore, it is in the public interest to issue the TRO.
In the final analysis, the Defendants’ HHS Mandate violates the Plaintiffs’ fundamental Constitutional rights. The HHS Mandate forces the Plaintiffs to violate their deeply held religious beliefs of their Catholic faith. Without a TRO, Plaintiffs will be irreparably harmed.
CONCLUSION Plaintiffs hereby request that this court issue the requested TRO.
Respectfully submitted, s/ Erin Mersino_________________ THOMAS MORE LAW CENTER Erin Mersino, Esq. (P70886) 24 Frank Lloyd Wright Blvd. P.O. Box 393 Ann Arbor, MI 48106 (734) 827-2001 emersino@thomasmore.org Counsel for Plaintiffs
24

2:12-cv-12061-RHC-MJH Doc # 9 Filed 07/25/12 Pg 25 of 25 Pg ID 104 CERTIFICATE OF SERVICE
I hereby certify that on July 25, 2012, a copy of the foregoing was filed electronically. Notice of this filing will be sent to all parties for whom counsel has entered an appearance by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s system. I certify that a copy of the foregoing has been served by ordinary U.S. Mail upon all parties for whom counsel has not yet entered an appearance electronically: None. I further certify that due to the expeditious nature of the TRO Request, I emailed the foregoing to counsel at Ethan.P.Davis@usdoj.gov and faxed same to (202) 616-8470.
THOMAS MORE LAW CENTER /s/ Erin Mersino Erin Mersino, Esq. (P70886)
25

 
 2:12-cv-12061-RHC-MJH Doc # 13 Filed 08/15/12 Pg 1 of 39 Pg ID 164

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

LEGATUS; WEINGARTZ SUPPLY

)

COMPANY; and DANIEL WEINGARTZ, )

President of Weingartz Supply Company, )

)

Plaintiffs,

)

v.

)

)

KATHLEEN SEBELIUS, Secretary of the ) Case No.: 2:12-cv-12061-RHC-MJH

United States Department of Health and

)

Human Services; UNITED STATES

) MOTION AND BRIEF FOR PRELIMINARY

DEPARTMENT OF HEALTH AND

) INJUNCTION PURSUANT TO FED. R. CIV.

HUMAN SERVICES; HILDA SOLIS,

) P. 65(a)

Secretary of the United States Department of )

Labor; UNITED STATES DEPARTMENT ) Judge Robert H. Cleland

OF LABOR; TIMOTHY GEITHNER,

)

Secretary of the United States Department of ) Magistrate Judge Michael Hluchaniuk

the Treasury; and UNITED STATES

)

DEPARTMENT OF THE TREASURY,

)

)

Defendants.

)

THOMAS MORE LAW CENTER Richard Thompson, Esq. (P21410) Erin Mersino, Esq. (P70886) 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, MI 48106 emersino@thomasmore.org (734) 827-2001
LAW OFFICE OF CHARLES S. LIMANDRI Charles S. Limandri, Esq. (CA Bar No. 110841) Teresa Mendoza, Esq. (CA Bar No. 185820) P.O. Box 9120 Rancho Santa Fe, CA 92067 Tel (858) 759-9930
Attorneys for Plaintiffs

STUART F. DELERY Acting Assistant Attorney General
BARBARA L. McQUADE United States Attorney Eastern District of Michigan
SHEILA M. LIEBER Deputy Branch Director
ETHAN P. DAVIS Trial Attorney Civil Division Federal Programs Branch United States Department of Justice 20 Massachusetts Ave. NW Washington, DC 20001 Tel: (202) 514-9242 Fax: (202) 616-8470 E-Mail: Ethan.P.Davis@usdoj.gov

Attorneys for Defendants

2:12-cv-12061-RHC-MJH Doc # 13 Filed 08/15/12 Pg 2 of 39 Pg ID 165
PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
NOW COME Plaintiffs Legatus, Weingartz Supply Company, and Daniel Weingartz, by and through their undersigned counsel, who hereby move this Court to enter a Preliminary Injunction pursuant to Fed. R. Civ. P. 65(a) in order to prevent immediate irreparable injury to Plaintiffs’ fundamental rights and interests.
In support of their motion, Plaintiffs rely upon the pleadings and papers of record, as well as their brief filed with this motion, and the declarations and exhibits attached hereto. For the reasons set forth more fully below, Plaintiffs hereby request that this court enjoin the enforcement of Defendants’ Health and Human Services Mandate (hereinafter “HHS Mandate”) which violates Plaintiffs’ rights guaranteed by the First Amendment to the United States Constitution and the Religious Freedom Restoration Act of 1993, 107 Stat. 1488, as amended, 42 U.S.C. § 2000bb et seq. For the purposes of this preliminary injunction, the Plaintiffs focus solely on Claims I-III and V-VIII of their complaint; however, Plaintiffs do not forfeit any of the claims alleged in their complaint.
Prior to the filing of this Motion for Preliminary Injunction, the attorneys for the Plaintiffs and the Defendants met and conferred several times, and entered a stipulated proposed order in which the Plaintiffs expressly sought the injunctive relief of the Court. This resulted in an order directing Plaintiffs to file a motion for preliminary injunction and setting both a briefing and hearing schedule. (Doc. # 11). The Plaintiffs request oral argument on the motion.
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Respectfully submitted this 15th day of August, 2012.
Attorneys for Plaintiffs:
THOMAS MORE LAW CENTER s/ Erin Mersino_________________ Erin Mersino, Esq. (P70886) 24 Frank Lloyd Wright Blvd. P.O. Box 393 Ann Arbor, MI 48106 (734) 827-2001 emersino@thomasmore.org s/ Richard Thompson_____________ Richard Thompson, Esq. (P21410) 24 Frank Lloyd Wright Blvd. P.O. Box 393 Ann Arbor, MI 48106 (734) 827-2001 rthompson@thomasmore.org
3

2:12-cv-12061-RHC-MJH Doc # 13 Filed 08/15/12 Pg 4 of 39 Pg ID 167 CERTIFICATE OF SERVICE
I hereby certify that on August 15, 2012, a copy of the foregoing was filed electronically. Notice of this filing will be sent to all parties for whom counsel has entered an appearance by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s system. I certify that a copy of the foregoing has been served by ordinary U.S. Mail upon all parties for whom counsel has not yet entered an appearance electronically: None
THOMAS MORE LAW CENTER s/ Erin Mersino_________________ Erin Mersino, Esq. (P70886)
4

2:12-cv-12061-RHC-MJH Doc # 13 Filed 08/15/12 Pg 5 of 39 Pg ID 168

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

LEGATUS; WEINGARTZ SUPPLY

)

COMPANY; and DANIEL WEINGARTZ, )

President of Weingartz Supply Company, )

)

Plaintiffs,

)

v.

)

)

KATHLEEN SEBELIUS, Secretary of the ) Case No.: 2:12-cv-12061-RHC-MJH

United States Department of Health and

)

Human Services; UNITED STATES

) MOTION AND BRIEF FOR PRELIMINARY

DEPARTMENT OF HEALTH AND

) INJUNCTION PURSUANT TO FED. R. CIV.

HUMAN SERVICES; HILDA SOLIS,

) P. 65(a)

Secretary of the United States Department of )

Labor; UNITED STATES DEPARTMENT ) Judge Robert H. Cleland

OF LABOR; TIMOTHY GEITHNER,

)

Secretary of the United States Department of ) Magistrate Judge Michael Hluchaniuk

the Treasury; and UNITED STATES

)

DEPARTMENT OF THE TREASURY,

)

)

Defendants.

)

THOMAS MORE LAW CENTER Richard Thompson, Esq. (P21410) Erin Mersino, Esq. (P70886) 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, MI 48106 emersino@thomasmore.org (734) 827-2001
LAW OFFICE OF CHARLES S. LIMANDRI Charles S. Limandri, Esq. (CA Bar No. 110841) Teresa Mendoza, Esq. (CA Bar No. 185820) P.O. Box 9120 Rancho Santa Fe, CA 92067 Tel (858) 759-9930
Attorneys for Plaintiffs

STUART F. DELERY Acting Assistant Attorney General
BARBARA L. McQUADE United States Attorney Eastern District of Michigan
SHEILA M. LIEBER Deputy Branch Director
ETHAN P. DAVIS Trial Attorney Civil Division Federal Programs Branch United States Department of Justice 20 Massachusetts Ave. NW Washington, DC 20001 Tel: (202) 514-9242 Fax: (202) 616-8470 E-Mail: Ethan.P.Davis@usdoj.gov

Attorneys for Defendants

2:12-cv-12061-RHC-MJH Doc # 13 Filed 08/15/12 Pg 6 of 39 Pg ID 169

TABLE OF CONTENTS

Page

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

TABLE OF AUTHORITIES .......................................................................................................... ii

INTRODUCTION ...........................................................................................................................1

FACTUAL BACKGROUND ..........................................................................................................3

ARGUMENT .................................................................................................................................12

A. Plaintiffs’ Likelihood of Success on the Merits.................................................................13
i. The HHS Mandate violates the Religious Freedom Restoration Act ..........................................................................................................................13
1. The HHS Mandate substantially burdens Plaintiffs’ free exercise of religion...................................................................................................15
2. The HHS Mandate fails to use the least restrictive means and fails to justify a compelling interest...........................................................16
ii. The HHS Mandate violates the First Amendment to the United States Constitution, Free Exercise Clause ........................................................................18
1. The HHS Mandate is not neutral nor generally applicable, and fails strict scrutiny ...............................................................................20
iii. The HHS Mandate violates the First Amendment to the Constitution, Free Speech and Expressive Association...............................................................22
B. Plaintiffs Will Suffer Irreparable Harm to Plaintiffs without Injunctive Relief ................25
C. Granting a Preliminary Injunction Will Cause No Substantial Harm to Others ................26
D. The Impact of the Preliminary Injunction on the Public Interest Favors Granting the Injunction ......................................................................................................26
CONCLUSION ..............................................................................................................................27
CERTIFICATE OF SERVICE ......................................................................................................29

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Cases

TABLE OF AUTHORITIES

Page

Abood v. Detroit Board of Education, 431 U.S. 209 (1977).......................................................................................................................23
Bowen v. Roy, 476 U.S. 693 (1986).......................................................................................................................20
Boy Scouts of America v. Dale, 530 U.S. 640 (2000).......................................................................................................................24
Braunfeld v. Brown, 366 U.S. 599 (1961).......................................................................................................................15
Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729 (June 27, 2011).....................................................................................................17
Capitol Square Rev. & Adv. Bd. v. Pinette 515 U.S. 753 (1995).......................................................................................................................22
Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).......................................................................................................1, 18, 19, 20
City of Boerne v. Flores, 521 U.S. 507 (1997).......................................................................................................................17
Connection Distributing Co. v. Reno, 154 F.3d 281 (6th Cir. 1998) .................................................................................12, 13, 22, 25, 26
Dayton Area Visually Impaired Persons, Inc. v. Fisher, 70 F.3d 1474 (6th Cir. 1995) .........................................................................................................27
Elrod v. Burns, 427 U.S. 347 (1976).......................................................................................................................25
Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990)...........................................................................................................13, 19, 20
Florida ex rel. Atty. Gen., et al. v. U.S. Dept. of Health and Human Services, 648 F.3d 1235 (11th Cir. 2011) ......................................................................................................10
G & V Lounge, Inc. v. Michigan Liquor Control Comm’n, 23 F.3d 1071 (6th Cir. 1994) .........................................................................................................26
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2:12-cv-12061-RHC-MJH Doc # 13 Filed 08/15/12 Pg 8 of 39 Pg ID 171
Gonzales v. O Centro Espirita Beneficente Uniao de Vegetal, 546 U.S. 418 (2006).......................................................................................................1, 14, 16, 17
Hamilton’s Bogarts, Inc. v. Michigan, 501 F.3d 644 (6th Cir. 2007) .........................................................................................................12
Healy v. James, 408 U.S. 169 (1972).......................................................................................................................22
Hurley v. Irish-American Gay, Lesbian & Bisexual Group, 515 U.S. 557 (1995).......................................................................................................................24
Keller v. State Bar of California, 496 U.S. 1 (1990)...........................................................................................................................23
McDaniel v. Paty, 435 U.S. 618 (1978).......................................................................................................................18
Murdock v. Pennsylvania, 319 U.S. 105 (1943).......................................................................................................................22
NAACP v. Alabama, 357 U.S. 449 (1958).......................................................................................................................22
New York v. United States, 505 U.S. 144 (1992).......................................................................................................................10
Newland, et al. v. Sebelius, et al., No. 12-1123, slip op. (D. Colo. July 27, 2012) ...........................................................14, 16, 17, 20
Newsome v. Norris, 888 F.2d 371 (6th Cir. 1989) .........................................................................................................25
Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925) (1984) ...........................................................................................................10
Roberts v. United States Jaycees, 468 U.S. 609 (1984).......................................................................................................................23
Sherbert v. Verner, 374 U.S. 398 (1963)...........................................................................................................14, 15, 16
Thomas More Law Ctr. v. Obama, 651 F.3d 529 (6th Cir. 2011) .........................................................................................................10
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W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).......................................................................................................................13 Ward v. Polite, 667 F.3d 727 (6th Cir. 2012) .........................................................................................................20 Wisconsin v. Yoder, 406 U.S. 205 (1972)...........................................................................................................14, 15, 16 Wooley v. Maynard, 430 U.S. 705 (1977).......................................................................................................................23
Statutes and Other Authorities 26 U.S.C. § 4980D .........................................................................................................................16 26 U.S.C. § 4980H .............................................................................................................11, 16, 21 26 U.S.C. § 4980H(c)(2)(A) ............................................................................................................7 26 U.S.C. § 4980H(c)(2)(B)(i).......................................................................................................21 26 U.S.C. § 5000A(d)(2)(A)(i) ..................................................................................................7, 21 26 U.S.C. § 5000A(d)(2)(A)(ii) .................................................................................................7, 21 42 U.S.C. § 18011(a)(2).............................................................................................................7, 21 42 U.S.C. § 2000bb .............................................................................................................1, 13, 18 42 U.S.C. § 2000bb-1(a) ...............................................................................................................14 42 U.S.C. § 2000bb-1(b) .........................................................................................................14, 15 42 U.S.C. § 2000cc-5(7)(A) ..........................................................................................................15 42 U.S.C. § 300gg-13 (a)(1)(4)....................................................................................................5, 7
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2:12-cv-12061-RHC-MJH Doc # 13 Filed 08/15/12 Pg 10 of 39 Pg ID 173 Regulations 76 Fed. Reg. 46621 ..........................................................................................................................6 26 C.F.R. § 54.9815-1251T ...................................................................................................7, 8, 21 29 C.F.R. § 2590.715-1251....................................................................................................7, 8, 21 45 C.F.R. § 147.130 .........................................................................................................................6 45 C.F.R. § 147.130(a)(1)(iv) ......................................................................................................5, 6 45 C.F.R. § 147.130(a)(iv)(A) ...............................................................................................7, 8, 21 45 C.F.R. § 147.130(a)(iv)(B) ...............................................................................................7, 8, 21 45 C.F.R. § 147.140 ...............................................................................................................7, 8, 21
Other Authorities http://www.hrsa.gov/womensguidelines......................................................................................5, 6 http://www.nap.edu/openbook.php?record_id=13181&PAGE=217 ...............................................6
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PLAINTIFFS’ BRIEF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
INTRODUCTION Plaintiffs Legatus, Weingartz Supply Company and Daniel Weingartz bring this motion for a preliminary injunction to enjoin the unconstitutional and illegal directives of the HHS Mandate. Currently, the Defendants are forcing businesses and organizations which hold sincerely held religious beliefs to violate those beliefs by supplying contraceptive and abortifacient coverage. Such action blatantly disregards religious freedom and the right of conscience, and is nothing short of irreconcilable with the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (“RFRA”), and the First Amendment. The burden forced on the Plaintiffs cannot be justified by the Defendants as using the least restrictive means or furthering a compelling interest. The Defendants offer numerous secular and even religious exemptions to the HHS Mandate, but fail to offer the same respect to the Catholic beliefs of the Plaintiffs—showing that Defendants either care so little about those professing Catholic beliefs that they will not be bothered to address their concerns or showing that Defendants are patently discriminating against and disrespecting those holding Catholic beliefs. Neither provides the Defendants with a constitutional justification for violating the law. The scheme of exemptions imposed by the Defendants is not neutral nor generally applicable. Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993); Gonzales v. O Centro Espirita Beneficente Uniao de Vegetal, 546 U.S. 418, 432-87 (2006). Defendants additionally seek to violate Plaintiffs’ freedom of speech through the counseling that the HHS Mandate requires.
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Defendants’ illegal mandate poses an urgent threat to the Plaintiffs, forcing the Plaintiffs to comply by January 1, 2013. If this Court does not issue preliminary injunctive relief months prior to that date, Defendants will be irreparably harmed. Plaintiffs must now make decisions to change or terminate their health care plans. Under the HHS Mandate, Plaintiffs are forced to choose between violating their religious beliefs or violating federal law. Weingartz Supply Company and Daniel Weingartz could face penalties for noncompliance of the law with fines of $2,000 per employee per year at minimum. The fines are even more insurmountable if Weingartz Supply Company and Daniel Weingartz decided to offer insurance without the objectionable coverage. If Plaintiffs choose to violate their religious beliefs and offer health insurance in compliance with the Mandate, Plaintiffs and all of their employees will be forced to switch health care plans. These employees may then be forced to switch to an insurance plan they may not want, to potentially switch doctors, and to potentially pay higher premiums.
Undertaking this expensive, burdensome, and time-consuming restructuring of its insurance offerings, which potentially forces Plaintiffs to pay more money, change insurance, and possibly change doctors, is a severe burden on the Plaintiffs, their employees, and their families. The Plaintiffs must begin addressing these issues prior to January 1, 2013. The process of altering an insurance plan—the bid, negotiation, and approval processes, selection of a third party administrator and stop-loss provider, open enrollment period, and production and distribution of plan materials and employee insurance cards—easily takes months to complete. Facing imminent, irreparable harm to their religious freedom and Constitutional rights, Plaintiffs merit preliminary injunctive relief from the HHS Mandate.
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FACTUAL BACKGROUND Plaintiff Legatus is an international, Catholic organization established for the purpose of promoting the study, practice, and spread of the Catholic faith in the business, professional, and personal lives of its members, and is comprised of Chief Executive Officers, Presidents, Managing Partners and Business Owners, with their spouses, from the business community and professional enterprises. (Hunt Decl. at ¶ 2 at Ex. 1; Weingartz Decl. at ¶ 11 at Ex. 2). Plaintiff Legatus is incorporated under the laws of Michigan. (Hunt Decl. at ¶ 1 at Ex. 1). Plaintiff Daniel Weingartz is a member of Legatus and the President of Weingartz Supply Company, a for-profit business incorporated under the laws of Michigan with over 50 full time employees. (Weingartz Decl. at ¶¶ 1-5, 9-10 at Ex. 2; Hunt Decl. at ¶ 9, 25-28 at Ex. 1; DiCresce Decl. at ¶ 9 at Ex. 3). The members of Plaintiff Legatus, including Plaintiff Daniel Weingartz, follow the teachings, mission, and values of the Catholic faith. (Weingartz Decl. at ¶¶ 7, 10-13 at Ex. 2; Hunt Decl. at ¶¶ 6, 7 at Ex. 1). Plaintiff Legatus professes, educates, lectures, gives presentations, and engages in outreach amongst its members and in the community that contraception, abortion, and abortifacients violate the religious beliefs of Plaintiff Legatus and its members, including Plaintiff Daniel Weingartz. (Hunt Decl. at ¶ 7 at Ex. 1). Plaintiff Legatus and its members, including Plaintiff Daniel Weingartz, share sincerely held religious beliefs that forbid them from participating in, paying for, training others to engage in, or otherwise supporting contraception, abortion, and abortifacients. (Hunt Decl. at ¶ 8 at Ex. 1). Plaintiff Legatus and its members, including Plaintiff Daniel Weingartz, cannot provide, fund, or participate in health care insurance which covers artificial contraception, abortion, or
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abortifacients, or related education and counseling, nor provide information or guidance to its employees or its members for the purpose of supporting or providing artificial contraception, abortion, abortifacients or related education and counseling, without violating their deeply held religious beliefs. (Hunt Decl. at ¶¶ 12, 13 at Ex. 1; Weingartz Decl. at ¶¶ 13-17 at Ex. 2).
As practicing Catholics, the Plaintiffs align their beliefs with Pope Paul VI’s 1968 encyclical Humanae Vitae, which states “any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation, whether as an end or as a means”—including contraception—is a grave sin. (Weingartz Decl. at ¶¶ 7, 10-17 at Ex. 2; Hunt Decl. at ¶¶ 6-7, 9-13 at Ex. 1). Plaintiffs subscribe to authoritative Catholic teaching regarding the proper nature of health care and medical treatment. For instance, Plaintiffs believe, in accordance with Pope John Paul II’s 1995 encyclical Evangelium Vitae, that “‘[c]ausing death’ can never be considered a form of medical treatment,” but rather “runs completely counter to the health-care profession, which is meant to be an impassioned and unflinching affirmation of life.” Id. Plaintiffs do not believe that contraception or abortion properly constitute health care, and involve immoral practices and the destruction of innocent human life. (Hunt Decl. at ¶¶ 10-13 at Ex. 1; Weingartz Decl. at ¶¶ 16-17 at Ex. 2).
Due to these beliefs, Plaintiffs designed insurance policies which specifically exclude coverage for contraception, abortion, and abortifacients. (Weingartz Decl. at ¶ 18 at Ex. 2; Hunt Decl. at ¶¶ 14-15 at Ex. 1; Leipold Decl. at ¶ 12-13 at Ex. 4; DiCresce Decl. at ¶ 13 at Ex. 3); (Ex. 5). Plaintiff Daniel Weingartz, on behalf of Plaintiff Weingartz Supply Company, worked with his insurance agent Brown & Brown of Detroit to design its group health insurance plan which specifically excludes abortion, abortifcients, and contraception from its insurance plan. (DiCresce Decl. at ¶¶ 4-8 at Ex. 3; Weingartz Decl. at ¶¶ 18-20 at Ex. 2). Brown & Brown of
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Detroit was able to secure this plan design through a self-funded program, with Blue Cross/Blue Shield of Michigan providing third party administration and stop-loss insurance. (DiCresce Decl. at ¶ 6 at Ex. 3; Weingartz Decl. at ¶¶ 18-20 at Ex. 2).
Plaintiff Legatus receives its health insurance coverage through the Ave Maria Medical Plan, which is a fully insured medical plan provided by insurance issuer Blue Cross/Blue Shield of Michigan (Leipold Decl. at ¶¶ 5-6 at Ex. 4; Hunt Decl. at ¶¶ 14-16 at Ex. 1). Plaintiff Legatus’ insurance policy specifically excludes coverage for voluntary abortions and contraceptive drugs. (Leipold Decl. at ¶ 8 at Ex. 4; Hunt Decl. at ¶¶ 14-16 at Ex. 1).
However since August 1, 2012, Plaintiffs lost the right to make health care insurance decisions in line with their Catholic views. On August 1, 2012, the Health and Human Services Mandate of the Affordable Care Act (“HHS Mandate”) went into effect, which forces Plaintiffs to pay, fund, contribute, or support artificial contraception, abortion, abortifacients or related education and counseling, in violation of their Constitutional rights and deeply held religious beliefs beginning at the end of their plan year. See 45 C.F.R. § 147.130 (a)(1)(iv), as confirmed at 77 Fed. Register 8725 (Feb. 15, 2012), adopting and quoting Health Resources and Services Administration (HRSA) Guidelines, (http://www.hrsa.gov/womensguidelines) (See also Leipold Decl. at ¶¶ 7-11 at Ex. 4; DiCresce Decl. at ¶¶ 10-15 at Ex. 3; Hunt Decl. at ¶ 30-32, 42 at Ex. 1; Weingartz Decl. at ¶ 26 at Ex. 2).
The Affordable Care Act called for health insurance plans to provide coverage and “not impose any cost sharing requirements for . . . with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines” and directed the Secretary of the United States Department of Health and Human Services, Defendant Sebelius, to determine what would constitute “preventative care.” 42 U.S.C § 300gg-13(a)(4). Defendants
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United States Health and Human Services, United States Department of Treasury, and United States Department of Labor, published an interim final rule under the Affordable Care Act. 75 Fed. Reg. 41726 (2010), requiring providers of group health insurance to cover “preventive care” for women as provided in guidelines to be published on a later date. 1 Id. Prior to adopting those guidelines, Defendants accepted public comments. Upon information and belief, a large number of groups filed comments, warning of the potential conscience implications of requiring religious individuals and groups to pay for contraception, abortion, and abortifacients.
On February 15, 2012, Defendant United States Department of Health and Human Services (“HHS”) promulgated the mandate that group health plans include coverage for all Food and Drug Administration-approved contraceptive methods and procedures, patient education, and counseling for all women with reproductive capacity in plan years beginning on or after August 1, 2012 (the “HHS Mandate”). See 45 C.F.R. § 147.130 (a)(1)(iv), as confirmed at 77 Fed. Register 8725 (Feb. 15, 2012), adopting and quoting Health Resources and Services Administration (HRSA) Guidelines, (http://www.hrsa.gov/womensguidelines). All FDAapproved contraceptives included contraception, abortion, and abortifacients such as birthcontrol pills; prescription contraceptive devices, including IUDs; Plan B, also known as the “morning-after pill”; and ulipristal, also known as “ella” or the “week-after pill”; and other drugs, devices, and procedures. (http://www.hrsa.gov/womensguidelines).
1 Defendants directed the Institute of Medicine (“IOM”) to compile recommended guidelines describing which drugs, procedures, and services should be covered as preventative care for women. (http://www.hrsa.gov/womensguidelines). IOM invited select groups to make presentations on the preventive care that should be mandated by all health plans. (http://www.nap.edu/openbook.php?record_id=13181&PAGE=217). No religious groups or groups opposing government-mandated coverage of contraception, abortion, and related education and counseling were invited to present. Defendants adopted the IOM recommendations in full. 76 Fed. Reg. 46621 (published Aug. 3, 2011); 45 C.F.R. § 147.130.
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The HHS Mandate applies to almost all group health plans and health insurance issuers, 42 U.S.C. § 300gg-13 (a)(1),(4), and forces Plaintiffs to provide “preventative care” by making available and subsidizing contraception, abortion, and abortifacients such as the “morning-after pill,” “Plan B,” and “ella.” The HHS Mandate also requires group health care plans and insurance issuers to provide education and counseling for all women beneficiaries with reproductive capacity—even if paying for or providing such “services” violates one’s consciences and deeply held religious beliefs.
The Affordable Health Care Act and the HHS Mandate include a number of exemptions; however, Plaintiffs do not fall under any of these exemptions. (Leipold Decl. at ¶¶ 7-11 at Ex. 4; DiCresce Decl. at ¶¶ 10-15 at Ex. 3; Hunt Decl. at ¶¶ 17-24 at Ex. 1; Weingartz Decl. at ¶¶ 30-33 at Ex. 2). The allowable factors for receiving exemptions under the Affordable Health Care Act include: the age of the plan, 42 U.S.C. § 18011(a)(2); 26 C.F.R. § 54.9815-1251T; 29 C.F.R. § 2590.715-1251; 45 C.F.R. §147.140 (exempting plans that qualify for “grandfathered” status by meeting criteria such as abstaining from plan changes since the date of March 23, 2010); the size of employer, 26 U.S.C. § 4980H(c)(2)(A) (exempting employers with fewer than 50 employees); a non-profit company which qualifies as a “religious employer,” 45 C.F.R. § 147.130 (a)(iv)(A) and (B) (exempting non-profit companies which adopt certain hiring practices and exist to further the organization’s religious doctrine); and individuals of certain religions which disapprove of insurance in its entirety such as the Muslim or Amish religion, 26 U.S.C. § 5000A(d)(2)(A)(i)-(ii) (exempting members of “recognized religious sect or division” that conscientiously object to acceptance of public or private insurance funds).
Neither of Plaintiffs’ health insurance plans is “grandfathered.” (Leipold Decl. at ¶¶ 7-8 at Ex. 4; DiCresce Decl. at ¶¶ 10-12 at Ex. 3; Hunt Decl. at ¶¶ 17-18 at Ex. 1; Weingartz Decl. at
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¶ 30 at Ex. 2).2 Plaintiffs do not qualify for the “religious employer” exemption contained in 45
C.F.R. § 147.130 (a)(iv)(A) and (B). (Leipold Decl. at ¶ 9 at Ex. 4; Hunt Decl. at ¶¶ 19-20 at Ex.
1; DiCresce Decl. at ¶ 15 at Ex. 3; Weingartz Decl. at ¶ 31-32 at Ex. 2). 3 The HHS Mandate
indicates that the Health Resources and Services Administration (“HRSA”) “may” grant
religious exemptions to certain religious employers. 45 C.F.R. § 147.130(a)(iv)(A). Plaintiffs,
such as Plaintiff Weingartz Supply Company and Daniel Weingartz, cannot be considered for
such an exemption as Weingartz Supply Company is a for-profit business. (Weingartz Decl. at
¶¶ 31-33 at Ex. 2). Plaintiff Legatus cannot fall under the narrow religious exemption, as it
cannot certify that it “employs persons who share the religious tenets of the organization.” 45
C.F.R. § 147.130(a)(iv)(B). Plaintiff Legatus does not make sharing its religious tenets part of
2 Plaintiff Legatus’ health care plan is not a grandfathered plan as: (1) the health care plan does not include the required “disclosure of grandfather status” statement; (2) Legatus does not take the position that its health care plan is a grandfathered plan and thus does not maintain the records necessary to verify, explain, or clarify its status as a grandfathered plan nor will it make such records available for examination upon request; and (3) the health care plan has an increase in a percentage cost-sharing requirement measured from March 23, 2010. See 42 U.S.C. § 18011(a)(2); 26 C.F.R. § 54.9815-1251T; 29 C.F.R. § 2590.715-1251; 45 C.F.R. §147.140; (Hunt Decl. at ¶ 18 at Ex. 1).
Plaintiff Weingartz Supply Company’s health care plan is not a grandfathered plan as: (1) Plaintiffs do not take the position that the plan is a grandfathered plan and do not maintain the records necessary to verify, explain, or clarify its status as a grandfathered plan nor will it make such records available for examination upon request; and (2) the health care plan has an increase in a percentage cost-sharing requirement measured from March 23, 2010. See 42 U.S.C. § 18011(a)(2); 26 C.F.R. § 54.9815-1251T; 29 C.F.R. § 2590.715-1251; 45 C.F.R. §147.140; (DiCresce Decl. at ¶ 11 at Ex. 3). (See also DiCresce Decl. at ¶ 12 at Ex. 3 (“Plaintiff Weingartz Supply Company’s health care plan is no longer grandfathered due to plan design changes. The plan in place on March 23, 2010 included a $2,000 deductible. The deductible now is $3,100.”))
3 The HHS Mandate allows HRSA to grant exemptions for “religious employers” who “meet[ ] all of the following criteria: (1) The inculcation of religious values is the purpose of the organization. (2) The organization primarily employs persons who share the religious tenets of the organization. (3) The organization serves primarily persons who share the religious tenets of the organization. (4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 45 C.F.R. § 147.130(a)(iv)(B).
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its hiring practice, nor does it exclude applicants on the basis of their religious beliefs. (Hunt Decl. at ¶ 20 at Ex. 1; Leipold Decl. at ¶ 9 at Ex. 4).
On January 20, 2012, Defendant Sebelius announced that there would be no change to the religious exemption. (Ex. 6). She added that “[n]onprofit employers who, based on religious beliefs, do not currently provide contraceptive coverage in their insurance plan, will be provided an additional year, until August 1, 2013, to comply with the new law,” on the condition that those employers certify they qualify for the extension. (Ex. 6). This announcement provided no relief to the Plaintiffs. (Leipold Decl. at ¶¶ 10-11 at Ex. 4; DiCresce Decl. at ¶ 15 at Ex. 3; Hunt Decl. at ¶¶ 21-24 at Ex. 1; Weingartz Decl. at ¶ 33 at Ex. 2). No Plaintiffs have applied for the temporary safe-harbor provision, which only serves to delay the implementation of the HHS Mandate for the period of one year. See 77 Fed. Register 8725 (Feb. 15, 2012); (Leipold Decl. at ¶ 10-11 at Ex. 4; Hunt Decl. at ¶¶ 21-24 at Ex. 1; DiCresce Decl. at ¶ 15 at Ex. 3; Weingartz Decl. at ¶ 32-33 at Ex. 2). Plaintiff Weingartz Supply Company and Daniel Weingartz, cannot be considered for the temporary safe-harbor as Weingartz Supply Company is a for-profit business. (Weingartz Decl. at ¶¶ 31-33 at Ex. 2). Plaintiff Legatus has not completed any forms seeking a temporary safe-harbor provision. (Leipold Decl. at ¶ 10 at Ex. 4; Hunt Decl. at ¶ 22 at Ex. 1). Plaintiff Legatus believes that completing such forms and applying for a temporary safeharbor provision forces compliance with an unconstitutional law that violates its religious beliefs. (Hunt Decl. at ¶ 23 at Ex. 1). Furthermore, completing the temporary safe-harbor provision only extends the implementation of the HHS Mandate for a period of one year—at which time Plaintiff Legatus would find itself in the exact same predicament it is in now— violate the HHS Mandate or violate its religious beliefs. (Hunt Decl. at ¶ 24 at Ex. 1). Therefore
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the temporary safe-harbor provision fails to effectively and constitutionally protect the religious beliefs of Plaintiff Legatus. (Hunt Decl. at ¶ 24 at Ex. 1).4
Defendant Sebelius also announced on January 20, 2012 that HHS “intend[s] to require employers that do not offer coverage of contraceptive services to provide notice to employees, which will also state that contraceptive services are available at sites such as community health centers, public clinics, and hospitals with income-based support,” inherently acknowledging that contraceptive services are readily available without mandating Plaintiffs subsidize them. (Ex. 6). Yet, Defendants have forced the Plaintiffs to face this decision: comply with their deeply held religious beliefs or comply with federal law. (Weingartz Decl. at ¶¶ 34-40 at Ex. 2; Hunt Decl. at ¶¶ 37-38, 41 at Ex. 1; DiCresce Decl. at ¶¶ 18-19 at Ex. 3; Leipold Decl. at ¶¶ 13, 21 at Ex. 4).
Plaintiffs Legatus and Weingartz Supply Company’s plan years begin on January 1, 2013. (Weingartz Decl. at ¶ 42 at Ex. 2; Hunt Decl. at ¶¶ 37-38, 41 at Ex. 1; DiCresce Decl. at ¶ 15 at Ex. 3; Leipold Decl. at ¶ 11 at Ex. 4). Plaintiffs must begin planning now for their 2013 plan year. (Leipold Decl. at ¶ 15 at Ex. 4; Weingartz Decl. at ¶ 48 at Ex. 2; DiCresce Decl. at ¶¶ 16-17 at Ex. 3; Hunt Decl. at 46 at Ex. 1). Plaintiffs will need to decide whether to terminate or change their current health care plans. (Weingartz Decl. at ¶¶ 41-50 at Ex. 2; Hunt Decl. at ¶¶ 47-48 at Ex. 1, Leipold Decl. at ¶¶ 15-18 at Ex. 4; DiCresce Decl. at ¶ 16 at Ex. 3). If Plaintiffs choose to comply with the HHS Mandate and violate their deeply held religious beliefs, the
4 Even if this Court were to decide that Plaintiff Legatus was protected by the temporary safeharbor provision, Plaintiff Legatus’ injury is sufficiently imminent to sustain this action. See Florida ex rel. Atty. Gen., et al. v. U.S. Dept. of Health and Human Services, 648 F.3d 1235, 1243 (11th Cir. 2011) (holding plaintiff could challenge the provisions of the Affordable Care Act that would not take effect until January 1, 2014), reversed in part on other grounds by Nat’l Fed’n of Indep. Bus. Et al. v. Sebelius, 132 S. Ct. 2566 (June 28, 2012); see also New York v. United States, 505 U.S. 144, 153-54 (1992); Pierce v. Soc’y of Sisters, 268 U.S. 510, 530, 536 (1925); Thomas More Law Ctr. v. Obama, 651 F.3d 529 (6th Cir. 2011), reversed in part on other grounds by Nat’l Fed’n of Indep. Bus. Et al. v. Sebelius, 132 S. Ct. 2566 (June 28, 2012).
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Plaintiffs will need to change their insurance policies, which entails the following: undergoing expensive planning to design a new insurance plan; undergoing contract bids, negotiation, and approval processes; selecting and finalizing a third party administrator and stop-loss provider; going through at least a one-month enrollment process; and producing and distributing plan materials and employee insurance cards. (DiCresce Decl. at ¶ 16 at Ex. 3; Weingartz Decl. at ¶ 43-49 at Ex. 2; Leipold Decl. at ¶ 16 at Ex. 4; Hunt Decl. at ¶ 47 at Ex. 1). This process takes several months, and at minimum three to four months. Id. A new insurance plan could cost more money to both the Plaintiffs and its employees. (DiCresce Decl. at ¶ 17 at Ex. 3; Weingartz Decl. at ¶ 43-44 at Ex. 2). If Plaintiffs were to decide to change venders or networks, this change could force plan subscribers to switch doctors. Id. Furthermore, any delay in planning could lead to a lapse in health insurance coverage for Plaintiffs and Plaintiffs’ employees. (Weingartz Decl. at ¶ 50-51 at Ex. 2; Leipold Decl. at ¶ 18 at Ex. 4; Hunt Decl. at ¶ 49 at Ex. 1).
If Plaintiffs were to decide to terminate health care entirely in order to comply with their deeply held religious beliefs, the Plaintiffs face severe burdens. Plaintiff Weingartz Supply Company and Daniel Weingartz face enormous penalties. (Weingartz Decl. at ¶ 42 at Ex. 2). Upon not providing insurance to its employees, Plaintiff Weingartz Supply Company and Daniel Weingartz would incur a $2,000 annual fine per employee, of which they have approximately 170 employees. 26 U.S.C. § 4980H; (Weingartz Decl. at ¶ 4, 42 at Ex. 2). The fines are even more insurmountable if Plaintiff Weingartz Supply Company and Daniel Weingartz were to decide to offer insurance that did not comply with the HHS Mandate. (Weingartz Decl. at ¶ 42 at Ex. 2).
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All Plaintiffs would face substantial competitive disadvantages upon discontinuing employee health insurance in that the Plaintiffs will no longer be able to offer health care and would face disadvantages in employee recruitment and retention. (Weingartz Decl. at ¶ 38 at Ex. 2; Hunt Decl. at 39-40 at Ex. 1). Plaintiffs and their employees would be forced to seek expensive insurance on the private market. (Weingartz Decl. at ¶ 52 at Ex. 2; Leipold Decl. at ¶ 19 at Ex. 4; Hunt Decl. at 51 at Ex. 1). As Plaintiffs confront the looming deadline of the effective date of the HHS Mandate, employees have expressed fears for themselves and their families about what would happen if Plaintiffs were forced to stop offering health insurance. (Weingartz Decl. at ¶ 53 at Ex. 2). All Plaintiffs wish to do is simply continue providing health insurance in compliance with their sincere and deeply held religious beliefs, as they currently do. (Weingartz Decl. at ¶ 40 at Ex. 2; DiCresce Decl. at ¶ 19 at Ex. 3; Leipold Decl. at ¶ 20-21 at Ex. 4). Without immediate relief from this Court, the Plaintiffs must choose between abandoning their faith to comply with federal law or violating federal law and incurring enormous consequences. (Weingartz Decl. at ¶¶ 33-53 at Ex. 2; DiCresce Decl. at ¶¶ 15-19 at Ex. 3; Leipold Decl. at ¶ 13-21 at Ex. 4; Hunt at ¶¶ 30-51 at Ex. 1).
ARGUMENT The standard for issuing a preliminary injunction in this Circuit is well established. In Connection Distributing Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998), the court stated: In determining whether or not to grant a preliminary injunction, a district court considers four factors: (1) the plaintiff’s likelihood of success on the merits; (2) whether the plaintiff could suffer irreparable harm without the injunction; (3) whether granting the injunction will cause substantial harm to others; and (4) the impact of the injunction on the public interest. Id.; see also Hamilton’s Bogarts, Inc. v. Michigan, 501 F.3d 644, 649 (6th Cir. 2007). Typically, the reviewing court will balance these factors, and no single factor will necessarily be
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determinative of whether or not to grant the injunction. Connection Distributing Co., 154 F.3d at 288. However, because this case deals with a violation of Plaintiffs’ First Amendment rights, the crucial and often dispositive factor is whether Plaintiffs are likely to prevail on the merits. Id.
A. Plaintiffs’ Likelihood of Success on the Merits It is not surprising that in our country founded by individuals, who sought refuge from
religious persecution, the Supreme Court of our country has succinctly avowed, If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.
W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (emphasis added). The statement written by Justice Jackson in his majority opinion is considered one of the
Court's greatest statements about our fundamental freedoms established by the Bill of Rights. It is upon this backdrop, and resting upon this body of jurisprudence built upon deference to the inalienable freedom of religion, that the constitutionality of the HHS Mandate must be decided.
i. The HHS Mandate violates the Religious Freedom Restoration Act. Congress enacted the Religious Freedom Restoration Act of 1993, 107 Stat. 1488, as amended, 42 U.S.C. § 2000bb et seq. (hereinafter “RFRA”), in response to Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990), where, in upholding a generally applicable law that burdened the sacramental use of peyote, the Supreme Court held that the First Amendment's Free Exercise Clause did not require the court to engage in a case-bycase assessment of the religious burdens imposed by facially constitutional laws, id. at 883-90. Congress, by enacting RFRA three years after the decision in Smith, purposefully adopted a statutory rule comparable to the constitutional rule rejected in Smith.
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RFRA strictly prohibits the Federal Government from substantially burdening a person's exercise of religion, "even if the burden results from a rule of general applicability," 42 U.S.C. § 2000bb-1(a), except when the Government can "demonstrate[] that application of the burden to the person--(1) [furthers] a compelling government interest; and (2) is the least restrictive means of furthering that . . . interest." 42 U.S.C. § 2000bb-1(b). See also Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) (holding that RFRA applies to the federal government); Newland, et al. v. Sebelius, et al., No. 12-1123, slip op. at 17-18 (D. Colo. July 27, 2012) (granting preliminary injunction from HHS Mandate due to violation of RFRA) (Ex. 7).
In its formulation of RFRA, Congress expressly adopted the compelling interest test of Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972). In both cases, the Court “looked beyond broadly formulated interests justifying the general applicability of government mandates, scrutinized the asserted harms, and granted specific exemptions to particular religious claimants.” Gonzales at 431, see also Yoder at 213, 221, 236; Sherbert at 410. In Sherbert, the Court held that the State’s denial of unemployment benefits to an employee who refused to work on Saturdays because of her religious beliefs was an impermissible burden on her free exercise of religion because it “force[d] her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.” Id. at 404. In Sherbert the court held that the government could not impose the same kind of burden upon the free exercise of religion as it would impose a fine against noncompliant parties of the law. Id. at 402 (“Government may neither compel affirmation of a repugnant belief, nor penalize or discriminate against individuals or groups because they hold religious views abhorrent to the authorities, nor employ the taxing power to inhibit the dissemination of particular religious views.”) (internal citations omitted).
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In Yoder, Amish and Mennonite parents of teenaged children held religious beliefs that prohibited them from sending their children to high school as required by Wisconsin law. Yoder at 207. Each parent was fined $5 per child for failing to comply with state law for not sending their children to school beyond the eighth grade in accordance with their sincerely held religious belief that “higher learning tends to develop values they reject as influences that alienate man from God.” Id. at 208-13. The Court held that the impact of Wisconsin law, while recognizing the "paramount" interest in education that the law sought to promote, impermissibly compelled the parents to perform acts undeniably at odds with the fundamental tenets of their religious beliefs. Id. at 218, 213, 221; see also Braunfeld v. Brown, 366 U.S. 599, 605 (1961). The Court found that this compulsion “carries with it precisely the kind of objective danger to the free exercise of religion that the First Amendment was designed to prevent,” Yoder at 218; the same constitutionally forbidden compulsion is before the court in this case.
In accordance with the Supreme Court rulings in Sherbert and Yoder, and with the plain language of RFRA expressly enacted by Congress to protect religious freedom, the HHS Mandate substantially burdens the Plaintiffs’ sincere exercise of religion. Furthermore, the federal government cannot "demonstrate[] that application of the burden to the person--(1) furthers a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. § 2000bb-1(b).
1. The HHS Mandate substantially burdens Plaintiffs’ free exercise of religion.
Plaintiffs’ operation of their health insurance plans according to their religious beliefs is the “exercise of religion” under the RFRA. RFRA protects “any exercise of religion, whether or not compelled by, or central 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 faith.
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Pursuant to the teachings of the Catholic Church, Plaintiffs’ sincerely held religious beliefs prohibit them from providing or purchasing health insurance coverage for contraception, abortion, abortifacients, or related education and counseling. Plaintiffs’ compliance with these beliefs is a religious exercise. The HHS Mandate creates government-imposed coercive pressure on Plaintiffs to purchase insurance and provide contraception, abortion, and abortifacients—or in other words, to change or violate their beliefs. By failing to provide an exemption for the Plaintiffs’ religious beliefs, the HHS Mandate not only exposes Plaintiff Weingartz Supply Company and Plaintiff Daniel Weingartz to substantial per employee fines for their religious exercise—roughly $2,000 annually per employee, a fine significantly more severe than the $5 per student fine struck down by the Court in Yoder—but also exposes all Plaintiffs to substantial competitive disadvantages if they are no longer permitted to offer or purchase health insurance due to their religious beliefs. 26 U.S.C. §§ 4980D & 4980H; see also Sherbert at 374 U.S. at 403-04 (finding “a fine imposed against appellant” to be a quintessential burden). The HHS Mandate imposes a substantial burden on Plaintiffs’ religious exercise by forcing Plaintiffs to violate their deeply held religious beliefs and the teachings of the Catholic Church to which they belong.
2. The HHS Mandate fails to use the least restrictive means and fails to justify a compelling interest.
The HHS Mandate furthers no compelling governmental interest and is not narrowly tailored to any compelling governmental interest, as contraceptives are currently readily available through other means without forcing the Plaintiffs to provide them.
It is the Defendants, not the Plaintiffs, who must demonstrate both a compelling interest and their use of the least restrictive means before this Court, even at the preliminary injunction stage. Gonzales, 546 U.S. at 428-30. See also Newland, slip op. at 11 (“The initial burden is
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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.”) (quoting Gonzales, 546 U.S. at 429). In order to prove that Defendants’ substantial burden on the Plaintiffs’ religious liberties is justified, the Defendants would need to pass strict scrutiny— “the most demanding test known to constitutional law.” City of Boerne v. Flores, 521 U.S. 507, 534 (1997). The Defendants are charged to “specifically identify an ‘actual problem’ in need of solving,” and show that substantially burdening Plaintiffs’ free exercise of religion is “actually necessary to the solution.” Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2738 (June 27, 2011). The government bears the burden of proof and “ambiguous proof will not suffice.” Id. at 2739. Indeed, one District Court has already ruled that the government failed to meet this burden of proof under the HHS Mandate. Newland, slip op. at 17 (“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 preventative health care coverage to women.”).
There is “no actual problem in need of solving”, and forcing the Plaintiffs to violate their religious beliefs fails to offer any sort of “actually necessary solution.” Forcing the Plaintiffs to provide and fund health insurance which makes contraceptives and abortifacients available to their employees serves only an ambiguous, non-compelling interest, and at best would serve the interest of marginally increasing access to contraceptives and abortifacients. Defendant Kathleen Sebelius herself has admitted that contraceptive services are already readily available “at sites such as community health centers, public clinics, and hospitals with income-based support.” Physicians and pharmacies have traditionally also provided contraceptive and
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abortifacient services. There is no compelling reason for the HHS Mandate to take the matter one step further by forcing employers, such as the Plaintiffs, objecting upon sincere religious grounds to subsidize these services through the insurance plans they sponsor. If the Defendants were truly concerned with the lack of access to contraceptives and abortifacients in this country, the Defendants could provide those “preventative services” without burdening the Plaintiffs’ religious beliefs.
Furthermore, the HHS Mandate fails to provide the least restrictive means of furthering Defendants’ stated interests of providing contraceptives and abortifacients, as Defendant Health and Human Services has carved out a number of exemptions for secular purposes such as size of employer, the age and grandfathered status of a health insurance plan, waivers for high grossing employers, inter alia. The HHS Mandate imminently threatens violation of the Plaintiffs’ rights secured to them by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.
ii. The HHS Mandate violates the First Amendment to the United States Constitution, Free Exercise Clause.
The First Amendment prohibits the government from making any law "respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech." U.S. Const. amend. I. Under the First Amendment, the government may not impose special restrictions, prohibitions, or disabilities on the basis of religious beliefs. See generally McDaniel v. Paty, 435 U.S. 618 (1978). “The Free Exercise Clause categorically prohibits government from regulating, prohibiting, or rewarding religious beliefs as such.” Id. at 626. And as the Supreme Court acknowledged, “This principle that government may not enact laws that suppress religious belief or practice is . . . well understood. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 523 (1993).
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Unquestionably, the First Amendment protects Plaintiffs’ right to express and exercise their religious beliefs. Under the Free Exercise Clause, the Supreme Court has ruled that the government may only pass a law that burdens certain religious exercises when the law is facially neutral and of general applicability. Id. at 531 (discussing, when not subject to the scrutiny and analysis of RFRA, a facially neutral law of general applicability is permissible notwithstanding any incidental burdens it imposes, so long as the law passes rational basis review). However, when a law burdens religious exercise because it is not actually neutral or generally applicable it must be "justified by a compelling governmental interest" and be "narrowly tailored to advance that interest.” Id. at 531-32 (citing Employment Div., Dep't of Human Res. of Ore. v. Smith, 494 U.S. 872 (1990)); see also id. at 547 ("It is established in our strict scrutiny jurisprudence that 'a law cannot be regarded as protecting an interest 'of the highest order' . . . when it leaves appreciable damage to that supposedly vital interest unprohibited'”) (internal quotation and citation omitted).
In Church of the Lukumi, supra, the City of Hialeah enacted an ordinance prohibiting the public sacrifice of animals. Id. at 527. The ordinance also contained exemptions for the slaughtering of animals raised for food purposes and for sale in accordance with state law. Id. at 528. The ordinance had the stated purpose of promoting “public health, safety, welfare, and the morals of the community” and carried a maximum fine of $500. Id. at 528. The ordinance, however, prevented members of the church of Santeria from engaging in a principal aspect of their religious worship, which was the public, sacrificial killing of animals. Id. at 524-25. This practice was known to the Defendant prior to the enactment of the ordinance. Id. at 526-27.
In deciding that the ordinance was not neutral nor generally applicable, the Court examined whether the law "infringe[d] upon or restrict[ed] practices because of their religious
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motivation," or "in a selective manner impose[d] burdens only on conduct motivated by religious belief." Id. at 533, 543. The Court emphasized that the Free Exercise Clause “forbids subtle departures from neutrality, and covert suppression of particular religious beliefs.” Id. at 534 (internal quotations and citations omitted).
The Court in Church of Lukumi further adopted the reasoning from Smith that “in circumstances in which individualized exemptions from a general requirement are available, the government ‘may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason.’” Id. at 537 (quoting Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. at 884; Bowen v. Roy, 476 U.S. 693, 708 (1986) (opinion of Burger, C.J.)
1. The HHS Mandate is not neutral nor generally applicable, and fails strict scrutiny.
Likewise, in the instant case, the HHS Mandate cannot avoid strict scrutiny as the law is not neutral nor generally applicable and the Defendants have set forth a number of individualized exemptions from the general requirement. Widespread individualized exemptions deny the mandate of general applicability. Ward v. Polite, 667 F.3d 727, 740 (6th Cir. 2012) (“At some point, an exception-ridden policy takes on the appearance and reality of a system of individualized exemptions, the antithesis of a neutral and generally applicable policy and just the kind of state action that must run the gauntlet of strict scrutiny.”); see also Newland, slip op. at 15 (holding that the scheme of exemptions in the HHS Mandate “completely undermines any compelling interest”).
Despite being informed in detail of the imposition on Catholic belief beforehand, Defendants designed the Mandate and the religious exemptions to the Mandate in a way that made it impossible for Plaintiffs to comply with their religious beliefs. By design, the Defendants imposed the Mandate on some religious organizations or religious individuals but
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not on others, resulting in discrimination among religions. The Defendants have created a number of categorical exemptions and individualized exemptions, none of which alleviate the chill imposed on the Plaintiffs’ free exercise of religion. The Affordable Care Act and the HHS Mandate include exemptions for:
 Individual members of a “recognized religious sect or division” that conscientiously object to acceptance of public or private insurance funds in their totality, such as members of the Islamic faith or the Amish. 26 U.S.C. § 5000A(d)(2)(A)(i) and (ii).
 Employers with fewer than 50 full time employees. 26 USC § 4980H(c)(2)(B)(i). However, employers with more than 50 full time employees must provide federal government-approved health insurance or pay substantial per-employee fines. 26 U.S.C. § 4980H.
 Employers with health care plans that are considered to be “grandfathered,” which, amongst meeting other criteria, have been in place and remain unchanged since March 23, 2010. 42 U.S.C. § 18011(a)(2); 26 C.F.R. § 54.9815-1251T; 29 C.F.R. § 2590.715-1251; 45 C.F.R. § 147.140.
 Non-profit employers who qualify under the narrow exemption of a “religious employer.” 45 C.F.R. § 147.130 (a)(iv)(A) and (B).
The HHS Mandate in its exemptions completely fails to address the constitutional and statutory implications on for-profit, secular employers such as Plaintiff Weingartz Supply Company and Plaintiff Daniel Weingartz. Furthermore, there is no exemption available for a member of the Catholic faith who conscientiously objects to the HHS Mandate on religious grounds. The HHS Mandate vests the Health Resources and Services Administration with
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unbridled discretion in deciding whether to allow exemptions to some, all or no organizations meeting the definition of “religious employers” or religious individuals.
For these reasons and those articulated in the previous section of this brief, the substantial burden the Defendants anchor onto the Plaintiffs’ religious exercise is not narrowly tailored to any compelling governmental interest. The HHS Mandate violates the Plaintiffs’ rights secured to them by the Free Exercise Clause of the First Amendment to the United States Constitution.
iii. The HHS Mandate violates the First Amendment to the Constitution, Free Speech and Expressive Association.
As the United States Supreme Court has long recognized, “spreading one’s religious beliefs” and “preaching the Gospel” are activities protected by the First Amendment. See Murdock v. Pennsylvania, 319 U.S. 105, 110 (1943). Supreme Court precedent also “establishes that private religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression.” Capitol Square Rev. & Adv. Bd. v. Pinette, 515 U.S. 753, 760 (1995).
Additionally, “[a]mong the rights protected by the First Amendment is the right of individuals to associate to further their personal beliefs. While the freedom of association is not explicitly set out in the Amendment, it has long been held to be implicit in the freedoms of speech, assembly, and petition.” Healy v. James, 408 U.S. 169, 181 (1972) (citations omitted). The Sixth Circuit echoed this fundamental understanding of the right to association by stating, “Freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of freedom of speech.” Connection Distributing Co., 154 F.3d at 295 (citing NAACP v. Alabama, 357 U.S. 449, 460 (1958).
Indeed, “implicit in the right to engage in activities protected by the First Amendment” is “a corresponding right to associate with others in pursuit of a wide variety of political, social,
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economic, educational, religious, and cultural ends.” Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984); see also id. at 636 (O’Connor, J., concurring) (“Even the training of outdoor survival skills or participation in community service might become expressive when the activity is intended to develop good morals, reverence, patriotism, and a desire for self-improvement.”).
The government traditionally has not been allowed to force a person—who objects to an activity or conduct on moral grounds—to subsidize, and thereby endorse, conduct that he believes, teaches, or otherwise states is wrong. See, e.g., Keller v. State Bar of California, 496 U.S. 1 (1990) (holding that the government cannot compel state bar members to finance political and ideological activities of which they disagree); Abood v. Detroit Board of Education, 431 U.S. 209 (1977) (holding that the government cannot require state employees to provide financial support for ideological union activities they oppose which are unrelated to collective bargaining); Wooley v. Maynard, 430 U.S. 705 (1977) (enjoining a state law which required that plaintiff affix the motto “Live Free or Die” on his license plate when the plaintiff, who was a Jehovah’s Witness, found the motto morally repugnant).
Indeed, the First Amendment protects the right “to hold a point of view different from the majority and to refuse to foster . . . an idea they find morally objectionable.” Wooley v. Maynard, 430 U.S. 705, 715 (1977). Therefore, Plaintiffs should not be compelled by the government to provide education and counseling against their deeply held beliefs. Plaintiffs should not be compelled to subsidize and endorse private conduct that it objects to—especially when Plaintiffs have chosen to express their faith through religious speech and assembly. Plaintiffs will be hard-pressed to effectively and persuasively communicate the Church’s teachings that contraception, abortion, and abortifacients are immoral, yet simultaneously pay for and provide contraceptives. The precepts are irreconcilable.
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Based on the speech at issue here (expressing one’s faith), Plaintiffs are also protected by “the First Amendment’s expressive associational right.” See Boy Scouts of America v. Dale, 530 U.S. 640, 648-650 (2000) (finding that the Boy Scouts are protected by the First Amendment and stating, “It seems indisputable that an association that seeks to transmit . . . a system of values engages in expressive activity”). In Boy Scouts of America, the Supreme Court held that “freedom of expressive association” under the Free Speech Clause prohibited the enforcement of a public accommodation law when it required the Boy Scouts be led by a homosexual scoutmaster. Id. at 648. The Supreme Court held that compelling the enforcement of the public accommodation law would “force the organization to send a message, both to the youth members and the world, that the [organization] accepts homosexual conduct as a legitimate form of behavior.” Id. at 653. Correspondingly, in Hurley v. Irish-American Gay, Lesbian & Bisexual Group, 515 U.S. 557 (1995), the Supreme Court held that the First Amendment gave the plaintiffs, organizers of a private St. Patrick’s Day parade, the right to exclude a homosexual group from the parade, when the plaintiffs believed that the group’s presence would communicate a message about homosexual conduct to which the plaintiffs objected. The First Amendment protected the plaintiffs’ right “not to propound a particular point of view,” id. at 575, and the Supreme Court protected the “principle of speaker’s autonomy,” id. at 580.
Since the First Amendment through its free speech and expressive association provisions protects nonreligious organizations based upon moral objections to exclude individuals whose mere presence was thought to send an objectionable message, then reasonably the Court should protect the free speech and association of the Plaintiffs who object to subsidizing and supporting certain messages and conduct based upon their deeply held religious beliefs. The compelled subsidization and support of contraceptives, abortion, and abortifacients in the instant case
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strikes at the heart of one’s ability to communicate unambiguous moral teachings and religious beliefs, and one’s ability to form associations that maintain adherence to those teachings.
The Defendants cannot compel speech and association they find favorable, but is volative of the Plaintiffs’ religious beliefs. Based upon this, and all other reasons articulated in this brief, the Plaintiffs have demonstrated a substantial likelihood of prevailing on the merits of their claims.
B. Plaintiffs Will Suffer Irreparable Harm to Plaintiffs without Injunctive Relief. Plaintiffs will be irreparably harmed absent the issuance of an injunction by this Court.
The HHS Mandate deprives Plaintiffs of their fundamental First Amendment rights. And it is well established that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976); see also Connection Distributing Co., 154 F.3d at 288 (quoting Elrod); Newsome v. Norris, 888 F.2d 371, 378 (6th Cir. 1989) (“The Supreme Court has unequivocally admonished that even minimal infringement upon First Amendment values constitutes irreparable injury sufficient to justify injunctive relief.” (citing Elrod)).
Additionally, Plaintiffs will suffer financial harm. Plaintiff Legatus obtains its revenue through its membership of faithful Catholic individuals. Plaintiff Legatus engages in outreach and education regarding the teachings of the Catholic Church which contradict with the provisions of the HHS Mandate. Plaintiffs Daniel Weingartz and Weingartz Supply Company face per employee fines for noncompliance with the HHS Mandate. All Plaintiffs face substantial competitive disadvantages if they are no longer permitted to offer or purchase health insurance due to remaining faithful and exercising their religious beliefs. Plaintiffs will incur
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costs and expenses due to the enforcement of the HHS Mandate. If an injunction does not issue, Plaintiffs will be forced to violate their religious beliefs or potentially forfeit health insurance.
C. Granting a Preliminary Injunction Will Cause No Substantial Harm to Others. In this case, the likelihood of harm to Plaintiffs is substantial because Plaintiffs’ First
Amendment freedoms and Plaintiffs’ freedom of religion are at issue, and the deprivation of these rights, even for minimal periods, constitutes irreparable injury.
On the other hand, if Defendants are restrained from enforcing the HHS Mandate against Plaintiffs, Defendants will suffer no harm because the exercise of constitutionally protected expression can never harm any of the Defendants’ or others’ legitimate interests. See Connection Distributing Co., 154 F. 3d at 288. The Defendants already exempt a number of other employers and individuals from the HHS Mandate. Allowing the Plaintiffs an exemption in order to stop a violation of their deeply held religious beliefs fails to cause harm to the Defendants. Any legitimate interest asserted by Defendants or others will remain fully protected by existing provisions of law.
In the final analysis, the question of harm to others as well as the impact on the public interest “generally cannot be addressed properly in the First Amendment context without first determining if there is a constitutional violation. . . .” Connection Distribution Co., 154 F.3d at 288. For if Plaintiffs show that their First Amendment rights have been violated, then the harm to others is inconsequential. As demonstrated, the enforcement of Defendants’ HHS Mandate on Plaintiffs violates the First Amendment; therefore, any “harm” to others is inconsequential.
D. The Impact of the Preliminary Injunction on the Public Interest Favors Granting the Injunction. The impact of the preliminary injunction on the public interest turns in large part on
whether Plaintiffs’ Constitutional rights are violated by the enforcement of Defendants’ HHS
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Mandate. As the Sixth Circuit noted, “[I]t is always in the public interest to prevent the violation of a party’s Constitutional rights.” G & V Lounge, Inc. v. Michigan Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994); see also Dayton Area Visually Impaired Persons, Inc. v. Fisher, 70 F.3d 1474, 1490 (6th Cir. 1995) (stating “the public as a whole has a significant interest in ensuring equal protection of the laws and protection of First Amendment liberties”). Aforementioned, the enforcement of Defendants’ HHS Mandate is a direct violation of Plaintiffs’ fundamental rights protected by the First Amendment. Therefore, the public interest is best served by preventing the Defendants from compelling individuals to violate their religious beliefs and rights of conscience, protected by RFRA and the First Amendment.
In the final analysis, the Defendants’ HHS Mandate violates the Plaintiffs’ fundamental Constitutional rights. The HHS Mandate forces the Plaintiffs to violate their deeply held religious beliefs of their Catholic faith. Without a preliminary injunction, Plaintiffs will be irreparably harmed.
CONCLUSION Plaintiffs hereby request that this court issue the requested preliminary injunction. The HHS Mandate violates both RFRA and the First Amendment. Unless this Court issues a preliminary injunction prior to when the Plaintiffs need to implement logistics for their January 1, 2013 plan year, Plaintiffs inescapably must choose between violating their religious beliefs or suffering massive financial penalties and harm to their goodwill and sustainability. Defendants, conversely, would face no harm from an injunction as the Mandate already exempts millions of other companies and organizations. Plaintiffs seek for this Court to enjoin Defendants’ requirement that Plaintiffs cover contraception, abortifacients, and counseling and education for the same, in their health plans. A form order is attached. (Ex. 8).
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Respectfully submitted this 15th day of August, 2012.
Attorneys for Plaintiffs:
THOMAS MORE LAW CENTER s/ Erin Mersino_________________ Erin Mersino, Esq. (P70886) 24 Frank Lloyd Wright Blvd. P.O. Box 393 Ann Arbor, MI 48106 (734) 827-2001 emersino@thomasmore.org s/ Richard Thompson_____________ Richard Thompson, Esq. (P21410) 24 Frank Lloyd Wright Blvd. P.O. Box 393 Ann Arbor, MI 48106 (734) 827-2001 rthompson@thomasmore.org
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2:12-cv-12061-RHC-MJH Doc # 13 Filed 08/15/12 Pg 39 of 39 Pg ID 202 CERTIFICATE OF SERVICE
I hereby certify that on August 15, 2012, a copy of the foregoing was filed electronically. Notice of this filing will be sent to all parties for whom counsel has entered an appearance by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s system. I certify that a copy of the foregoing has been served by ordinary U.S. Mail upon all parties for whom counsel has not yet entered an appearance electronically: None
THOMAS MORE LAW CENTER s/ Erin Mersino_________________ Erin Mersino, Esq. (P70886)
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 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LEGATUS, et al.,

Plaintiffs,

v.

Case No. 12-12061

KATHLEEN SEBELIUS, et al.,

Defendants. /

ORDER GRANTING PLAINTIFFS DANIEL WEINGARTZ’S AND WEINGARTZ SUPPLY COMPANY’S MOTION FOR PRELIMINARY INJUNCTION AND
DENYING WITHOUT PREJUDICE PLAINTIFF LEGATUS’S MOTION FOR PRELIMINARY INJUNCTION

Plaintiffs Legatus, Daniel Weingartz, and Weingartz Supply Company, all

adherents to the tenets of Roman Catholicism, move for a preliminary injunction under

the Religious Freedom Restoration Act. They each seek to enjoin the Government from

enforcing the provision of the Patient Protection and Affordable Care Act that requires

all group health plans, other than those that are “grandfathered” and exempt, to provide

the full range of FDA-approved contraceptive methods without cost sharing.

The motion has been fully briefed, and a hearing was held on September 28,

2012. For the following reasons, the preliminary injunction is granted as to Daniel

Weingartz and Weingartz Supply Company and denied without prejudice as to Legatus.

I. BACKGROUND

The Patient Protection and Affordable Care Act (“ACA”) requires all group health

plans and health insurance issuers that offer non-grandfathered group or individual

health coverage to provide coverage to women without cost sharing that includes “preventive care and screenings . . . as provided for in the comprehensive guidelines supported by the Health Resources and Services Administration [‘HRSA’].” 42 U.S.C. § 300gg-13(a)(4). “Without cost sharing” in this context means free of cost to the patient.
The Government issued interim final regulations implementing this preventive services coverage provision on July 19, 2010, requiring a group health plan or health insurance issuer offering non-grandfathered health coverage to provide, without cost sharing, the recommended preventive services for plan years beginning on or after one year from the date the recommendation is issued (“HRSA Mandate”). 75. Fed. Reg. 41,728–41,729.
The HRSA enlisted the Institute of Medicine (“IOM”), an independent, non-profit organization established under the National Academy of Sciences, to develop recommendations for the HRSA guidelines. See Institute of Medicine, Clinical Services for Women: Closing the Gaps 2 (2011) (“IOM Rep.”). The IOM issued a report that recommended the HRSA guidelines include, among other things, “the full range of Food and Drug Administration [‘FDA’]-approved contraceptive methods, sterilization procedures, and patient and education counseling for women with reproductive capacity.” Id. at 10. FDA-approved contraceptive methods, in turn, are found to include oral contraceptives, “emergency contraceptive” abortifacients (such as “Plan B” and “Ella”), and intrauterine devices. FDA, Birth Control Guide 10–12, 16–20 (2012), available at http:// www.fda.gov/ ForConsumers/ ByAudience/ ForWomen/ ucm118465. On August 1, 2011, the HRSA adopted the IOM’s recommendations in full. See HRSA,
2

Women’s Preventive Services: Required Health Plan Coverage Guidelines, http://

www.hrsa.gov/ womensguidelines/ (last visited Oct. 10, 2012). On that same date,

Health and Human Services, the Department of Health, and the Department of Labor

issued an amendment to the interim final rule that allowed the HRSA to exempt

“religious employers” from covering contraceptive services. 76 Fed. Reg. 46,623. A

religious employer was defined as one that:

(1) [h]as the inculcat ion of religious values as its purpose; (2) primarily

employs persons who share its religioustenets; (3) primarily serves persons

who share its religious tenets; and (4) is a non-profit organization under

section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the [In

ternal

Revenue] Code.

Id. The HRSA so exempted organizations that qualified as a religious employer. 77 Fed. Reg. 8,727. Consequently, the HRSA Mandate for non-exempted and nongrandfathered plans would take effect for plan years beginning on or after August 1, 2012. See 76 Fed. Reg. 46,621.
After allowing for public comment, the Government in February 2012 adopted in final regulations the definition of “religious employer” as described in the amended interim final regulations. 77 Fed. Reg. 8,727. At that same time, a temporary enforcement safe harbor was created to develop and propose changes to the final regulations for the purpose of satisfying two goals: “providing contraceptive coverage without cost-sharing to individuals who want it and accommodating non-exempted, nonprofit organizations’ religious objections to covering contraceptive services.” Id. The temporary safe harbor is in effect until the first plan year that begins on or after August 1, 2013. Department of Health and Human Services, Guidance on the Temporary

3

Enforcement Safe Harbor 3 (Aug. 15, 2012), available at http:// cciio.cms.gov/
resources/ files/ prev-services-guidance-08152012.pdf. The Government explained: Neither employers, nor group health plans, nor group health insurance issuers will b e subject to any enforce ment action by the Departments for failing to cover some or all of the recommended contraceptive services without cost sharing in non-exempet d, non-grandfathered group health plans established or maintained by an organization . . . meeting all of the following criteria: (1) The organization is organized and operates as a non-profit entity. (2) From February 10, 2012 onward,the group health plan established or maintained by the organization has c onsistently not provided all or the same subset of the contraceptive coverage otherwise required at any point, consistent with any applicable State law, because of the religious beliefs of the organization. (3) [T]he group health plan est ablished or maintained by the organization (or another entity on behalf of the plan, such as a health insurance issuer or third-party administrator) provides to plan participants a prescribed notice indicating that some or all contraceptive coverage will not be provided under the plan for the firstplan year beginning on or after August 1, 2012. (4) The organization self-certifies t hat it satisfies criteria 1- 3 above, and documents its self-certification in accordance with procedures detailed herein.
Id.
In accordance with the temporary safe harbor, the Government on March 21,
2012, began the process to amend the final regulations by issuing an Advance Notice of
Proposed Rulemaking (“ANPRM”). 77 Fed. Reg. 16,503. The ANPRM “present[ed]
questions and ideas,” as well as solicited comment, “on how to provide women access
to the important preventive services at issue without cost sharing while accommodating
religious liberty interests.” Id. The Government has received comments and has
asserted that it will publish a notice of proposed rulemaking, followed by additional
public comment. Id. The Government offers that amendments will be finalized before
the end of the temporary enforcement safe harbor on August 1, 2013. Id.
4

Plaintiff Legatus is a non-profit organization whose mission is “[t]o study, live and spread the Catholic faith in our business, professional and personal lives.” (Pls.’ Compl. ¶¶ 23–24, Dkt. # 1.) Legatus is comprised of more than 4,000 members including individuals and professional organizations. (Id. ¶¶ 26–27.) Plaintiff Daniel Weingartz (“Weingartz”) is the president of Plaintiff Weingartz Supply Company (“Weingartz Supply Co.”), a secular, for-profit, family owned and operated corporation that sells outdoor power equipment and employs over 170 employees. (Decl. Daniel Weingartz ¶¶ 3–4, Dkt. # 13-3.) Weingartz is a practicing Catholic and active member of Legatus. (Id. ¶¶ 7, 9.) It is contrary to Catholic doctrine to use, pay for, or support the use of contraception. (Id. ¶ 15.) In accordance with his religious beliefs, Weingartz designed a health insurance policy for the employees of Weingartz Supply Co. to specifically exclude contraception. (Pls.’ Compl. ¶ 45, Dkt. # 1.) Legatus engineered a similar health insurance policy that excludes contraception for its employees in observance of Catholic teaching. (Id. ¶ 37.) Plaintiffs argue that the HRSA Mandate, which forces them to choose between providing health insurance that includes contraception without cost-sharing or incurring a financial penalty,1 substantially burdens their free exercise of religion. (Id. ¶ 89.) Under the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C.
1If an employer with at least 51 full-time employees does not offer health care coverage to its employees, then beginning in 2014 the employer is assessed an annual penalty of $2,000 multiplied by the number of full-time employees minus 30. Hinda Chaikind & Chris L. Peterson, Summary of Potential Employer Penalties Under the Patient Protection and Affordable Care Act (PPACA), Congressional Research Service (2010), available at http:// www.shrm.org/ hrdisciplines/ benefits/ Documents/ EmployerPenalties.pdf.
5

§ 2000bb, Plaintiffs seek a preliminary injunction to prohibit the Government from enforcing the HRSA Mandate against them.
II. STANDARD Plaintiffs bring their preliminary injunction motion under RFRA and not the Free Exercise Clause of the First Amendment.2 However, because RFRA and the Free Exercise Clause both seek to protect the same liberty interest—the free practice of one’s religion—the court will take into account the jurisprudence of preliminary injunctions concerning First Amendment rights in deciding the present motion. A preliminary injunction “is an extraordinary remedy which should be granted only if the movant carries his or her burden of proving that the circumstances clearly demand it.” Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566, 573 (6th Cir. 2002). Courts should consider: “(1) the likelihood that the movant will succeed on the merits; (2) whether the movant will suffer irreparable harm without the injunction; (3) the probability that granting the injunction will cause substantial harm to others; and (4) whether the public interest will be advanced by issuing the injunction.” Jones v. Caruso, 569 F.3d 258, 265 (6th Cir. 2009). “These factors are not prerequisites but are factors that are to be balanced against each other.” Overstreet, 305 F.3d at 573. But “when a party seeks a preliminary injunction on the basis of a potential violation of the First Amendment, the likelihood of success on the merits often will be the determinative factor.” Jones, 569 F.3d at 265. In sum, “because the questions of harm to the parties
2The Free Exercise Clause states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” U.S. Const. amend. I.
6

and the public interest cannot be addressed properly in the First Amendment context without first determining if there is a constitutional violation, the crucial inquiry often is . . . whether the [regulation] at issue is likely to be found constitutional.” Connection Distributing Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998).
III. DISCUSSION A. Standing
As an initial matter, the court must determine whether Plaintiffs have standing to seek a preliminary injunction under RFRA enjoining the enforcement of the HRSA Mandate. It is beyond question that Weingartz, as an individual, does. See 42 U.S.C. § 2000bb-1(a). The court will address in turn whether Weingartz Supply Co. and Legatus have standing.
In order to establish standing, three elements must be present: (1) the plaintiff suffered an “injury in fact,” (2) there is a causal connection between the injury and the conduct complained of, and (3) it must be “likely” that the injury will be “redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). An “injury in fact” is “an invasion of a legally protected interest which is (a) concrete or particularized and (b) actual or imminent, not conjectural or hypothetical.” Id. at 560 (internal citations omitted).
1. Weingartz Supply Co. Weingartz Supply Co. is a secular, for-profit company that sells outdoor power equipment. Weingartz Supply Co. asserts, without contradiction, that it is a “family owned and operated business,” (Pls.’ Compl. ¶ 74, Dkt. # 1.), led by Daniel Weingartz as its president, (Id. ¶ 41).
7

Neither the Supreme Court nor the Sixth Circuit has held that a for-profit corporation can assert its own rights under the Free Exercise Clause. The text of RFRA extends its protections only to individuals, not corporations. See 42 U.S.C. § 2000bb1(a) (“Government shall not substantially burden a person’s exercise of religion . . . .”) (emphasis added). However, at least one Circuit has held that “a corporation has standing to assert the free exercise rights of its owners” when that corporation is closely held and “‘merely the instrument through and by which [the plaintiffs] exercise their religious beliefs.’” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1120 (9th Cir. 2009) (quoting EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610, 619 (9th Cir. 1988); see also Townley, 859 F.2d at 620 (holding that a corporation “present[ed] no rights of its own different from or greater than its owners’ rights,” “is an extension of the beliefs of [its owners], and for all purposes, the beliefs of [its owners] are the beliefs and tenets of the [corporation],” and that the corporation had standing to assert its owners’ Free Exercise rights). Further, the Supreme Court has famously recognized that First Amendment free-speech protection extends directly to corporations. Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 130 S. Ct. 876, 900 (2010) (“The Court has . . . rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not ‘natural persons.’”). It appears to the court that, although it is first impression for this Circuit, a strong case for standing, at least on a Stormans pass-through instrumentality theory, is sustainable.
Weingartz Supply Co. was founded as a family business and remains a closely held family corporation. Accordingly, the court need not, and does not, decide whether
8

Weingartz Supply Co., as a for-profit business, has an independant First Amendment
right to free exercise of religion. For the purposes of the pending motion, however,
Weingartz Supply Co. may exercise standing in order to assert the free exercise rights
of its president, Daniel Weingartz, being identified as “his company.” (Pls.’ Compl. ¶ 45,
Dkt. # 1.)
2. Legatus
The Government argues that Legatus has not suffered an injury in fact because
the injury, at this time, is attenuated and speculative. Under the temporary safe harbor,
the Government asserts that it will not take any enforcement action against non-
exempted, non-grandfathered health group plans that fail to cover some or all of the
recommended contraceptive services if the plan is sponsored by an organization that
meets four criteria:
(1) The organization is organized and operates as a non-profit entity. (2) From February 10, 2012 onward,the group health plan established or maintained by the organization has c onsistently not provided all or the same subset of the contraceptive coverage otherwise required at any point, consistent with any applicable State law, because of the religious beliefs of the organization. (3) [T]he group health plan established or maintained by the organization (or anot her entity on behalf of the plan, such as a health insurance issuer or third-party administrator) provides to plan participants a prescribed notice indicating that some or all contraceptive coverage will not be provided under the plan for the firstplan year beginning on or after August 1, 2012. (4) The organization self-certifies that it satisfies criteria 1- 3 above, and documents its self-certification in accordance with procedures detailed herein.
Department of Health and Human Services, Guidance on the Temporary Enforcement
Safe Harbor 3 (Aug. 15, 2012), available at http:// cciio.cms.gov/ resources/ files/ prev-
9

services-guidance-08152012.pdf. The safe harbor is in effect until the first plan year that begins on or after August 1, 2013.
During the safe harbor period, the Government argues that it intends to amend the preventive services coverage regulations to accomplish the very purpose that Legatus brings its suit—to accommodate, presumably by exemption, non-exempt, nongrandfathered religious organizations’ religious objections to covering contraceptive services. The Government began this process in March 2012 when it published the ANPRM.
Legatus, as a non-profit organization that has not provided contraceptive coverage from February 10, 2012, onward, qualifies for the safe harbor protection. Consequently, Legatus asks the court to enjoin the Government from enforcing a rule that is not yet finalized, which would, essentially, require the court to issue an advisory opinion. Laird v. Tatum, 408 U.S. 1, 14 (1972) (“[T]he federal courts established pursuant to Article III of the Constitution do not render advisory opinions.”) (citations omitted). Legatus argues that it has suffered a concrete injury because the Government’s promise of future rulemaking is non-binding, and the HRSA Mandate could be enforced against them at any time. However, there is no evidence to suggest that the Government will abruptly quit the amendment process and enforce the HRSA Mandate against Legatus. Furthermore, the Government’s actions are entitled to a good faith presumption. See Sossamon v. Lone Star State of Tex., 560 F.3d 316, 325 (5th Cir. 2009) (“Without evidence to the contrary, we assume that formally announced changes to official governmental policy are not mere litigation posturing.”); Comcast Corp. v. F.C.C., 526 F.3d 763, 762 n.2 (D.C. Cir. 2008) (“We must presume an agency
10

acts in good faith . . . .”) (citations omitted). Other courts deciding this identical issue
have found that non-profit organizations protected under the safe harbor do not have
standing because their injury is conjectural. Wheaton Coll. v. Sebelius, No. 12-1169,
2012 WL 3637162, at *7 (D.D.C. Aug. 24, 2012) (denying standing because the
preventive coverage rule pertaining to organizations that qualify for the temporary safe
harbor is being amended and thus plaintiffs’ injuries were hypothetical); Belmont Abbey
Coll. v. Sebelius, No. 11-1989, 2012 WL 2914417, at *10 (D.D.C. July 18, 2012)
(“Because an amendment to the final rule that may vitiate the threatened injury is not
only promised but underway, the injuries alleged by Plaintiff are not ‘certainly
impending.’”) (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)).
Moreover, in the event that the Government acts in a way inimical to the rights
Legatus seeks to protect—acts which the court presently views as doubtful—Legatus is
not constrained from approaching the court with its concerns at that time. But as the
case is presently situated, the court is not persuaded that Legatus has standing to bring
its claim.3
3Legatus, in a footnote in its reply brief, alternatively seeks associational standing if the court denies it Article III standing. (Pls.’ Reply Def.’s Opp’n Pls.’ Mot. Prelim. Inj. at 15 n.6, Dkt. # 19.) “An association has standing to bring suit on behalf of its members when: “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977). Plaintiffs have failed to provide sufficient facts about Legatus’s members and companies to establish that the members would have standing to sue in their own right or that their participation in this lawsuit is not required. Legatus is comprised of 4,000 members from over 2,100 companies. It unknown which of the 2,100 organizations are non-profit or for-profit companies, religiously-based or secular, closely held or not, or whether the organization qualifies for the temporary safe harbor—all of which affect each organization’s standing. While the court accepts that
11

B. Likelihood of Success on the Merits RFRA states, “Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1.
1. Substantial Burden Catholicism teaches that it is a sin to use, provide, or otherwise support contraception. (Pls.’ Compl. ¶¶ 56, 85 Dkt. # 1.) Weingartz, as a Catholic, asserts that having Weingartz Supply Co. provide or participate in health insurance that includes the FDA-approved contraceptive methods violates his sincerely-held religious beliefs. The HRSA Mandate requires Weingartz Supply Co., as an employer with more than fifty fulltime employees, to offer health insurance. If Weingartz Supply Co. chooses not to provide coverage in order to avoid the HRSA Mandate, then beginning in 2014 Weingartz Supply Co. will incur an annual penalty equal to $2,000 multiplied by the number of Weingartz Supply Co.’s full-time employees minus 30.4 Plaintiffs therefore assert that the HRSA Mandate substantially burdens Weingartz’s exercise of religion.
Catholic doctrine prohibits the use of contraception, the court does not know if every Legatus member adheres, strictly or otherwise, to that principle, nor does the court know how any possible differences in adherence might affect the formula used to determine associational standing. Accordingly, Legatus is denied associational standing.
4Hinda Chaikind & Chris L. Peterson, Summary of Potential Employer Penalties Under the Patient Protection and Affordable Care Act (PPACA), Congressional Research Service (2010), available at http:// www.shrm.org/ hrdisciplines/ benefits/ Documents/ EmployerPenalties.pdf.
12

The Supreme Court has held that “putting substantial pressure on an adherent to modify his behavior and to violate his beliefs” substantially burdens a person’s exercise of religion. Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 718 (1981). “It is not within the judicial function and judicial competence to inquire” whether a party is correctly understanding his religious doctrine as “[c]ourts are not arbiters of scriptural interpretation.” Id. at 716. Accordingly, courts often simply assume that a law substantially burdens a person’s exercise of religion when that person so claims. See, e.g., U.S. v. Lee, 455 U.S. 252, 257 (1982) (“We therefore accept appellee’s contention that both payment and receipt of social security benefits is forbidden by the Amish faith.”); May v. Baldwin, 109 F.3d 557, 563 (9th Cir. 1997) (“[W]e will assume that undoing May’s dreadlocks imposes a substantial burden on his exercise of Rastafarianism.”); Hamilton v. Schriro, 74 F.3d 1545, 1552 (8th Cir. 1996) (“[W]e assume that the regulations and policies at issue in the present case substantially burden Hamilton’s exercise of his religion.”).
Accordingly, and similarly, the court assumes that the Weingartz Plaintiffs are likely to show at trial that the HRSA Mandate substantially burdens the observance of the tenets of Catholicism.
2. Compelling Government Interest The Government may substantially burden a person’s exercise of religion “only if it demonstrates that application of the burden to the person is in furtherance of a compelling governmental interest.” 42 U.S.C. § 2000bb-1(b)(1). The phrase “compelling interest” has been described differently by courts over time, but it has a core. The Supreme Court has described compelling interests as those “of the highest
13

order,” Church of the Lukumi Bablu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993); “only those interests of the highest order and those not otherwise served,” Wisconsin v. Yoder, 406 U.S. 205, 215 (1972); “an overriding governmental interest,” U.S. v. Lee, 455 U.S. 252, 258 (1982); and “the gravest abuses, endangering paramount interests,” Thomas v. Collins, 323 U.S. 516, 530 (1945) (discussing the freedoms of speech and assembly).
At other times, the Supreme Court, the Sixth Circuit, and other circuit courts have referred to “a compelling state interest” as though it either defines itself or needs no further elaboration. See, e.g., Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2738 (2011) (citing R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 395 (1992)); Sherbert v. Verner, 374 U.S. 398, 406 (1963); Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487, 498 (10th Cir. 1998); S. Ridge Baptist Church v. Indus. Comm’n, 911 F.2d 1203, 1206 (6th Cir. 1990).
The theme that emerges is the identification of “overriding,” “paramount” governmental interests of the very “highest order.” Interests of a lesser magnitude, those that are not paramount, including those that are otherwise served, cannot be considered “compelling.”
The Government advances two interests furthered by the HRSA Mandate. First, the Government has an interest in promoting public health generally. Courts have assumed, sometimes without deciding, that the improvement of public health is, at least in some instances, a compelling interest. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 310 (1978) (“It may be assumed that in some situations a State’s interest in facilitating the health care of its citizens is sufficiently compelling to support the use of a
14

suspect classification.”); Buchwald, 159 F.3d at 498 (citing Bakke to conclude that “public health is a compelling government interest”); Mead v. Holder, 766 F. Supp. 2d 16, 43 (D.D.C. 2011) (“The Government clearly has a compelling interest in safeguarding the public health by regulating the health care and insurance markets.”); (Dickerson v. Stuart, 877 F. Supp. 1556, 1559 (M.D. Fla. 1995) (“The State of Florida has a compelling interest in the health of expectant mothers and the safe delivery of newborn babies.”).
Here, the Government, relying upon the IOM Report, argues that “a lack of contraceptive use has proven to have negative health consequences for both women and a developing fetus.” (Defs.’ Opp’n Pls.’ Mot. Prelim. at 25, Dkt. # 14.) Passing quickly by the somewhat odd implication by the Government that the use of contraception could somehow have a beneficial impact on a “developing fetus” that contraceptive use is itself designed to avoid, the court understands the Government to argue that “women experiencing an unintended pregnancy may not immediately be aware that they are pregnant; their entry into prenatal care may be delayed, they may not be motivated to discontinue behaviors that present risks for the developing fetus; and they may experience depression, anxiety, or other conditions.” IOM Rep. at 103. The ability to control pregnancy spacing is also important, the Government argues, because short interpregnancy intervals are “associated with low birth weight, prematurity, and small-for-gestational-age births.” Id.
The Government’s second interest is to “further[] gender equality,” (Defs.’ Opp’n Pls.’ Mot. Prelim. at 26, Dkt. # 14), in two ways. First, the Government argues that providing cost-free access to pregnancy prevention services, devices, and care
15

eliminates gender-based disparity in health care costs. Women of reproductive age spend sixty-eight percent more in out-of-pocket health care costs than men. Ann Kurth et al., Reproductive and Sexual Health Benefits in Private Health Insurance Plans in Washington State, 33 Fam. Plan. Persp. 153, 153 (2001) (citing Women’s Research and Education Institute, Women’s Health Insurance Costs and Experiences 1–8 (1994)).
The Government asserts that when health insurance plans impose cost-sharing for pregnancy-avoidance preventive care—in truth, the court adds, for care of any kind—the costs of such care can become a financial barrier that discourages or prevents access to it. In the present circumstance, the Government argues that imposing costs of any kind serves to inhibit women from accessing and utilizing contraceptive methods. IOM Rep. at 109. The Government further argues that by eliminating cost-sharing for preventive care, and by better enabling women to decide whether or when to have children, the Government’s aim to “advance gender equality” is served. Women who control their reproductive functions are better able to make informed decisions regarding their careers and family. It appears that the availability of oral contraception played an important role in increasing the presence of women in the workforce, bringing them into more direct economic competition with men, and eventually improving women’s wages. Martha J. Bailey et al., The Opt-In Revolution? Contraception and the Gender Gap in Wages, 4 Am. Econ. J.: Applied Econ. 225 (2012). Female enrollment in graduate programs such as law, medical, and dental schools also increased, causally related to the availability of oral contraception, according to some researchers. Claudia Goldin & Lawrence F. Katz, The Power of the
16

Pill: Oral Contraceptives and Women’s Career and Marriage Decisions, 110 J. of Pol.
Econ. 730 (2002). Another researcher concluded:
Women’s equal freedom of intimate associ ation and liberty to invest in life plans on equal terms with men—plans for education, employment, or family that can span year s—require that contraception be treated as a routine health benefit and not excluded from pub lic or private health insurance coverage. Women cannot participate in society, learn, earn, govern, and thrive equally without the ability to determine whether and when to become mothers.
Cornelia T.L. Pillard, Our Other Reproductive Choices: Equality in Sex Education,
Contraceptive Access, and Work-Family Policy, 56 Emory L.J. 941, 976 (2007).
The Supreme Court has echoed this sentiment, saying that “[t]he ability of
women to participate equally in the economic and social life of the Nation has been
facilitated by their ability to control their reproductive lives.” Planned Parenthood of Se.
Pa. v. Casey, 505 U.S. 833, 835 (1992).
Plaintiffs claim these interests are “tenuous” and “generic.” (Pls.’ Reply Def.’s
Opp’n Pls.’ Mot. Prelim. Inj. at 7–8, n.2, Dkt. # 19.) Plaintiffs argue that the known
negative medical side effects of oral contraception outweigh the positive health benefits
provided by the full-range of FDA-approved contraceptive methods. Plaintiffs also cite
the IOM Report, which notes that “research is limited” for some outcomes of unintended
pregnancies, as evidence that reducing the number of unintended pregnancies is not a
compelling interest. IOM Rep. at 103. Plaintiffs further argue that the interest of
promoting gender equality in the workforce is not “compelling” because many other
federal laws, such as the Pregnancy Disability Act, 42 U.S.C. § 2000e(k), and the
Family Medical Leave Act, 42 U.S.C. § 12631, already protect women from workplace
discrimination. However, it does not appear that those laws improve or even address 17

the Government’s stated goal of improving women’s ability to decide whether and when to have children. Plaintiffs do not contest that women of child-bearing age spend significantly more than men on out-of-pocket health care costs.
Plaintiffs further argue that none of the Government’s proposed interests can be considered compelling because the HRSA Mandate does not apply to grandfathered plans. A health plan is considered grandfathered if an individual was enrolled in the plan on March 23, 2010, the date on which the ACA was enacted. 75 Fed. Reg. 34,540. About 193 million health plans were in existence on March 23, 2010, and presumably qualified as grandfathered. Id. Such plans were required to comply with some, but not all, of the ACA’s health care reform provisions. Id. Health plans that lose their grandfathered status are subject to the HRSA Mandate. Id. at 34,540–34,541. The Government estimates that between 39% and 69% of health plans will lose their grandfathered status by the end of 2013. Id. at 34,552. Plaintiffs assert that the Government undermined its compelling interests by not enforcing the HRSA Mandate against all health plans immediately when the ACA was enacted.
The Government responds that the ACA was “designed to ease the transition of the healthcare industry into the reforms established by the [ACA] by allowing for gradual implementation of reforms through a reasonable grandfathering rule.” Id. at 34,541. “In making grandfathered health plans subject to some but not all of the health reforms contained in the [ACA], the statute balances its objective of preserving the ability to maintain existing coverage with the goals of expanding access to and improving the quality of health coverage.” Id. at 34,540. Gradually implementing the ACA’s health care provisions, instead of enforcing the entire law against all plans at the same time,
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does not appear to be indicative of how important the Government considers the interests of regulating public health and furthering gender equality. Instead, the grandfathering rule seems to be a reasonable plan for instituting an incredibly complex health care law while balancing competing interests. To find the Government’s interests other than compelling only because of the grandfathering rule would perversely encourage Congress in the future to require immediate and draconian enforcement of all provisions of similar laws, without regard to pragmatic considerations, simply in order to preserve “compelling interest” status.
There is a significant dispute, but the Government seems at least capable of persuading, to some level of satisfaction, that the HRSA Mandate promotes one, and perhaps both, interests and that each interest may be compelling. Even so, the Government is also required 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 v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430–31 (2006). The court must look “beyond broadly formulated interests justifying the general applicability of government mandates and scrutinize[] the asserted harm of granting specific exemptions to particular religious claimants.” Id. at 431. Plaintiffs argue that because religious non-profit organizations are exempt from the HRSA Mandate, granting an additional exemption to Weingartz Supply Co. and its 170 employees would not result in an appreciable harm to its interests.
The Government responds that the HRSA Mandate must apply to Weingartz Supply Co. because it is the only way to ensure that Weingartz Supply Co.’s employees
19

and their dependents receive without cost the full range of FDA-approved contraceptive methods. The Government argues that providing a religious exemption to a secular, for-profit company would open the door for owners of other secular businesses to request religious exemptions to federal laws under RFRA, thereby essentially imposing the owners’ religious beliefs on their employees who may not share their owners’ convictions.
The Government further argues the slippery slope: allowing the exemption would widen enormously, it says, the scope of RFRA’s protection, providing owners of secular, for-profit companies the power currently reserved for religious organizations under Title VII to claim religion-grounded exceptions to federal laws. See 42 U.S.C. § 2000e-1(a) (“This subchapter shall not apply to . . . a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.”). Granting an exemption to Weingartz Supply Co. would, of course, affect only its 170 employees and their dependents. Considering this in the context of a United States population of more than 311 million, an exemption for a few hundred seems a minuscule hindrance to whatever interest, compelling or otherwise, the Government may seek to advance. But owners of other secular, for-profit companies could perhaps qualify for equivalent exemptions, serving to undermine various interests the Government presently seeks to advance.
While Plaintiffs argue generally that contraceptive services and products are widely available for little if any cost, it remains unproven and unclear to the court at this early stage of the case; i.e., how can Weingartz Supply Co.’s employees alternatively
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acquire, without cost-sharing, the full range of FDA-approved contraceptive methods in the absence of the HRSA Mandate? Cf. Wisconsin v. Yoder, 406 U.S. 205, 224–25 (1972) (holding that the Government’s interest in compulsory school attendance through age sixteen, which substantially burdened the Amish practice of declining to send their children to formal education after eighth grade, failed the compelling interest test because the Amish continued to provide vocational education for their children in their adolescent years). If, consistent with Yoder, Plaintiffs were to prevail on their alternate means argument, they would overwhelm, or at least greatly reduce, the impact of the Government’s compelling interest argument. The court has no doubt that every level of Government has an interest in promoting public health as a general matter, but remains uncertain that the Government will be able to prove a compelling interest in promoting the specific interests at issue in this litigation.
3. Least Restrictive Means If the Government meets the compelling interest test, it next would be required to then prove that it has chosen “the least restrictive means” of furthering that interest. 42 U.S.C. § 20000bb-1(b)(2). What constitutes the “least restrictive means” and how it is determined is subject to significant debate. The Supreme Court has held that statutes fail the least restrictive means test when they are “overbroad” or “underinclusive.” See Church of the Lukumi Bablu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993). The Government argues that the HRSA Mandate is neither overbroad nor underinclusive because it appropriately balances what the Government posits as the competing interests at stake: allowing exemption for non-profit religious organizations while
21

requiring secular, for-profit companies to abide by the HRSA Mandate. As the Supreme Court explained in United States v. Lee:
Congress and the courts have been sensitive to the needs flowing from the Free Exercise Clause, but every person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs. When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. 455 U.S. 252, 261 (1982). The Sixth Circuit describes the least restrictive means test as “the extent to which accommodation of the [plaintiff] would impede the state’s objectives,” and explains that “[w]hether the state has made this showing depends on a comparison of the cost to the government of altering its activity to allow the religious practice to continue unimpeded versus the cost to the religious interest imposed by the government activity.” S. Ridge Baptist Church v. Indus. Comm’n, 911 F.2d 1203, 1206 (6th Cir. 1990). Granting Weingartz Supply Co. an exemption would impede marginally the Government’s interests. However, it is unclear whether the “cost” to the Government of being required to honor an exemption—a cost expressed in terms of its inability not to prohibit some behavior, but to affirmatively require an employer to provide cost-free access to contraception—is greater than the spiritual “cost” to the Weingartz Plaintiffs were the HRSA Mandate to be fully enforced. The cost to Plaintiffs appears provably substantial. The cost to the Government appears provably small in the context of this single case, but a larger cost might be found somewhere downstream, along the imagined slippery slope.
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The Tenth Circuit has extensively discussed the inherent difficulty of the least
restrictive means test:
[T]he notion that the government must prove that it has used the l“east restrictive means,” or that “no alternative forms of regulation” would suffice to serve its interests, is an odd creat ure. On its face, it requires the government to prove a negaitve—that no matter how long one were to sit and think about the question, one could nev er come up with an alternative regulation that adequately serves the co mpelling interest while imposing a lesser burden on religion. This is a formdi able task. . . . In the abstract, such a thing can never be proven conclusively; the ingenuity of the human mind, especially if freed from the practical constraints of policymaking and politics, is infinite.
Thus, a number of courts that have considered the least restrictive means question . . . have held that t he government should not be required “to refute ever y conceivable option in order to satisfy the least restrictive means prong of RFRA.” Hamilton v. Schriro, 74 F.3d 1545, 1556 (8th Cir. 1996) (characterizing such a requirement as a “herculean burden”); accord Fowler v. Crawford, 534 F.3d 931, 940 (8th Cir. 2008) (considering the identical language of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”)); Spratt v. R.I. Dep’t of Corr., 482 F.3d 33, 41 n.11 (1st Cir. 2007) (RLUIPA claim); May v. Baldwin, 109 F.3d 557, 563 (9th Cir. 1997) (RFRA claim). Not requi ring the government to do the impossible—refute each and ever y conceivable alternat ive regulation scheme—ensures that scrutiny of federal laws under RFRA is not “strict in theory, but fatal in fact.” Thus the gov ernment’s burden is two-fo ld: it must support its choice of regulation, and it must refute the alternative schemes offered by the challenger, but it must doboth through the evidence presented in the record.
United States v. Wilgus, 638 F.3d 1274, 1288–89 (10th Cir. 2011) (internal citations
omitted). The Wilgus test effectively exempts the Government from being required to
affirmatively prove what the statute requires, i.e., that it has employed “the least
restrictive means of furthering [its] compelling governmental interest,” 42 U.S.C.
§ 2000bb-1(b)(2), casting the burden on a plaintiff to offer “alternative schemes” which
then are subject to being refuted, with evidence, by the Government. The Government
argues that Wilgus strikes an appropriate balance between retaining some burden on
23

the Government without requiring it “to do the impossible.” Neither the Supreme Court nor the Sixth Circuit has adopted Wilgus.
Plaintiffs have thus far proposed two alternatives to the HRSA Mandate: (1) women may obtain contraceptive needs at community health centers; or (2) the Government should directly provide women with preventive care through an administrative agency. The Government argues that neither is feasible. More than half (57%) of publicly funded health centers cannot provide certain contraceptive methods due to the high cost, Jennifer J. Frost, et al., Variation in Service Delivery Practices Among Clinics Providing Publicly Funded Family Planning Services in 2010, Guttmacher Institute 43 (2012), available at http:// www.guttmacher.org/ pubs/ clinic-survey-2010.pdf, meaning women would be unable to obtain free access to “the full range of FDA-approved contraceptive methods,” depending on their local health center’s financial situation. Community centers also do not provide free contraception to all women. Instead, these centers typically implement a sliding scale fee program, in which a patient’s fee is determined by her annual income, household size, and desired treatment. See, e.g., Sliding Scale Services, Mt. Baker Planned Parenthood, http:// www.plannedparenthood.org/ mbpp/ files/ mt-baker/ Family_Planning_Sliding_Scale_Service.pdf (last visited Oct. 11, 2012). The court engaged the Government in some preliminary discussion at oral argument about such costs being made refundable by the well-known scheme of credits offered through the existing Internal Revenue System, but no definitive response or analysis has thus far been presented.
24

Plaintiffs’ alternative prospect of establishing a separate agency whose purpose would be to provide contraception to women raises a host of administrative and logistical problems, well pointed-out by the Government’s response, and does not appear practical.
Analyzing the least restrictive means under the Supreme Court, Sixth Circuit, and Tenth Circuit tests, it appears to the court possible, but not strongly so, that the Government may meet its burden at trial.
Neither Plaintiffs nor the Government have shown a strong likelihood of success on the merits.
C. Irreparable Harm to Plaintiff Will Plaintiffs suffer irreparable harm if an injunction is not granted? Violation of a First Amendment right in itself constitutes irreparable harm. Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”). When First Amendment freedoms are at risk, the irreparable harm factor “merges” with the likelihood of success, such that if the plaintiff shows he is likely to succeed on the merits, he has simultaneously proven he will suffer an irreparable harm. See McNeilly v. Land, 684 F.3d 611, 620–21 (6th Cir. 2012) (“Once a probability of success on the merits was shown, irreparable harm followed. . . . Because [the plaintiff] does not have a likelihood of success on the merits, . . . his argument that he is irreparably harmed by the deprivation of his First Amendment rights also fails.”); Connection Distributing Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998) (“Thus, to the extent that [the plaintiff] can establish a substantial likelihood of success on the merits of its First Amendment claim, it also has established
25

the possibility of irreparable harm as a result of the deprivation of the claimed free speech rights.”).
The possibility that the Government will be able to convince the court of either the compelling nature of the interests it seeks to advance, or that the means it has chosen are the least restrictive, is negatively correlated with Plaintiffs’ likelihood of success on the merits. As the court concluded in the preceding section, Plaintiffs have made some showing, but not strongly so, of a likelihood of success on the merits, and the Government has made some showing, but not strongly so, of advancing a “compelling” interest by the “least restrictive means.” The potential for harm to Plaintiffs exists, and with the showing Plaintiffs have made thus far of being able to convincingly prove their case at trial, it is properly characterized as irreparable.
D. Impact on Public Interest “The public as a whole has a significant interest in ensuring equal protection of the laws and protection of First Amendment liberties.” Jones v. Caruso, 569 F.3d 258, 278 (6th Cir. 2009). Similar to the irreparable harm analysis, therefore, “the determination of where the public interest lies also is dependent on a determination of the likelihood of success on the merits of the First Amendment challenge because it is always in the public interest to prevent the violation of a party’s constitutional rights.” Connection Distributing Co., 154 F.3d at 288; see also McNeilly, 684 F.3d at 621 (“Given the failure to show a substantial likelihood of success on the merits of [the plaintiff’s] claim that the contribution limits are unconstitutional, the district court’s conclusion that ‘the [adverse] effect on the public and the public interest’ from enjoining the enforcement of the statute . . . ‘would be very significant’ is also proper.”).
26

A preliminary injunction would serve the public interest to the extent that each
party has made some showing of a likelihood of success on the merits, as described in
section C above.
E. Balancing of Harm Finally, the court must balance the harm to Plaintiffs if the injunction were denied
with the harm to the Government if the injunction is granted. The purpose of the
balance of harms test is
to underscore the flexibility which traditi onally has characterized the law of equity. It permits the district court, in its discretion, to grant a preliminary injunction even where the plaintiff fails to show a strong or substantial probability of ultimate success on the m erits of his claim , but where he at least shows serious questions going tothe merits and irreparable harm which decidedly outweighs any potential harm to the defendant if the injunction is issued.
Jones v. Caruso, 569 F.3d at 277 (quoting Friendship Materials, Inc. v. Mich. Brick, Inc.,
679 F.2d 100, 104 (6th Cir. 1982)) (emphasis added).
The court began the motion hearing by observing that this case will continue
regardless of whether a preliminary injunction is granted, to which both parties agreed.
Due to the legal and factual issues involved, a discovery schedule of at least 90 to 120
days will be required, after which a trial must be held (unless dispositive motion practice
occurred, which would require its own, separate time line of a number of months). No
ruling on the merits can occur, therefore, until well after January 1, 2013, the date on
which Weingartz and Weingartz Supply Co. will be required to abide by the HRSA
Mandate absent an injunction.
The fact that a ruling on the merits will unquestionably occur after January 1,
2013, is significant. Denying Plaintiffs a preliminary injunction will effectively grant the 27

Government a default success on the merits—at least until Weingartz Supply Co. can change its health insurance policy to exclude contraception if Weingartz were to succeed at trial. As already discussed, Plaintiffs have shown some, but not a strong likelihood of success on the merits. The Government is in a similar position with respect to proof of compelling interest and least restrictive means, about both of which there remain serious but unanswered questions. Furthermore, the court reiterates that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).
The Government will suffer some, but comparatively minimal harm if the injunction is granted. Connection Distributing Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998) (noting that “the government presumably would be substantially harmed if enforcement of a constitutional law . . . were enjoined”).
The harm in delaying the implementation of a statute that may later be deemed constitutional must yield to the risk presented here of substantially infringing the sincere exercise of religious beliefs. The balance of harms tips strongly in Plaintiffs’ favor. A preliminary injunction is warranted.
IV. CONCLUSION IT IS ORDERED that “Plaintiffs’ Motion for a Preliminary Injunction” [Dkt. # 13] is GRANTED with respect to Daniel Weingartz and Weingartz Supply Company and DENIED WITHOUT PREJUDICE with respect to Legatus. Plaintiffs are DIRECTED to submit forthwith a form of Preliminary Injunction consistent with this Opinion.
28

The Government is DIRECTED to file a brief statement describing the status of the amendment process for final regulations occurring under the temporary enforcement safe harbor not later than the first Monday of each month.
The court will set a scheduling conference by separate order. s/Robert H. Cleland
ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE Dated: October 31, 2012 I hereby certify that a copy of the foregoing document was mailed to counsel of record on this date, October 31, 2012, by electronic and/or ordinary mail.
s/Lisa Wagner Case Manager and Deputy Clerk (313) 234-5522
S:\Cleland\JUDGE'S DESK\C1 ORDERS\12-12061.LEGATUS.Grant.Prelim.Inj.wpd
29

 
 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LEGATUS; WEINGARTZ SUPPLY COMPANY; and DANIEL WEINGARTZ, President of Weingartz Supply Company,

Plaintiffs,

v.

Case No. 12-12061

KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; HILDA SOLIS, Secretary of the United States Department of Labor; UNITED STATES DEPARTMENT OF LABOR; TIMOTHY GEITHNER, Secretary of the United States Department of the Treasury; and UNITED STATES DEPARTMENT OF THE TREASURY,

Defendants. /

ORDER GRANTING STAY OF DISTRICT COURT PROCEEDINGS AND ADMINISTRATIVELY CLOSING CASE

On October 31, 2012, the court entered an order granting in part and denying in

part Plaintiffs’ motion for a preliminary injunction. Both parties appealed the court’s

order to the Sixth Circuit on January 14, 2013. The parties have filed a joint motion to

stay the proceedings in this court pending a final resolution by the Sixth Circuit. On

January 31, 2013, the court held an on-the-record telephonic conference with the

parties to discuss the motion. The Sixth Circuit will likely address the same legal issues

that this court will consider if the case proceeds. The court finds that it would be

inefficient for the parties to concurrently litigate these issues in both courts. Granting a stay is warranted. Accordingly,
IT IS ORDERED that the joint motion to stay district court proceedings [Dkt. # 51] is GRANTED. The case is STAYED pending a final resolution by the Sixth Circuit of the parties’ appeals. The injunction granted by this court on November 13, 2012, remains in effect during the pendency of the appeals. The Government is DIRECTED to continue to file its monthly status updates to the court as ordered on October 31, 2012.
IT IS FURTHER ORDERED that the clerk of the court is DIRECTED to close the case for statistical purposes only. Nothing in this order or in the related docket entry shall be considered a dismissal of this matter. Any party has the right, at any time, to reopen the case upon notice and move to lift the stay for further consideration. The case will be immediately reopened, with all rights preserved as of the date of this order.
s/Robert H. Cleland ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE Dated: January 31, 2013 I hereby certify that a copy of the foregoing document was mailed to counsel of record on this date, January 31, 2013, by electronic and/or ordinary mail.
s/Lisa Wagner Case Manager and Deputy Clerk (313) 234-5522
S:\Cleland\JUDGE'S DESK\C1 ORDERS\12-12061.LEGATUS.Grant.Stay.Close.Case.wpd
2

 
 2:12-cv-12061-RHC-MJH Doc # 22 Filed 09/17/12 Pg 1 of 17 Pg ID 380

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LEGATUS; WEINGARTZ SUPPLY COMPANY; )

and DANIEL WEINGARTZ, President of

)

Weingartz Supply Company,

)

)

Plaintiffs,

)

)

v.

)

)

KATHLEEN SEBELIUS, Secretary of the United )

States Department of Health and Human Services; )

UNITED STATES DEPARTMENT OF HEALTH )

AND HUMAN SERVICES; HILDA SOLIS,

)

Secretary of the United States Department of

)

Labor; UNITED STATES DEPARTMENT OF )

LABOR; TIMOTHY GEITHNER, Secretary of the )

United States Department of the Treasury;

)

UNITED STATES DEPARTMENT OF THE

)

TREASURY,

)

)

Defendants.

)

Case No.: 2:12-cv-12061-RHC-MJH
Judge Robert H. Cleland Magistrate Judge Michael Hluchaniuk

AMICUS CURIAE BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION AND THE AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN IN OPPOSITION TO
PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

2:12-cv-12061-RHC-MJH Doc # 22 Filed 09/17/12 Pg 2 of 17 Pg ID 381 TABLE OF CONTENTS
TABLE OF CONTENTS...................................................................................................................i TABLE OF AUTHORITIES .............................................................................................................ii INTRODUCTION .............................................................................................................................1 FACTUAL BACKGROUND ............................................................................................................2 ARGUMENT .....................................................................................................................................5 CONCLUSION ..................................................................................................................................12
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TABLE OF AUTHORITIES Cases Bob Jones University v. United States, 461 U.S. 574 (1983) ..................................................... 6, 7 Catholic Charities of Diocese of Albany v. Serio , 859 N.E.2d 459 (N.Y. 2006) .......................... 9 Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67 (Cal. 2004) ....................... 9 Dole v. Shenandoah Baptist Church, 899 F.2d 1389 (4th Cir. 1990)............................... 5, 6, 7, 10 EEOC v. Fremont Christian School, 781 F.2d 1362 (9th Cir. 1986) ........................................... 10 EEOC v. Kamehameha Schools/Bishop Estate, 990 F.2d 458 (9th Cir. 1993)............................... 5 Erzinger v. Regents of University of California,
137 Cal. App. 3d 389 (Cal. Ct. App. 1982).......................................................................... 11-12 Goehring v. Brophy, 94 F.3d 1294 (9th Cir. 1996), overruled on other grounds by City of Boerne
v. Flores, 521 U.S. 507 (1997) .................................................................................................. 11 Hamilton v. Southland Christian School, Inc., 680 F.3d 1316 (11th Cir. 2012) .......................... 12 Newman v. Piggie Park Enter., Inc., 256 F. Supp. 941 (D.S.C. 1966), aff’d in relevant part and
rev’d in part on other grounds, 377 F.2d 433 (4th Cir. 1967), aff’d and modified on other grounds, 390 U.S. 400 (1968) ........................................................................................... 6, 7, 12 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) ..................... 9 Tarsney v. O’Keefe, 225 F.3d 929 (8th Cir. 2000) ....................................................................... 11 Statutes 42 U.S.C. § 2000e ......................................................................................................................... 10 42 U.S.C. § 2000e-1...................................................................................................................... 10 Patient Protection and Affordable Care Act, Pub. L. No. 111-148, sec. 1001, § 2713(a), 124 Stat. 131 (2010) ................................................................................................................................... 2 Regulations 45 C.F.R. § 147.130(a)(iv).............................................................................................................. 4 45 C.F.R. § 147.130(b)(1)............................................................................................................... 3 Other Authorities
ii

2:12-cv-12061-RHC-MJH Doc # 22 Filed 09/17/12 Pg 4 of 17 Pg ID 383 155 Cong. Rec. at S12020 (daily ed. Dec 1, 2009)..................................................................... 2, 3 155 Cong. Rec. S11979 (daily ed. Nov. 30, 2009) ..................................................................... 2, 3 77 Fed. Reg. 16501 ......................................................................................................................... 4 77 Fed. Reg. 8725 ....................................................................................................................... 4, 9 Claudia Goldin & Lawrence F. Katz, The Power of the Pill: Oral Contraceptives and Women’s
Career and Marriage Decisions, 110 J. of Pol. Econ. (2002) .................................................... 8 Cornelia T.L. Pillard, Our Other Reproductive Choices: Equality in Sex Education,
Contraceptive Access, and Work-Family Policy, 56 Emory L.J. 941 (2007) .......................... 8-9 Health Resources and Services Administration, U.S. Dep’t of Health & Human Services,
Women’s Preventive Services: Required Health Plan Coverage Guidelines, http://www.hrsa.gov/womensguidelines/. ................................................................................... 4 INSTITUTE OF MEDICINE, CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS (prepublication ed.) (2011).................................................................................................. 3, 4, 5 Martha J. Bailey, et al., The Opt-In Revolution? Contraception and the Gender Gap in Wages (2012) .......................................................................................................................................... 8 Su-Ying Liang et al., Women’s Out-of-Pocket Expenditures and Dispensing Patterns for Oral Contraceptive Pills between 1996 and 2006, 83 Contraception 491 (June 2010) ...................... 4
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INTRODUCTION The American Civil Liberties Union and the American Civil Liberties Union Fund of Michigan (collectively “ACLU”) submit this amicus brief in support of Defendants’ opposition to Plaintiffs’ motion for a preliminary injunction, specifically on the issue of whether Plaintiffs are likely to succeed on the merits of their claims. The right to practice one’s religion, or no religion, is a core component of our civil liberties and is of vital importance to the ACLU. For this reason, Amici routinely bring cases designed to protect individuals’ right to worship and express their religious beliefs. The ACLU is also fiercely committed to fighting discrimination and inequality, including discrimination based on gender. Indeed, since 1972, the ACLU has worked to secure gender equality and ensure that women and girls are able to lead lives of dignity, free from violence and discrimination. An important component of gender equality is the ability of women to have full control of their reproductive lives, and to be able to decide whether and when to have children. Amici do not repeat the arguments presented by Defendants. Rather, Amici submit this brief to provide historical context to support Defendants’ argument that Plaintiffs are unlikely to succeed on the merits of their claim that the federal contraception rule infringes on Plaintiffs’ religious liberty. The claims raised by Plaintiffs – that they have a right to discriminate against women and deny them benefits because of the companies’ owners’ religious beliefs – are, unfortunately, not new. Regrettably, not so very long ago, a secular school instituted a “Protestant-only” hiring policy based on the school’s founder’s religious preferences; employers claimed their right to religious freedom entitled them to pay men – who they considered to be the head of household based on their religious beliefs – more than women; businesses claimed that their right to religious liberty entitled them to discriminate against African-American customers
1

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in public accommodations; and universities claimed a religious liberty right to discriminate against African-American students. Fortunately, in each of these cases, courts squarely rejected the claims, recognizing that the right to religious liberty does not encompass the right to discriminate against others. This Court should come to the same conclusion here. Indeed, acceptance of Plaintiffs’ claims would not only contravene this clear and consistent precedent, but would also open the door for arguments that countless anti-discrimination and other important laws should be unenforceable in the face of a claim that the discrimination is mandated by a religious belief.
FACTUAL BACKGROUND The Patient Protection and Affordable Care Act (“ACA”) provides that certain preventive services must be provided in health insurance plans without cost-sharing. Pub. L. No. 111-148, sec. 1001, § 2713(a), 124 Stat. 131 (2010). In an effort to help eliminate some forms of gender inequality by equalizing men and women’s health care coverage, Congress added the Women’s Health Amendment (“WHA”) to the ACA, which requires health insurance plans to cover additional preventive services for women. Pub. L. No. 111-148, sec. 1001, § 2713(a)(4), 124 Stat. 131 (2010).
The WHA was crucial to ensuring that women receive coverage for preventative services. Indeed, prior to its introduction, coverage for these services were absent from the ACA. See 155 Cong. Rec. S11979, S11987 (daily ed. Nov. 30, 2009) (statement of Sen. Mikulski) (noting that the ACA did not cover key preventive services for women). In passing the WHA, Senator Reid explained that the WHA was necessary for “millions of women who are being discriminated against . . . .” 155 Cong. Rec. at S12020 (daily ed. Dec 1, 2009) (statement of Sen. Reid). As Senator Mikulski noted: “Often those things unique to women have not been
2

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included in health care reform. Today we guarantee it and we assure it and we make it affordable by dealing with copayments and deductibles . . . .” 155 Cong. Rec. at S11988 (daily ed. Nov. 30, 2009) (statement of Sen. Mikulski) (emphasis added). In particular, Congress intended to address gender disparities in out-of-pocket health care costs, much of which stem from reproductive health care:
Not only do [women] pay more for the coverage we seek for the same age and the same coverage as men do, but in general women of childbearing age spend 68 percent more in out-of-pocket health care costs than men. . . . This fundamental inequity in the current system is dangerous and discriminatory and we must act. The prevention section of the bill before us must be amended so coverage of preventive services takes into account the unique health care needs of women throughout their lifespan. 155 Cong. Rec. at S12027 (daily ed. Dec. 1, 2009) (statement of Sen. Gillibrand). To implement the WHA, the Institute of Medicine (“IOM”), an independent, nonprofit organization that works outside of government to provide unbiased and authoritative advice to decision makers and the public, “review[ed] what preventive services are necessary for women’s health and well-being” and developed recommendations for comprehensive guidelines. INSTITUTE OF MEDICINE, CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS 1 (prepublication ed.) (2011) (“CLOSING THE GAPS”). Among other things, the report recommended that the preventative services include “the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” Id. at 94. On August 1, 2011, the Department of Health and Human Services (“HHS”) adopted these recommendations, including the recommendation on contraceptive services. See 45 C.F.R. § 147.130(b)(1); Health Resources
3

2:12-cv-12061-RHC-MJH Doc # 22 Filed 09/17/12 Pg 8 of 17 Pg ID 387
and Services Administration, U.S. Dep’t of Health & Human Services, Women’s Preventive Services: Required Health Plan Coverage Guidelines, http://www.hrsa.gov/womensguidelines/.1
In announcing the final rule, the government recognized that the ability to access
contraception is essential to women’s ability to participate fully in society. Indeed, as the
government explained, the inability of women to access contraception
places women in the workforce at a disadvantage compared to their male co-workers. Researchers have shown that access to contraception improves the social and economic status of women. Contraception coverage, by reducing the number of unintended and potentially unhealthy pregnancies, furthers the goal of eliminating this disparity by allowing women to achieve equal status as healthy and productive members of the job force. . . . The [federal government] aim[s] to reduce these disparities by providing women broad access to preventative services, including contraceptive services.
77 Fed. Reg. 8725, 8728.
In addition, the government recognized that cost is a real barrier to contraceptive access.
The IOM found that “[d]espite increases in private health insurance coverage of contraception
since the 1990s, many women do not have insurance coverage or are in health plans in which
copayments for visits and for prescriptions have increased in recent years.” CLOSING THE GAPS
at 94. Contraceptive copays can be so expensive that women can pay almost as much out-of-
pocket as they would without coverage at all. Su-Ying Liang et al., Women’s Out-of-Pocket
Expenditures and Dispensing Patterns for Oral Contraceptive Pills between 1996 and 2006, 83
Contraception 491, 531 (June 2010). Cost barriers are aggravated by the fact that women
“typically earn less than men and [] disproportionately have low incomes.” CLOSING THE GAPS
at 19. Women who lack access to contraception face “barriers . . . that prevent women from
1 The contraception rule exempts houses of worship, 45 C.F.R. § 147.130(a)(iv)(A) and (B), and the federal government is in process of modifying the rule as applied to religiously affiliated non-profit employers. The modification will ensure employees will receive contraception coverage but that the employer will not bear the cost, 77 Fed. Reg. 16501.
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achieving health and well-being for themselves and their families.” Id. at 20. The federal contraception rule, if undisturbed, will ensure that millions of women have access to contraception without cost barriers, thereby equalizing the health insurance costs between women and men and ensuring women’s ability to equally participate in society.
ARGUMENT One of the main questions in this case is whether secular, for-profit corporations can discriminate against their female employees by denying them the benefits the government has found to be a critical means of helping promote women’s equality and eradicating discrimination. While today’s controversy centers around health insurance benefits for contraception, the fundamental question – whether religious objections can trump neutral laws designed to eradicate discrimination – is not unique to this context. Indeed, it has arisen in numerous other contexts over the last five decades. For example: ● Almost twenty years ago, in 1993, an secular, private school maintained a “Protestant-only” hiring policy based on the school’s founder’s religious beliefs. Based on this policy, the school refused to hire a substitute French language teacher because she was not Protestant. EEOC v. Kamehameha Schs./Bishop Estate, 990 F.2d 458 (9th Cir. 1993). ● In 1976, Roanoke Valley Christian Schools added a “head of household” supplement to their teachers’ salaries – but only for heads of household as determined by scripture. For Roanoke Valley, that meant married men. According to the church pastor affiliated with the school, “[w]hen we turned to the Scriptures to determine head of household, by scriptural basis, we found that the Bible clearly teaches that the husband is the head of the house, head of the wife, head of the family.” Dole v. Shenandoah Baptist Church, 899 F.2d 1389, 1392 (4th Cir. 1990). When sued under the Equal Pay Act, Roanoke Valley claimed a
5

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right to an exemption from equal pay laws because its “head-of-household practice was based on a sincerely-held belief derived from the Bible.” Id. at 1397.
● In 1966, three African-American residents of South Carolina brought a suit against Piggie Park restaurants, and their owner, Maurice Bessinger, for refusal to serve them. Bessinger argued that enforcement of the Civil Rights Act of 1964’s public accommodations provision violated his religious freedom “since his religious beliefs compel[ed] him to oppose any integration of the races whatever.” Newman v. Piggie Park Enter., Inc., 256 F. Supp. 941, 944 (D.S.C. 1966), aff’d in relevant part and rev’d in part on other grounds, 377 F.2d 433 (4th Cir. 1967), aff’d and modified on other grounds, 390 U.S. 400 (1968)
● In the 1980s, Bob Jones University, a religiously affiliated school in South Carolina, wanted an exemption from a rule denying tax-exempt status to schools that practice racial discrimination. The “sponsors of the University genuinely believe[d] that the Bible forbids interracial dating and marriage,” and it was school policy that students engaged in interracial relationships, or advocacy thereof, would be expelled. Bob Jones Univ. v. U.S., 461 U.S. 574, 580 (1983). Bob Jones’s lesser known co-plaintiff, Goldsboro Christian Schools, even opposed integration of the classroom. According to their interpretation of the Bible, “[c]ultural or biological mixing of the races is regarded as a violation of God’s command.” Id. at 583 n.6 (citations omitted).
In each of these cases, entities and individuals tried to invoke the mantle of religious freedom to avoid compliance with laws designed to advance equality, and each time their claims were rejected. As these cases recognized, the right to religious liberty is not absolute. It does not give businesses or individuals carte blanche to discriminate against others, deny others their rights, ignore important laws, or foist their religious beliefs on their employees. As the District
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Court in South Carolina explained in rejecting the free exercise claim of a restaurant owner who refused to serve African-American customers:
Undoubtedly defendant . . . has a constitutional right to espouse the religious beliefs of his own choosing, however, he does not have the absolute right to exercise and practice such beliefs in utter disregard of the clear constitutional rights of other citizens. This court refuses to lend credence or support to his position that he has a constitutional right to refuse to serve members of the Negro race in his business establishments upon the ground that to do so would violate his sacred religious beliefs. Newman, 256 F. Supp. at 945. As these cases make clear, because religious liberty is not absolute, religious liberty must yield to laws that were passed to further a compelling government interest. This includes laws designed to promote equality and eradicate discrimination. See, e.g., Shenandoah Baptist Church, 899 F.2d at 1398 (religious school must comply with the Equal Pay Act, which was passed to address “serious and endemic problem of employment [gender] discrimination,” which is a compelling government interest); Bob Jones Univ., 461 U.S. at 604 (religious school could not be exempt from IRS policy that required such schools to have nondiscriminatory policies, because eradication of racial discrimination in education is a compelling government interest). The same is true here. As discussed above, and as the government points out in its brief, in passing the Women’s Health Amendment, Congress sought to eradicate gender discrimination in the context of the provision of health care. See Defs.’ Opp. to Pls.’ Mot. for Prelim. Inj. (“Defs.’ Br.”) at 25-26. In passing the ACA, Congress recognized that women of childbearing age pay substantially more for out-of-pocket health care than men, in part because of the costs of contraception. See supra at 3-4. These costs are not insignificant and are a true barrier to women’s access to effective birth control; and these financial barriers are aggravated by the fact that women typically earn less than men. Id. As Congress found, ensuring women receive the
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same benefits as men from their employers, and equalizing the existing health care disparities between men and women, is crucial. Id.
This is particularly true where, as here, the benefit at issue is part and parcel of women’s equality in other aspects of their life. The impact of the inability to access contraception falls primarily on women. Access to contraception gives women control of their fertility, enabling them to decide whether and when to become a parent, and allowing women to make educational and employment choices that benefit themselves and their families. For example, researchers have found that the availability of oral contraception has played a significant role in allowing women to attend college and choose post-graduate paths, including law, medicine, dentistry, and business administration. See Claudia Goldin & Lawrence F. Katz, The Power of the Pill: Oral Contraceptives and Women’s Career and Marriage Decisions, 110 J. of Pol. Econ., 730 (2002), available at http://www.nber.org/papers/w7527. Indeed, professional degree programs saw a sharp increase in women applicants around the time that oral contraceptives became widely available in 1970. Id.
Women’s ability to pursue professional careers because of the ability to control whether and when to have children significantly closed the wage gap between men and women. One study attributes to the pill one-third of the total wage gains for women born in the mid-1940s to early 1950s. Martha J. Bailey, et al., The Opt-In Revolution? Contraception and the Gender Gap in Wages, 26 (2012), available at http://wwwpersonal.umich.edu/~baileymj/Opt_In_Revolution.pdf. Succinctly put, “[w]omen cannot participate in society, learn, earn, govern, and thrive equally without the ability to determine whether and when to become mothers.” Cornelia T.L. Pillard, Our Other Reproductive Choices: Equality in Sex Education, Contraceptive Access, and Work-Family Policy, 56 Emory L.J. 941,
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976 (2007); see also id. at 975 (recognizing the importance of accessing contraception on the ability to participate in the work force, and without “the means to control and limit reproduction, the average woman would bear twelve to fifteen children in her lifetime”). The Supreme Court has also recognized the direct relationship between women’s reproductive health decisions and their equal participation in society: “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 856 (1992).
The federal government is not the only one to recognize and act on these gender disparities and the importance of access to contraception to women’s equality. Indeed, 28 states have passed laws requiring employers to cover contraception. 77 Fed. Reg. at 8728. Two of those states, California and New York, faced legal challenges similar to the one at issue here. The high courts of both states rejected those challenges in part because the laws were designed to eradicate gender discrimination in the workplace. See Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67, 92 (Cal. 2004) (recognizing that the statue was passed to equalize health insurance costs between men and women); Catholic Charities of Diocese of Albany v. Serio , 859 N.E.2d 459, 461, 468 (N.Y. 2006) (noting that the purpose of the statute was to advance equal treatment of women). Those courts acknowledged legislative history similar to that here: women pay much more than men in out-of-pocket health care costs, due in part to the cost of prescription contraception. See Catholic Charities of Sacramento, Inc., 85 P.3d at 92; Catholic Charities of Diocese of Albany, 859 N.E.2d at 468. Eradicating gender discrimination and disparities in health care costs is undoubtedly a compelling government interest, as
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recognized by the line of cases discussed above.2 See also EEOC v. Fremont Christian Sch., 781 F.2d 1362 (9th Cir. 1986) (holding that insurance plan offered only to “head of households,” namely men or single persons, violated Title VII and the Equal Pay Act, and rejecting the school’s free exercise claim because of the compelling government interest in eradicating gender discrimination). The federal contraception rule clearly furthers the compelling government interest of eliminating gender discrimination in the workplace and ensuring gender equality.3
Not only do these neutral anti-discrimination laws further a compelling government interest, but as courts have held, they also minimally – if at all – burden religion. For example, in Shenandoah, the court recognized that it would be – at most – a “limited” burden to require the school to comply with the Fair Labor Standards Act (“FLSA”) and pay its female teachers the same as men. As the court recognized, “[t]he fact that [the school] must incur increased payroll expenses to conform to FLSA requirements is not the sort of burden that is determinative in a free exercise claim.” 899 F.2d at 1398. So too here. Requiring Plaintiffs to provide their employees with a health plan that includes contraception coverage does not burden Plaintiffs’ religious exercise. The link between the contraceptive coverage requirement and the religiously prohibited behavior is simply too attenuated to amount to a substantial burden. See Defs.’ Br. at
2 As the government discusses, the rule also furthers the compelling interest in ensuring that women have appropriate health care. Defs.’ Br. at 25. 3 The federal contraception rule’s constitutionality is not affected by the fact that the ACA requires only those employers with 50 or more employees to provide health insurance, or that the contraception rule exempts houses of worship. See, e.g., Pls.’ Mot. for Prelim. Inj. at 21. Indeed, the same is largely true of Title VII of the Civil Rights Act of 1964. That statute applies to employers with 15 or more employees, and certain religious and religiously identified entities are exempt from the prohibition on discriminating based on an employee’s religion. See 42 U.S.C. §§ 2000e(b), 2000e-1(a). No court has ever intimated that Title VII’s exemptions renders the statute unconstitutional as applied to private business owners that seek to use their religious beliefs to discriminate. The similar, logistical exemptions to the contraception rule also do not undermine its constitutionality. See Defs.’ Br. at 29-31.
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21-24. The contraceptive coverage requirement does not require Plaintiffs to physically provide contraception to their employees nor does it require them to endorse the use of contraception. It merely requires Plaintiffs – like the employer in Shenandoah – to provide a nondiscriminatory benefit to its employees.4
Furthermore, another line of cases makes clear that Plaintiffs’ claimed injury – an objection to contributing to a health plan that provides coverage for health care services the Plaintiffs find objectionable – is not cognizable. In Goehring v. Brophy, for example, the court addressed and rejected a RFRA claim similar to Plaintiffs’ claim here. 94 F.3d 1294, 1297 (9th Cir. 1996), overruled on other grounds by City of Boerne v. Flores, 521 U.S. 507 (1997). In that case, public university students objected to a university’s requirement that they pay a registration fee on the ground that it was used to subsidize the school’s health insurance program, which covered abortion care. Id. The court rejected the plaintiffs’ RFRA and free exercise claims, reasoning that the payments did not impose a substantial burden on the plaintiffs’ religious beliefs. Id. at 1300. Moreover, in Tarsney v. O’Keefe, the Eighth Circuit affirmed the dismissal of a free exercise challenge by taxpayers who objected on religious grounds to the state’s use of their tax dollars to pay for Medicaid recipients’ medically necessary abortions. 225 F.3d 929, 932 (8th Cir. 2000). The payment of taxes that may ultimately subsidize other individuals’ Medicaid abortion coverage, the court explained, was too remote an injury even to accord standing upon the plaintiffs to assert a free exercise claim. Id. at 936; accord Erzinger v. Regents
4 The contraception rule is also the least restrictive means of eradicating discrimination in the workplace. Although Plaintiffs point to alternatives to the contraception rule – such as direct provision of contraception by the government – such alternatives would not accomplish the government’s goal of ensuring gender equality. Indeed, there could be no argument that the public accommodations law invoked in Piggie Park is unconstitutional because the government could simply provide African Americans who were turned away from Piggie Park with food. Such an alternative does not further the government’s goal of ending discrimination. The same is true here.
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of Univ. of Cal., 137 Cal. App. 3d 389, 393 (Cal. Ct. App. 1982) (“[T]he fact [that] plaintiffs may object on religious grounds to some of the services the University provides is not a basis upon which plaintiffs can claim a constitutional right not to pay a part of the fees.”). Accordingly, just like those who have objected to paying insurance premiums for an insurance plan that others may use to access abortion care, or taxes that pay for Medicaid, which may be used to cover another’s abortion, Plaintiffs here cannot claim any cognizable injury by providing their employees with a health plan that covers contraception, which some employees may use.
CONCLUSION History has a way of repeating itself. Plaintiffs are attempting to resurrect the longdiscredited notion that religion can be used to trump anti-discrimination or other important laws. Unfortunately, others have recently tried to do so in other contexts. For example, a religious school claimed that firing a teacher for asking to take maternity leave was justified by its religious belief that she should not have conceived a child outside of marriage. Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316 (11th Cir. 2012). Plaintiffs’ argument is based on the incorrect notion that religion can be used as a license to discriminate. This Court should follow the wise words from the district court in South Carolina five decades ago, and refuse to “lend credence or support” to the position that entities have a constitutional right to refuse to comply with laws designed to eradicate discrimination. Newman, 256 F. Supp. at 945. For the foregoing reasons, Plaintiffs’ motion for a preliminary injunction should be denied.
Respectfully submitted, /s/Michael J. Steinberg Michael J. Steinberg (P43085) Sarah Mehta (P76024)
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Dated: September 17, 2012.

Kary L. Moss (P49759) American Civil Liberties Union Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 (313) 578-6814 msteinberg@aclumich.org smehta@aclumich.org kmoss@aclumich.org
/s/ Brigitte Amiri Brigitte Amiri American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2633 bamiri@aclu.org New York State Bar No. 3017167

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 2:12-cv-12061-RHC-MJH Doc # 35 Filed 09/28/12 Pg 1 of 22 Pg ID 477

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LEGATUS; WEINGARTZ SUPPLY COMPANY; and DANIEL WEINGARTZ, President of Weingartz Supply Company,

Plaintiffs,

Case No. 2:12-cv-12061

v.

Honorable Robert Cleland

United States District Judge

KATHLEEN SEBELIUS, Secretary

Magistrate Judge Michael Hluchaniuk

of the United States Department of

United States Magistrate Judge

Health and Human Services;

UNITED STATES DEPARTMENT

OF HEALTH AND HUMAN SERVICES;

HILDA SOLIS, United States Department

of Labor; UNITED STATES DEPARTMENT

OF LABOR; TIMOTHY GEITHNER,

Secretary of the United States Department

of the Treasury; UNITED STATES

DEPARTMENT OF THE TREASURY,

Defendants. /

ATTORNEY GENERAL BILL SCHUETTE’S AMICUS BRIEF IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

THOMAS MORE LAW CENTER Richard Thompson, Esq. (P21410) Erin Mersino, Esq. (P70886) 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, MI 48106 emersino@thomasmore.org (734) 827-2001
LAW OFFICE OF CHARLES S. LIMANDRI Charles S. Limandri, Esq. (CA Bar No. 110841) Teresa Mendoza, Esq. (CA Bar No. 185820) P.O. Box 9120 Rancho Santa Fe, CA 92067 Tel (858) 759-9930
Attorneys for Plaintiffs

STUART F. DELERY Acting Ass’t Attorney General
BARBARA L. McQUADE United States Attorney Eastern District of Michigan
SHEILA M. LIEBER Deputy Branch Director
ETHAN P. DAVIS Trial Attorney, Civil Division Federal Programs Branch United States Dep’t of Justice 20 Massachusetts Ave. NW Washington, DC 20001 Tel: (202) 514-9242

Attorneys for Defendants

2:12-cv-12061-RHC-MJH Doc # 35 Filed 09/28/12 Pg 2 of 22 Pg ID 478

TABLE OF CONTENTS

Page

Table of Contents ............................................................................................................ i
Index of Authorities ....................................................................................................... ii
Statement of Interest of Amicus Curiae Attorney General ......................................... 1
Introduction ................................................................................................................... 2
Argument ....................................................................................................................... 4
I. The HHS mandate requiring Legatus and Weingartz Supply Company to cover contraception and related services violates their religious liberty under RFRA............................................................................................. 4
A. The HHS mandate to provide contraception imposes a substantial burden on Plaintiffs’ free exercise of religion. ..................... 5
B. The United States does not have a compelling interest in applying this mandate to Plaintiffs, particularly where there are less restrictive means by which it may achieve this end...................... 10
C. RFRA applies to businesses that operate according to religious principles even if they are not operated by a religious organization. ........................................................................................... 14
Conclusion and Relief sought ...................................................................................... 17

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INDEX OF AUTHORITIES

Page

Cases
Citizens United v. Federal Election Commission, 558 U.S. 310; 130 S. Ct. 876, 900 (2010) ................................................................. 14
Cutter v. Wilkinson, 423 F.3d 579 (6th Cir. 2005) ...................................................................................... 4
Employment Division v. Smith, 494 U.S. 872 (1990) .......................................................................................... 2, 4, 15
First National Bank of Boston v. Bellotti, 435 U.S. 765(1978) ................................................................................................... 15
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) ...................................................................................... 10, 12, 13
Holy Land Foundation for Relief and Development v. Ashcroft, 333 F.3d 156 (D.C. Cir. 2003) .................................................................................. 15
Hosanna-Tabor Evangelical Lutheran Church v. Equal Employment Opportunity Commission, 132 S.Ct. 694 (2012) ................................................................................................. 15
Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in North America, 344 U.S. 94 (1952) ..................................................................................................... 6
Newland v. Sebelius, ___ F. Supp. 2d ___, 2012 WL 3069154 (D. Colo. July 27, 2012).................... passim
People v. DeJonge, 442 Mich 266; 501 N.W.2d 127 (1993)....................................................................... 6
Sherbert v. Verner, 374 U.S. 398 (1963) ...................................................................................... 5, 7, 8, 10
United States v. Lee, 455 U.S. 252 (1982) .............................................................................................. 9, 10
Wisconsin v. Yoder, 406 U.S. 205 (1972) ............................................................................................ 5, 7, 8
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Statutes 42 U.S.C. § 2000bb(a) .................................................................................................... 4 42 U.S.C. § 2000bb(a)(2) ................................................................................................ 7 42 U.S.C. § 2000bb(b) .................................................................................................... 5 42 U.S.C. § 2000bb-1.................................................................................................... 15 42 U.S.C. § 2000bb-1(a) ................................................................................................. 4 Mich. Comp. Law § 14.28 .............................................................................................. 1 Other Authorities “Married Love and the Gift of Life,”
approved November 2006 by the United States Conference of Catholic Bishops. ...................................................................................................................... 6 45 C.F.R. § 147.130(A) ................................................................................................. 11 45 C.F.R. § 147.130(B) ................................................................................................. 11 Humanae Vitae, encyclical of Pope Paul VI, released on July 25, 1968........................................................................................... 6 Rules Fed. R. Civ. Pro. 7 .......................................................................................................... 1 Constitutional Provisions Mich. Const. art I, § 4 .................................................................................................... 1
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STATEMENT OF INTEREST OF AMICUS CURIAE ATTORNEY GENERAL The Michigan Constitution provides for the protection of religious worship, and also protects the religious liberty of Michigan citizens by guaranteeing that “[t]he civil and political rights, privileges and capacities of no person shall be diminished or enlarged on account of his religious belief.” Mich. Const. art I, § 4. The claim here was filed by Michigan residents Legatus, Weingartz Supply Company, and Daniel Weingartz, who claim that the HHS Mandate violates their religious liberty under the Religious Freedom Restoration Act and the First Amendment by requiring them to provide certain products and services in their insurance plans over their religious objections. Although the claims are not based on Michigan law, the principle of religious freedom is one of the central values in Michigan law and it implicates the role of the Attorney General, who is the chief legal officer for the State. Consistent with this role, the Attorney General is authorized by Michigan law, Mich. Comp. Law § 14.28, to safeguard the interests of the people of the State when in his judgment this is necessary. In the view of the Attorney General, the HHS Mandate is a substantial burden as applied against the religious practice of these plaintiffs and others like them under RFRA, and there is no compelling interest that justifies this violation. There also are other less restrictive means by which this may be achieved. The Amicus Curiae Brief of the State of Michigan prepared by the Attorney General is being filed pursuant to Fed. R. Civ. Pro. 7.
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INTRODUCTION “Nothing is more dreaded than the national government meddling with religion.”
John Adams (letter to Benjamin Rush, June 12, 1812)
Congress enacted the Religious Freedom Restoration Act (RFRA) in response to Employment Division v. Smith, 494 U.S. 872 (1990), which effectively immunized virtually any statute of general applicability from constitutional challenge. RFRA’s purpose was to restore a system of legal analysis to the First Amendment that would provide closer scrutiny to government’s actions that substantially burden Americans’ religious liberty. RFRA’s reinvigorated understanding of religious liberty is directly relevant here.
Plaintiffs have religious objections to the HHS Mandate’s requirement that plaintiffs provide certain reproductive products and services, including early abortion-inducing drugs, in the insurance plans to their employees, contrary to the unambiguous teachings of the Catholic Church. Legatus is a Catholic organization composed of Catholic business persons and seeks to educate its members about the Catholic faith. Weingartz Supply Company (with Daniel Weingartz as its president) is a family-owned business that is run consistent with Catholic principles. Each corporation has designed its health insurance policies with Blue Cross/Blue Shield to exclude contraceptives and other services that violate Plaintiffs’ religious principles. The HHS Mandate requiring Plaintiffs to provide reproductive products and services substantially burdens these principles under RFRA.
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The United States Government lacks a compelling interest justifying this burden on Plaintiffs or on other businesses that have equally-held religious objections to the HHS Mandate. The Act includes several significant exceptions, the most significant of which is the one that exempts health-insurance plans formed before March 23, 2012. The United States cannot contend that the mandate must be applied to all businesses without exception, and to Plaintiffs in particular, when more than 190 million plan participants are already exempted by the grandfathering provision. The only court that has examined this issue has preliminarily rejected the claim of the United States that its interest is compelling.
Given the considerable merits of the plaintiffs’ RFRA claim, the United States is forced to reach for an alternative argument: that RFRA applies only to businesses that are religious in nature and does not apply to secular ones. But this is not so. There is nothing in RFRA that limits its application to businesses that sell religious goods or are operated by a church. A business may be (and often is) animated by religious principles, even if the tasks it performs are secular in nature. This is true whether it is the Weingartz Supply Company selling outdoor power equipment, a Jewish-owned deli that does not sell non-Kosher foods, a Muslimowned financial brokerage that will not lend money for interest, or a hotel chain owned by religious persons that will not carry pornographic broadcasting.
The insidious effect of the United States Government’s argument is to push religious beliefs expressed by the ordinary person or business out of the public square. Religious liberty cannot be confined to the sanctuary and sacristy. Such a
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truncated view of religion threatens to create a barren public culture, denuded of the religious beliefs of ordinary American citizens. This is an important principle, and it applies to all Americans and to all faiths. Plaintiffs’ motion for preliminary injunction should be granted.
ARGUMENT
I. The HHS mandate requiring Legatus and Weingartz Supply Company to cover contraception and related services violates their religious liberty under RFRA. Under RFRA, Congress has provided for the protection of a person’s free
exercise of religion even from laws of “general applicability”: Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability[.]
42 U.S.C. § 2000bb-1(a). The only exception to this rule is when the government can prove that the burden (1) “is in furtherance of a compelling governmental interest,” and (2) “is the least restrictive means of furthering that compelling interest.” Id.
RFRA’s purpose was to return to the constitutional standards governing the First Amendment before the decision in Smith, 494 U.S. 872 (1990), which “virtually eliminated the requirement that the government justify burdens on religious exercise without compelling justification.” 42 U.S.C. § 2000bb(a). Accord Cutter v. Wilkinson, 423 F.3d 579, 582 (6th Cir. 2005). RFRA codified the “compelling interest” standard for laws of general application that substantially burdened the free exercise of religion. As RFRA itself explains, its purposes are:
(1) 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
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(1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and (2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government. 42 U.S.C. § 2000bb(b). There are three points the Attorney General wishes to advance in this amicus: (1) that the HHS Mandate imposes a substantial burden on Plaintiffs’ free exercise of religion; (2) there are no compelling reasons to apply the mandate to Plaintiffs and other similarly-situated persons, particularly where there are less restrictive means by which the United States could accomplish the objective of guaranteeing access to reproductive services; and (3) the argument that limits the application of RFRA and the First Amendment to religious businesses – as opposed to secular businesses – violates RFRA’s terms. This third argument is the one the Attorney General wishes to emphasize given its importance to all Michigan citizens, regardless of religious faith.
A. The HHS mandate to provide contraception imposes a substantial burden on Plaintiffs’ free exercise of religion.
There is no dispute that the plaintiff businesses, Legatus and Weingartz Supply Company, and the individual plaintiff, Daniel Weingartz as president of Weingart Supply Company, have built their employees’ health-insurance plans on Catholic principles. In specific, both Legatus and Weingartz Supply have designed a health insurance plan with Blue Cross/Blue Shield of Michigan that specifically excludes contraception, abortion, and other services because these things would conflict with the teachings of the Catholic Church. (Compl., ¶¶ 65, 82.)
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The teachings of the Catholic Church against contraception and abortion are clear. See “Married Love and the Gift of Life,” approved November 2006 by the United States Conference of Catholic Bishops.1 See also Humanae Vitae, encyclical of Pope Paul VI, released on July 25, 1968.2 And the courts generally defer to the official statements of religious organizations regarding their doctrines and disciplines. See Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in North America, 344 U.S. 94, 113 (1952) (“whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them”) (internal quotes omitted). This is because “[r]eligion . . . must be left to the conviction and conscience” of the person. People v. DeJonge, 442 Mich 266, 282; 501 N.W.2d 127 (1993).
The fact that the federal mandate at issue – requiring employers to provide contraception and other services in their insurance plans – is a rule of general applicability does not shield it from strict scrutiny under RFRA. That is the entire reason why Congress passed RFRA in the first instance. “[L]aws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise.” 42 U.S.C. § 2000bb(a)(2).
1 This document may be found online on the website of the USCCB at http://usccb.org/beliefs-and-teachings/what-we-believe/love-and-sexuality/marriedlove-and-the-gift-of-life.cfm (last visited on September 25, 2012). 2 The encyclical is available on the Vatican’s website at http://www.vatican.va/holy_father/paul_vi/encyclicals/documents/hf_pvi_enc_25071968_humanae-vitae_en.html (last visited September 25, 2012).
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The two cases that RFRA cites in its text, Sherbert, 374 U.S. 398 (1963) and Yoder, 406 U.S. 205 (1972), each examined state laws of general applicability. In Sherbert, the Supreme Court determined that the South Carolina law that disqualified a Seventh Day Adventist, who refused to work on Saturdays, from unemployment benefits had to yield to her free exercise of her religion. Sherbert, 374 U.S. at 410. Even though this was an “incidental burden” i.e., an unintended effect, the State was still required to come forward with a compelling interest to justify it. Id. at 403. The same was true in Yoder, where the obligation of Wisconsin law was for children to have compulsory education through age 16. Yoder, 406 U.S. at 207. The Court determined that this statute proved to be an unconstitutional burden on Amish children, and therefore was “beyond the power of the State to control, even under regulations of general applicability.” Id. at 220.
RFRA’s general standards for determining whether there is a “substantial burden” on a person’s exercise of religion also come from Sherbert and Yoder. The “disqualification for benefits” in Sherbert was a substantial burden on the plaintiff’s exercise of her religion because she was forced to choose between work and following the precepts of her religion:
The ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship. Sherbert, 374 U.S. at 404. The same is true here. The HHS Mandate requires Legatus and Weingartz Supply Company either to abandon their commitment to
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Catholic principles or otherwise face a yearly fine of $2,000 per employee for failing to provide health insurance for contraceptive (including early abortion-inducing drugs) and other services.
Likewise in Yoder, the Supreme Court determined that the requirement for Amish children to attend compulsory second education would substantially interfere with their religious development by exposing them to “worldly influences.” Yoder, 406 U.S. at 218. In short, it would “contravene[] the basic religious tenets and practices of the Amish faith.” Id. Again, the same is true here. The provision of contraception contravenes the basic religious tenets and practices of the Catholic Church.
Although there are distinctions between the businesses here and the individuals that were at issue in Sherbert and Yoder, the only court to have examined this RFRA claim for a private business and its family owners granted the preliminary injunction. See Newland v. Sebelius, ___ F. Supp. 2d ___, 2012 WL 3069154 (D. Colo. July 27, 2012). The district court did not resolve the legal issue on whether there was a substantial burden, but concluded that the issue required “more deliberate investigation”:
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.
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Newland, 2012 WL 3069154, *6. The court then went ahead and granted the preliminary injunction. The same can be said for the small businesses here, each of which professes to operate according to the parameters as established by the faith of their owners.
The United States Government argues that Weingartz Supply Company cannot complain about the burden imposed on it because it “elected to organize itself as a secular, for-profit entity and to enter commercial activity[.]” (United States, Opposition to Motion, p. 20.) This argument misunderstands the proper inquiry for whether there is a substantial burden on a person’s right to free exercise under RFRA. A person does not lose his right to free exercise of religion by engaging in action in the public sphere. In specific, the case on which the United States cites to support its claim, United States v. Lee, 455 U.S. 252, 257 (1982), only confirms Plaintiffs’ argument.
In Lee, the Supreme Court examined whether the Social Security tax imposed an unconstitutional burden on the Amish, and the Court concluded that because “the payment of the taxes or receipt of benefits violates Amish religious beliefs, compulsory participation in the social security system interferes with their free exercise rights.” Id. at 257.3 The Court ultimately determined that the Government’s interest were compelling. Id. at 260. Although the right to the free exercise of religion had to yield, there was nevertheless a substantial burden imposed on the Amish community.
3 Plaintiffs persuasively identify the United States Government’s error on this point. (Plaintiffs’ Reply, p. 6.)
9

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The danger of the United States’ error here is that it suggests that protections for religious liberty only apply as a category to the private realm and never the public one. The case in point to demonstrate this mistake is Adell Sherbert. She was fired because she would not work on Saturday and refused unemployment benefits for the same reason. Sherbert, 374 U.S. at 401. In contrast to the Amish community in Lee, the State in Sherbert had to yield because it could not demonstrate a compelling interest in enforcing this law against her. This was so even though Ms. Sherbert was not engaged in a religious occupation. The Supreme Court’s holding in Sherbert illustrates that an individual citizen need not leave her religious convictions at the corporate door.
B. The United States does not have a compelling interest in applying this mandate to Plaintiffs, particularly where there are less restrictive means by which it may achieve this end.
In O Centro, the Supreme Court outlined the proper analytical framework for determining whether there is a compelling governmental interest that justifies a substantial burden on a person’s religious liberty. See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006). The Court was careful to note that this examination requires an inquiry into whether there is a compelling interest to apply the government mandate to the “particular claimant whose sincere exercise of religion is being substantially burdened.” O Centro, 546 U.S. at 431. This narrowing of the inquiry damages the United States Government’s claim here where there is no dispute that the HHS Mandate already contains multiple exemptions: (1) a narrow exemption for religious organizations, (2) an exception for
10

2:12-cv-12061-RHC-MJH Doc # 35 Filed 09/28/12 Pg 15 of 22 Pg ID 491
employers with fewer than 50 employees, and (3) a grandfathering provision that exempts more than 190 million health plan participants. See Newland, 2012 WL 3069154, *7 (“this massive exemption [for grandfathered plans] completely undermines any compelling interest in applying the preventive care coverage mandate to Plaintiffs”).
The United States’s position–that the HHS Mandate requires national uniformity–cannot withstand strict scrutiny. Even excluding the grandfathering exemption on which the Newland court relied, the other exceptions demonstrate the lack of compelling nature in the Government’s claim.
The exception for religious organizations governs “religious employers” that primarily inculcate the religious belief of the religious organization, employ primarily persons who share the tenets of the religious group, and serve persons who share that religious faith. 45 C.F.R. § 147.130(A), (B). Just within the Catholic Church, this exception applies to more than 15,000 parishes. Center for Applied Research (CARA) of Georgetown University, “Frequently Requested Church Statistics.”4
As for the exemption regarding plans with fewer than 50 employees, the 2007 economic census (compiled every five years) indicates that there were more than 20 million paid employees at firms nationwide with fewer than 20 employees. See Table 2b “Employment Size of Employer and Nonemployer Firms, 2007.”5 In other
4 This report may be found at the CARA website: http://cara.georgetown.edu/CARAServices/requestedchurchstats.html (last visited September 25, 2012). 5 This United States Census Bureau document may be found at: http://www.census.gov/econ/smallbus.html (last visited on September 25, 2012).
11

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words, there are tens of millions of U.S. employees who are specifically exempted from this federal mandate, not even counting the 190 million plan participants subject to the “grandfather” exemption.
These exemptions defeat the Government’s claim that the federal mandate must be imposed on all other businesses, including Plaintiffs. In O Centro, the Court examined whether the United States violated RFRA by applying the federal Controlled Substances Act to a religious sect that used a plant that contains a hallucinogen in its communion as a sacramental tea. O Centro, 546 U.S. at 423. The compelling interest that the United States Government put forward was “the uniform application of the Controlled Substances Act, such that no exception to the ban on use of the hallucinogen can be made to accommodate the sect’s sincere religious practice.” Id. (emphasis in original). The Court rejected this argument, concluding that the Act itself contemplated exceptions, since the Attorney General was authorized to grant “waiv[ers]” where consistent with the public health and safety. Id. at 432.
The same reasoning applies here. The number of employees affected by exempting Plaintiffs and other similarly-situated businesses would be small in comparison to the exemptions already provided to employers with fewer than 50 employees. The claim that there can be no exceptions to this rule – even where it burdens the free exercise of religion – rings hollow. This is particularly true if this Court limited its examination to merely these Plaintiffs, as the Supreme Court in O Centro indicated should be done.
12

2:12-cv-12061-RHC-MJH Doc # 35 Filed 09/28/12 Pg 17 of 22 Pg ID 493
Equally important, there are other less restrictive means that the United States Government could have chosen. As Plaintiffs noted on page 18 of their opening brief, the United States itself could provide access to these contraceptive and other services. The district court in Newland delineated this same point about the various ways in which the Government could directly provide this benefit: “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.” Newland, 2012 WL 3069154, *7.
The United States argues that such an approach would “impose considerable new costs and other burdens” on the government and therefore was “impractical.” (United States, Opposition to Motion, pp. 32-33.) But the district court in Newland rejected this same argument for reasons that are equally applicable here:
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. Newland, 2012 WL 3069154, *8. At a bare minimum, any “impracticality” of such a government program is outweighed heavily by the violation of Plaintiffs’ religious liberty.
13

2:12-cv-12061-RHC-MJH Doc # 35 Filed 09/28/12 Pg 18 of 22 Pg ID 494
C. RFRA applies to businesses that operate according to religious principles even if they are not operated by a religious organization.
Given RFRA’s plain application to the HHS Mandate and the United States’ inability to satisfy RFRA’s stringent test, the United States is left to argue that RFRA protects only religious organizations, not secular, for-profit corporations. (United States, Motion in Opposition, p. 18.) This is a significant claim, one the law does not support.
There is no dispute that First Amendment protection for speech and association applies equally to religious and secular organizations. This point was confirmed recently by the Supreme Court’s decision in Citizens United v. Federal Election Commission, 558 U.S. 310; 130 S. Ct. 876, 900 (2010) (“The Court has thus rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not ‘natural persons.’”). Indeed, the analysis on which the Supreme Court based its decision in Citizens United excludes the Government’s claim that secular business fall outside the purview of the First Amendment’s religious protections:
Freedom of speech and the other freedoms encompassed by the First Amendment always have been viewed as fundamental components of the liberty safeguarded by the Due Process Clause, and the Court has not identified a separate source for the right when it has been asserted by corporations. First National Bank of Boston v. Bellotti, 435 U.S. 765, 780 (1978) (citations omitted; emphasis added).
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2:12-cv-12061-RHC-MJH Doc # 35 Filed 09/28/12 Pg 19 of 22 Pg ID 495
Consistent with Belloti, if a corporation is protected as a person under the First Amendment, it follows that a corporation would be a “person” under 42 U.S.C. § 2000bb-1 of RFRA. See 42 U.S.C. § 2000bb(a) (stating that RFRA secures the federal test for protections for the First Amendment before the Smith decision). But see Holy Land Foundation for Relief and Development v. Ashcroft, 333 F.3d 156, 167 (D.C. Cir. 2003) (reserving the question but casting doubt on whether a non-profit corporation was a “person” within meaning of RFRA). And on this point, the First Amendment does not distinguish between its protection of the free exercise of religion and its protection of free speech between organizations and individuals or between religious corporations and secular ones.
The one case on which the United States relies does not support its contention. It cites Hosanna-Tabor for the point that the First Amendment provides “special solicitude” for religious organizations. Hosanna-Tabor Evangelical Lutheran Church v. Equal Employment Opportunity Commission, 132 S.Ct. 694, 706 (2012). But the corollary to this point is not that non-religious organizations are excluded from the purview of the First Amendment, but rather that such organizations are covered by it, only they are not given the same level of protection, i.e., they are not accorded this “special” solicitude.
And this conclusion that secular businesses, particularly a family-owned one, would have its right to religious liberty protected under RFRA and the First Amendment comports with common sense. On a basic level, a corporation is a group formed to achieve a particular mission and is comprised of natural persons.
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2:12-cv-12061-RHC-MJH Doc # 35 Filed 09/28/12 Pg 20 of 22 Pg ID 496
As demonstrated by Legatus and the Weingartz Supply Company, these associations may establish religious principles on which to operate their business even if their mission is secular in nature. The example here are businesses rooted in Catholic principles, but the same points would equally apply for a secular organization that adhered to specific doctrines of Judaism, Islam, or a different Christian church. It is easy to envision a family-owned business that would not wish to endorse non-Kosher foods, collect interest on debt, or sell pornography.6
This misguided effort to circumscribe religious liberty to only religious organizations is similar to confining religious practice to worship, as if religious principles should not animate a corporation – or a person – in public and commercial life. It is akin to the error that suggests that only priests or ministers should express religious views. But this is a misunderstanding of religion and religious freedom. It is the right of the ordinary person.
Because Legatus and Weingartz Supply Company have demonstrated such a burden on their religious exercise, this Court should grant their preliminary injunction.
6 The position of the United States appears motivated by the fear that a rule that allows a non-religious will subject a “host of laws and regulations” to attack. (United States, Motion in Opposition, p. 19.) But while the ability of a secular organization to demonstrate a substantial burden may prove to be more difficult, it is not categorically excluded. As in Lee, in contrast to here, where there is a compelling justification for uniform application and no other means to achieve the end, the government’s position will prevail.
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CONCLUSION AND RELIEF SOUGHT The Attorney General asks that this Court grant Plaintiffs’ request for a preliminary injunction.

Dated: September 28, 2012

Respectfully submitted,
Bill Schuette Attorney General
John J. Bursch Solicitor General
s/ B. Eric Restuccia
B. Eric Restuccia Deputy Solicitor General Department of Attorney General P.O. Box 30212 Lansing, MI 48909 restucciae@michigan.gov (P49550)

17

2:12-cv-12061-RHC-MJH Doc # 35 Filed 09/28/12 Pg 22 of 22 Pg ID 498
CERTIFICATE OF SERVICE I hereby certify that on September 28, 2012, I electronically filed the foregoing papers with the Clerk of the Court using ECF system which will send notification of such filing to the following: HONORABLE ROBERT CLELAND MAGISTRATE JUDGE MICHAEL HLUCHANIUK ERIN MANCUSO, ATTORNEY FOR PLAINTIFFS ETHAN DAVIS, ATTORNEY FOR DEFENDANT
Bill Schuette Attorney General s/ B. Eric Restuccia B. Eric Restuccia Deputy Solicitor General Department of Attorney General P.O. Box 30212 Lansing, MI 48909 restucciae@michigan.gov (P49550)
18

 
 Case: 13-1092 Document: 006111785415 Filed: 08/14/2013 Page: 1

Case No. 13-1092/13-1093 UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT ORDER
LEGATUS; DANIEL WEINGARTZ; WEINGARTZ SUPPLY COMPANY Plaintiffs - Appellees Cross-Appellants
v. KATHLEEN SEBELIUS, in her official capacity as Secretary of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; SETH D. HARRIS, in his official capacity as Acting Secretary of Labor, UNITED STATES DEPARTMENT OF LABOR; JACOB J. LEW, in his official capacity as Secretary of the Treasury; UNITED STATES DEPARTMENT OF THE TREASURY
Defendants - Appellants Cross-Appellees
Upon consideration of the Appellees Cross-Appellants’ motion to voluntarily dismiss appeal number 13-1093 herein pursuant to Rule 42(b), Federal Rules of Appellate Procedure,
It is ORDERED that the motion is GRANTED and the appeal is dismissed.

Issued: August 14, 2013

ENTERED BY ORDER OF THE COURT Deborah S. Hunt, Clerk
___________________________________

Case: 13-1092 Document: 006111785416 Filed: 08/14/2013 Page: 1

Deborah S. Hunt Clerk

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

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

Filed: August 14, 2013

Ms. Brigitte Amiri ACLU 125 Broad Street 18th Floor New York, NY 10004
Mr. John J. Bursch Office of the Michigan Attorney General P.O. 30217 Lansing, MI 48909
Ms. Kimberlee Wood Colby Center for Law & Religious Freedom 8001 Braddock Road Suite 302 Springfield, VA 22151
Mr. Michael Anthony Cox Law Office 17430 Laurel Park Drive, N. Livonia, MI 48152
Mr. Charles E. Davidow Paul, Weiss, Rifkind, Wharton & Garrison 2001 K Street, N.W. Washington, DC 20006
Mr. Ethan P. Davis U.S. Department of Justice Civil Division 20 Massachusetts Avenue, N.W.

Case: 13-1092 Document: 006111785416 Filed: 08/14/2013 Page: 2
Washington, DC 20530
Mr. Robert Charles Davis Davis Listman Brennan 10 S. Main Street Suite 401 Towne Square Building Mount Clemens, MI 48043
Mr. Robert Anthony Destro Law Office 2312 N Powhatan Street 22205 Arlington, VA 22205
Ms. Deborah Jane Dewart Law Office 620 E. Sabiston Drive Swansboro, NC 28539
Mr. Noel J. Francisco Jones Day 51 Louisiana Avenue, N.W. Washington, DC 20001
Mr. Lawrence J. Joseph Law Office 1250 Connecticut Avenue Suite 200 Washington, DC 20036
Ms. Ayesha N. Khan Americans United for Separation of Church and State 1301 K Street, NW Suite 850 Washington, DC 20005
Mr. Joel J. Kirkpatrick Law Offices 843 Penniman Avenue Suite 201 Plymouth, MI 48170
Ms. Alisa B. Klein U.S. Department of Justice Civil Division, Appellate Section 950 Pennsylvania Avenue, N.W.

Case: 13-1092 Document: 006111785416 Filed: 08/14/2013 Page: 3
Washington, DC 20530
Mr. Gregory M. Lipper Americans United for the Separation of Church and State 518 C Street, N.E. Washington, DC 20002-0000
Ms. Erin Elizabeth Mersino Thomas More Law Center P.O. Box 393 Ann Arbor, MI 48106
Mr. Frederick Dickson Nelson Office of the Ohio Attorney General 30 E. Broad Street 17th Floor Columbus, OH 43215
Caitlin E. O'Connell Americans United for Separation of Church and State 1301 K Street, NW Suite 850 Washington, DC 20005
Mr. Bernard Eric Restuccia Office of the Michigan Attorney General P.O. 30217 Lansing, MI 48909
Mr. D. John Sauer Clark & Sauer 7733 Forsyth Boulevard Suite 625 St. Louis, MO 63105
Mr. Bruce Harvey Schneider Stroock, Stroock & Lavan 180 Maiden Lane New York, NY 10038
Ms. Mailee Rebecca Smith Americans United for Life 655 Fifteenth Street, N.W. Suite 410 Washington, DC 20005

Case: 13-1092 Document: 006111785416 Filed: 08/14/2013 Page: 4
Mr. Mark B. Stern U.S. Department of Justice Civil Division, Appellate Staff 950 Pennsylvania Avenue, N.W. Washington, DC 20530
Re: Case No. 13-1092/13-1093, Legatus, et al v. Kathleen Sebelius, et al Originating Case No. : 2:12-cv-12061
Dear Sir or Madam, The Court issued the enclosed (Order/Opinion) today in this case.
Sincerely yours,
s/Jill Colyer Case Manager Direct Dial No. 513-564-7024
Enclosure No mandate to issue

 
 2:12-cv-12061-RHC-MJH Doc # 64 Filed 08/30/13 Pg 1 of 70 Pg ID 735

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

LEGATUS; WEINGARTZ SUPPLY COMPANY; and DANIEL WEINGARTZ, President of Weingartz Supply Company,
Plaintiffs,
v.

Case No. 2:12-cv-12061
FIRST AMENDED COMPLAINT
Judge Robert H. Cleland

KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; THOMAS PEREZ, Secretary of the United States Department of Labor; UNITED STATES DEPARTMENT OF LABOR; JACK LEW, Secretary of the United States Department of the Treasury; and UNITED STATESDEPARTMENT OF THE TREASURY,

Defendants. __________________________________________/

FIRST AMENDED COMPLAINT

Comes now Plaintiffs Legatus, Weingartz Supply Company, and Daniel

Weingartz (collectively “Plaintiffs”), by and through undersigned counsel, bring

this Complaint against the above-named Defendants, their employees, agents, and

successors in office, and in support thereof state the following upon information

and belief:

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NATURE OF THE ACTION 1. This is a case about religious freedom. Thomas Jefferson, a Founding Father of our country, principal author of the Declaration of Independence, and our third president, when describing the construct of our Constitution proclaimed, “No provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority.” Letter from Thomas Jefferson, United States Office of the President, to the Soc’y of the Methodist Episcopal Church at New London, Conn. (Feb. 4, 1809) cited in People v. Dejonge, 442 Mich. 266, 278 (1993) (emphasis added). 2. This is a challenge to regulations ostensibly issued under the “Patient Protection and Affordable Care Act” (Pub. L. 111-148, March 23, 2010, 124 Stat. 119) and the “Health Care and Education Reconciliation Act” (Pub. L. 111-152, March 30, 2010, 124 Stat. 1029) (collectively known and hereinafter referred to as the “Affordable Care Act”) that force individuals to violate their deepest held religious beliefs. 3. The Affordable Care Act, through a Mandate from the United States Department of Health and Human Services, attacks and desecrates a foremost tenet of the Catholic Church, as stated by Pope Paul VI in His 1968 encyclical Humanae Vitae, that “any action which either before, at the moment of, or after sexual
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intercourse, is specifically intended to prevent procreation, whether as an end or as a means”—including contraception, abortion, and abortifacients—is a grave sin.
4. One of the provisions of the Affordable Care Act to mandates that health plans “provide coverage for and shall not impose any cost sharing requirements for . . . with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration” and directs the Secretary of the United States Department of Health and Human Services to determine what would constitute “preventive care” under the mandate. 42 U.S.C § 300gg–13(a)(4).
5. Without notice of rulemaking or opportunity for public comment, the United States Department of Health and Human Services, the Secretary of Health and Human Services, the United States Department of Labor, the Secretary of Labor, the United States Department of Treasury, and the Secretary of the Treasury (collectively “Defendants”) adopted and promulgated an interim final rule (“the Mandate”), which requires that all “group health plan[s] and . . . health insurance issuer[s] offering group or individual health insurance coverage” provide all FDAapproved contraceptive methods and procedures. 76 Fed. Reg. 46621 (published Aug. 3, 2011); 45 C.F.R. § 147.130.
6. The Mandate requires all group health plans (i.e. employee health insurance plans) and insurance issuers (e.g. Blue Cross/Blue Shield of Michigan)
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to provide contraception, abortion, and abortifacients in all of its insurance plans, group and individual.
7. Health Resources and Services Administration also issued guidelines adopting the Institute of Medicine (“IOM”), a private entity hired by Defendants, recommendations. (http://www.hrsa.gov/womensguidelines).
8. Under the IOM guidelines, the Mandate requires all group health plans and insurance insurers to provide not only contraception, but also abortion, because certain drugs and devices such as the “morning-after pill,” “Plan B,” and “ella” come within the Mandate’s and Health Resources and Services Administration’s definition of “Food and Drug Administration-approved contraceptive methods” despite their known abortifacient mechanisms of action.
9. The Mandate forces employers and individuals to violate their religious beliefs because it requires employers and individuals to pay for insurance from insurance issuers which facilitate, fund and directly provide for drugs, devices, and services which violate their deeply held religious beliefs.
10. Since under the Mandate all employer group plans and insurance issuers must provide what the United States Department of Health and Human Services has deemed “preventive care,” employers and individuals are stripped of any choice between insurance issuers or insurance plans to avoid violating their religious beliefs.
4

2:12-cv-12061-RHC-MJH Doc # 64 Filed 08/30/13 Pg 5 of 70 Pg ID 739
11. Defendants, in an unprecedented despoiling of religious rights, forces religious employers and individuals, who believe that funding and providing for contraception, abortion, and abortifacients is wrong, to facilitate and participate in acts that violate their beliefs and their conscience—and are forced out of the health insurance market in its entirety in order to comply with their religious beliefs.
12. Plaintiffs seek a Preliminary Injunction, Permanent Injunction, and Declaratory Judgment against Defendants’ implementation and enforcement of provisions of the regulations promulgated under the Affordable Care Act, specifically the Mandate. The Mandate violates Plaintiffs’ rights to the free exercise of religion, freedom under the Establishment Clause, and freedom of speech under the First Amendment to the United States Constitution, the Religious Freedom Restoration Act, and the Administrative Procedure Act.
13. The Affordable Care Act’s contraception, abortion, and abortifacient mandate violates the rights of Plaintiff Legatus as a non-profit, Catholic organization, and the individuals that comprise Legatus, such as its employees and its over 4,000 members comprised of devoutly Catholic business persons and their spouses from over 2,100 Catholic-run companies in the United States.
14. Plaintiff Daniel Weingartz is an active member of Legatus and is the President of Plaintiff Weingartz Supply Company, a for-profit, company with over 50 full-time employees required to provide health insurance under the Affordable
5

2:12-cv-12061-RHC-MJH Doc # 64 Filed 08/30/13 Pg 6 of 70 Pg ID 740
Care Act under penalty of heavy fines and therefore forced under the Mandate to provide and fund contraceptives, abortion, and abortifacients, which violates his deeply held religious beliefs.
15. Defendants refused to exempt religious, non-profit organizations, such as Plaintiff Legatus. Instead, Defendants have created an inadequate “accommodation” for religious, non-profit organization which still requires that such organizations facilitate coverage for contraceptives, abortion, and abortifacients contrary to their sincerely held religious beliefs.
16. Defendants have created no exemption or accommodation for forprofit companies or their owners, and have chosen to force for-profit companies or their owners into violating their religious beliefs.
17. Plaintiffs bring this action to vindicate not only their own rights, but also to protect the rights of all Americans who care about our Constitutional guarantees of free exercise of religion and their freedom of speech, as well as the protection of innocent human life.
JURISDICTION AND VENUE 18. This action in which the United States is a defendant arises under the Constitution and laws of the United States. Jurisdiction is conferred on this Court pursuant to 28 U.S.C. §§ 1331 and 1346.
6

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19. Plaintiffs’ claims for declaratory and preliminary and permanent injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202, by Rules 57 and 65 of the Federal Rules of Civil Procedure, by 28 U.S.C. § 2000bb-1, and by the general legal and equitable powers of this Court.
20. Venue is proper under 28 U.S.C. § 1391(e) because this is the judicial district in which Plaintiffs are located.
PLAINTIFFS 21. Plaintiff Legatus is an organization incorporated under the laws of the State of Michigan. 22. Plaintiff Legatus is registered at One Ave Maria Drive, Ann Arbor, MI 48106. 23. Plaintiff Legatus is recognized by the Internal Revenue Service as a 501(c)(3), non-profit organization. 24. “Legatus” is the Latin word for ambassador, and Plaintiff Legatus is a Catholic organization which provides “for its members to become ambassadors for the Catholic Faith they share in common.” (http://www.legatus.org/). 25. The mission of Legatus is “[t]o study, live and spread the Catholic faith in our business, professional and personal lives.” (http://www.legatus.org/). 26. Plaintiff Legatus “is an international organization of practicing Catholic laymen and laywomen, comprised of Chief Executive Officers,
7

2:12-cv-12061-RHC-MJH Doc # 64 Filed 08/30/13 Pg 8 of 70 Pg ID 742
Presidents, Managing Partners and Business Owners, with their spouses, from the business community and professional enterprises.” Legatus Amended and Restated International Bylaws § 2.1.
27. Plaintiff Legatus is comprised of over 4,000 members, including 2,124 dues paying members and their member spouses.
28. Plaintiff Legatus has a total of 73 chapters in the United States located in 31 states with 3 international chapters.
29. Plaintiff Legatus has three chapters located in Southeastern Michigan, including chapters located in the cities of Detroit and Ann Arbor.
30. The members of Legatus join the organization with purpose of deepening and strengthening their Catholic faith. Legatus nurtures spiritual growth in its members’ Catholic beliefs by fostering a stronger relationship with Jesus Christ and by educating its members in the teachings of the Catholic Church.
31. Plaintiff Legatus, its employees, and its members follow the teachings of the Catholic faith as defined by the Magisterium (teaching authority) of the Catholic Church. Plaintiffs carry and live out their religious beliefs daily by helping and assisting their members follow the teachings of the Catholic Church and strengthen their faith.
8

2:12-cv-12061-RHC-MJH Doc # 64 Filed 08/30/13 Pg 9 of 70 Pg ID 743
32. The members of Legatus share religious beliefs that forbid them from facilitating, providing, participating in, paying for, training others to engage in, or otherwise supporting contraception, abortion, and abortifacients.
33. Plaintiff Legatus and its members follow with devotion the teachings and the tenets of the Catholic Church.
34. Furthermore, Plaintiff Legatus provides education to its members pertaining to the teachings and tenets of the Catholic Faith.
35. Prior to the issuance of the Mandate, Plaintiff Legatus engineered an insurance policy with Blue Cross/Blue Shield of Michigan and through the Ave Maria Foundation located in Ann Arbor, Michigan which specifically excluded contraception, abortion, and abortifacients, and exempts Plaintiff from facilitating, providing, paying, contributing, or supporting contraception and contraception, abortion, and abortifacients for others.
36. Plaintiff Legatus obtained these exclusions due to the deeply held religious beliefs of its members and to comply with the organization’s mission and purpose.
37. Plaintiff Legatus’ employees receive insurance under this engineered insurance policy with Blue Cross/Blue Shield of Michigan which specifically excluded contraception, abortion, and abortifacients, and exempts Plaintiff from
9

2:12-cv-12061-RHC-MJH Doc # 64 Filed 08/30/13 Pg 10 of 70 Pg ID 744
facilitating, providing, paying, contributing, or supporting contraception and contraception, abortion, and abortifacients for others.
38. Plaintiff Weingartz Supply Company is incorporated in the State of Michigan and under the laws of the State of Michigan.
39. Plaintiff Weingartz Supply Company is located at 46061 Van Dyke, Utica, Michigan, 48371, with five locations in the Metro Detroit area including Ann Arbor, Michigan.
40. Plaintiff Daniel Weingartz is an individual and a citizen of the State of Michigan and the United States.
41. Plaintiff Daniel Weingartz is the President of Weingartz Supply Company. He is responsible for setting all policies governing the conduct of all phases of business of Weingartz Supply Company, its subsidiaries, and the Weingartz family companies.
42. Plaintiff Daniel Weingartz is an active member of Legatus. 43. Plaintiff Daniel Weingartz holds religious beliefs which forbid him from facilitating, providing, participating in, paying for, training others to engage in, or otherwise supporting contraception, abortifacients, and abortion. 44. Plaintiff Weingartz Supply Company, its subsidiaries, and the Weingartz family companies are secular companies led by Plaintiff Daniel Weingartz, who is a devout Catholic.
10

2:12-cv-12061-RHC-MJH Doc # 64 Filed 08/30/13 Pg 11 of 70 Pg ID 745
45. Plaintiff Daniel Weingartz through his company Plaintiff Weingartz Supply Company engineered a self- insured group policy with third party administrator Blue Cross/Blue Shield of Michigan which specifically excluded contraception, and abortion and exempts Plaintiff from facilitating, providing, paying, contributing, or supporting contraception, or abortion for others.
46. Plaintiff Daniel Weingartz and his company Plaintiff Weingartz Supply Company ensured that their insurance policy contained these exclusions to reflect their deeply held religious beliefs.
47. Based on the teachings of the Catholic Church, and their deeply held religious beliefs, Plaintiffs do not believe that contraception, or abortion are properly understood to constitute medicine, health care, or a means of providing for the well being of persons. Indeed, Plaintiffs believe these procedures involve gravely immoral practices, specifically the intentional destruction of innocent human life.
DEFENDANTS 48. Defendants are appointed officials of the United States government and United States governmental agencies responsible for issuing the Mandate. 49. Defendant Kathleen Sebelius is the Secretary of the United States Department of Health and Human Services (“HHS”). In this capacity, she has
11

2:12-cv-12061-RHC-MJH Doc # 64 Filed 08/30/13 Pg 12 of 70 Pg ID 746
responsibility for the operation and management of HHS. Defendant Sebelius is sued in her official capacity only.
50. Defendant HHS is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the regulation which is the subject of this lawsuit.
51. Defendant Thomas Perez is the Secretary of the United States Department of Labor. In this capacity, he holds responsibility for the operation and management of the United States Department of Labor. Defendant Perez is sued in his official capacity only.
52. Defendant United States Department of Labor is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the regulation which is the subject of this lawsuit.
53. Defendant Jack Lew is the Secretary of the United States Department of the Treasury. In this capacity, he holds responsibility for the operation and management of the United States Department of Treasury. Defendant Lew is sued in his official capacity only.
54. Defendant United States Department of Treasury is an executive agency of the United States government and is responsible for the promulgation,
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administration, and enforcement of the regulation which is the subject of this lawsuit.
FACTUAL ALLEGATIONS Plaintiffs’ Religious Beliefs
55. Plaintiffs hold and actively profess religious beliefs in accordance with the traditional Christian teachings on the sanctity of life. Plaintiffs believe that each human being bears the image and likeness of God, and therefore that all human life is sacred and precious, from the moment of conception. Plaintiffs therefore believe that abortion ends a human life and is a grave sin. Therefore, Plaintiffs sincerely believe that facilitating access to or providing contraception, abortion inducing drugs (abortifacients), or abortion through their employee group insurance plan is a grave sin.
56. Plaintiffs’ religious beliefs also include traditional Christian teaching on the nature and purpose of human sexuality. In particular, Plaintiffs believe, in accordance with Pope Paul VI’s 1968 encyclical Humanae Vitae, that human sexuality has two primary purposes: to “most closely unit[e] husband and wife” and “for the generation of new lives.” Accordingly, Plaintiffs believe and actively profess, with the Catholic Church, that “[t]o use this divine gift destroying, even if only partially, its meaning and its purpose is to contradict the nature both of man and of woman and of their most intimate relationship, and therefore it is to
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contradict also the plan of God and His Will.” Therefore, Plaintiffs believe and teach that “any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation, whether as an end or as a means”—including contraception—is a grave sin.
57. Furthermore, Plaintiffs subscribe to authoritative Catholic teaching about the proper nature and aims of health care and medical treatment. For instance, Plaintiffs believe, in accordance with Pope John Paul II’s 1995 encyclical Evangelium Vitae, that “‘[c]ausing death’ can never be considered a form of medical treatment,” but rather “runs completely counter to the health-care profession, which is meant to be an impassioned and unflinching affirmation of life.”
58. Plaintiffs hold a sincere religious objection to facilitating access to contraception, abortifacients, or abortion. This objection includes all drugs, devices, and services that constitute contraception, abortifacients, or abortion, including “emergency contraceptives” Plan B and ella.
59. Because of Plaintiffs’ religious convictions concerning the sanctity of life, Plaintiffs cannot participate in any scheme to facilitate or provide access to contraceptive or abortifacient drugs, services or devices.
60. Recently, leaders within the Catholic Church have publicly spoken out about how the Mandate is a direct violation of Catholic Faith.
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61. Cardinal Timothy Dolan, Archbishop of New York and President of the United States Conference of Catholic Bishops wrote, “Since January 20 [2012], when the final, restrictive HHS Rule was first announced, we have become certain of two things: religious freedom is under attack, and we will not cease our struggle to protect it. We recall the words of our Holy Father Benedict XVI to our brother bishops on their recent ad limina visit: ‘Of particular concern are certain attempts being made to limit that most cherished of American freedoms, the freedom of religion.’ We have made it clear in no uncertain terms to the government that we are not at peace with its invasive attempt to curtail the religious freedom we cherish as Catholics and Americans.” (http://www.usccb.org, last visited Aug. 29, 2013).
62. Archbishop Charles J. Chaput, the Archbishop of Philadelphia, has expressed that the Affordable Care Act and the Mandate seek “to coerce Catholic employers, private and corporate, to violate their religious convictions . . . [t]he HHS mandate, including its latest variant, is belligerent, unnecessary, and deeply offensive to the content of Catholic belief . . . The HHS mandate needs to be rescinded. In reality, no similarly aggressive attack on religious freedom in our country has occurred in recent memory . . . [t]he HHS mandate is bad law; and not merely bad, but dangerous and insulting. It needs to be withdrawn—now.”
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(http://the-american-catholic.com/2012/02/14/archbishop-chaput-hhs-mandatedangerous-and-insulting/, last visited Aug. 29, 2013).
63. Leaders in the Catholic Church have also stated that the “accommodation” made for non-profit religious organizations, such as Plaintiff Legatus, is a failed accommodation as it does alleviate the direct violation of the Catholic Faith imposed by Mandate.
64. Cardinal Timothy Dolan has stated in critique of the so-called accommodation, “there is only one policy, and it is the one sponsored by the Catholic employer. The objectionable items will still be paid by virtue of the fact that an employee belongs to the Catholic employer’s plan.” (http://www.usccb.org/news/2013/13-137.cfm, last visited Aug. 29, 2013); see also (http://www.usccb.org/issues-and-action/religious-liberty/conscienceprotection/upload/Feb2013-_Version_Mandate_Factsheet.pdf, last visited Aug. 29, 2013).
65. Plaintiffs’’ insurance plans do not cover contraception, abortifacients, or medical abortions. Plaintiff Legatus
66. Plaintiff Legatus, a Catholic organization which adheres to the teachings of the Catholic Church, has 17 full-time employees and 52 part-time employees.
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67. Plaintiff Legatus is a non-profit organization. 68. Plaintiff Legatus is composed of over 4,000 members and Catholic business persons and their spouses who represent over 2,100 companies, many companies being comprised of 50 or more full-time employees. 69. Plaintiff Legatus purchases group insurance through insurance issuer Blue Cross/Blue Shield of Michigan and provides this insurance to its full-time employees. 70. Plaintiff Legatus has striven over the years to provide its employees with employee health coverage superior to coverage generally available in the Michigan market in order to be a competitive employer. 71. Plaintiff Legatus specifically designed a health insurance plan with Blue Cross/Blue Shield of Michigan to exclude contraception, abortion, and abortifacients in line with the religious beliefs of the members of Legatus and in line with the mission of Legatus, a Catholic organization. 72. Moreover, as part of its religious commitment to the authoritative teachings of the Catholic Church, Plaintiff Legatus educates its members about the teachings of the Catholic Church and steadfastly avoids practices that subvert the teaching of the Catholic Church such as providing or funding drugs, devices, services or procedures inconsistent with its faith.
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73. Plaintiff Legatus has taken great pains through the years to ensure that its employees’ insurance plans do not cover contraception or abortion.
74. Plaintiff Legatus cannot facilitate, provide, fund, or participate in health care insurance which covers artificial contraception, abortion, or abortifacients, or related education and counseling, without violating its deeply held religious beliefs.
75. Plaintiff Legatus cannot provide information or guidance to its employees or its members regarding artificial contraception, abortion, abortifacients or related education and counseling, without violating their deeply held religious beliefs.
76. Plaintiff Legatus exists through its members, such as Plaintiff Daniel Weingartz, who seek advice regarding business practices in compliance with their religious views. Pursuant to Plaintiff Legatus’ mission, Plaintiff Legatus will continue to adhere to, disseminate, and report reliable Catholic teachings on morality and practices in its business dealings and in its advice to employees and members, as its Mission Statement has declared since its inception. Plaintiffs Weingartz Supply Company and Daniel Weingartz, President of Weingartz Supply Company
77. Plaintiff Daniel Weingartz, the President of Plaintiff Weingartz Supply Company, is an active member of Plaintiff Legatus.
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78. As a member of Legatus, Plaintiff Daniel Weingartz is an ambassador of the Catholic Faith and follows the teachings of the Catholic Church.
79. Plaintiff Weingartz Supply Company, along with W & P Management LLC and its subsidiaries employ a total of 170 employees including 60 part-time employees.
80. Plaintiff Weingartz Supply Company and its subsidiary companies are family owned and operated and have been for the last 65 years.
81. Plaintiff Weingartz Supply Company and its subsidiaries are forprofit, secular companies.
82. Plaintiff Daniel Weingartz and Plaintiff Weingartz Supply Company and its subsidiaries share a common mission of conducting their business operations with integrity.
83. Plaintiff Daniel Weingartz and Plaintiff Weingartz Supply Company adhere to fair, ethical, and honest business practices with both its employees and its valued customers.
84. Plaintiff Daniel Weingartz and Plaintiff Weingartz Supply Company follow the teachings, mission, and values of the Catholic faith.
85. Plaintiff Daniel Weingartz and Plaintiff Weingartz Supply Company have a self-insured group plan for its employees through its subsidiary W & P Management, LLC through insurance agent Brown & Brown Detroit and third
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party administrator Blue Cross/Blue Shield of Michigan, and currently provide this insurance to its full-time employees.
86. Plaintiff Daniel Weingartz and Plaintiff Weingartz Supply Company have striven over the years to provide its employees with employee health coverage superior to coverage generally available in the Michigan market in order to be a competitive employer.
87. Plaintiff Daniel Weingartz and Plaintiff Weingartz Supply Company specifically designed their self-insured group health insurance plan to exclude contraception, abortion, and abortifacients in line with the religious beliefs of Plaintiff Daniel Weingartz, the Weingartz family, the mission of the Catholic Church, and Legatus, a Catholic organization to which Plaintiff Daniel Weingartz belongs.
88. As part of their religious commitment to the authoritative teachings of the Catholic Church, Plaintiff Daniel Weingartz and Plaintiff Weingartz Supply Company steadfastly avoid practices that subvert the teaching of the Catholic Church such as facilitating access to, providing, or funding drugs, devices, services or procedures inconsistent with their faith.
89. Plaintiff Daniel Weingartz and Plaintiff Weingartz Supply Company have taken great pains through the years to ensure that its employees’ insurance plans do not cover contraception, abortion, or abortifacients.
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90. Plaintiff Daniel Weingartz and Plaintiff Weingartz Supply Company cannot facilitate access to, provide, fund, or participate in health care insurance which covers artificial contraception, abortion, or abortifacients, or related education and counseling, without violating their deeply held religious beliefs.
91. Plaintiff Daniel Weingartz and Plaintiff Weingartz Supply Company cannot provide information or guidance to its employees regarding artificial contraception, abortion, abortifacients or related education and counseling, without violating their deeply held religious beliefs.
92. With full knowledge of these aforementioned beliefs, Defendants issued the Mandate that runs roughshod over Plaintiffs’ religious beliefs, and the beliefs of millions of other Americans.
93. The Mandate not only forces Plaintiffs to facilitate access to contraception, abortion, and related education and counseling as health care, but also subverts the expression of Plaintiffs’ religious beliefs, and the beliefs of millions of other Americans, by forcing Plaintiffs to fund, promote, and assist others to acquire services which Plaintiffs believe involve gravely immoral practices, including the destruction of innocent human life.
94. The Mandate unconstitutionally coerces Plaintiffs to violate their deeply-held religious beliefs under threat of directly violating their consciences, in addition to any imposed fines and penalties. The Mandate also forces Plaintiffs to
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fund government-dictated speech that is directly at odds with their own speech and religious beliefs. Having to pay a fine to the taxing authorities or being entirely forced out of the insurance market in order to ensure the privilege of practicing one’s religion or controlling one’s own speech substantially burdens Plaintiffs’ religious liberty and freedom of speech under the First Amendment.
95. The Mandate strips the Plaintiffs of any choice to select an insurance plan that does not lead to access to contraception, abortion, and abortifacients, as the Mandate requires that all group insurance plans and insurance issuers provide this coverage or at minimum facilitate access to this coverage.
96. Plaintiffs’ plans are not “grandfathered” and will be subject to the provisions of the Mandate. Plaintiffs’ health care plans are not a grandfathered plan under the Affordable Care Act for multiple reasons, including, but not limited to, the following: (1) the health care plans do not include the required “disclosure of grandfather status” statement; (2) Plaintiffs do not take the position that its health care plans are grandfathered plans and thus do not maintain the records necessary to verify, explain, or clarify their status as grandfathered plans; and (3) the health care plans have an increase in a percentage cost-sharing requirement measured from March 23, 2010. See 42 U.S.C. § 18011(a) (2); 26 C.F.R. § 54.9815-1251T; 29 C.F.R. § 2590.715-1251; 45 C.F.R. §147.140. Plaintiffs have never been informed or received notice that their plans were grandfathered.
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97. Due to the Mandate, Plaintiff Legatus will no longer be allowed to exclude contraception, abortion, and abortifacients from their insurance plans— and will be forced to facilitate access to and provide for these services which violate its religious beliefs.
98. Due to the Mandate, Plaintiff Daniel Weingartz and Plaintiff Weingartz Supply Company will no longer be allowed to exclude contraception, abortion, and abortifacients from their insurance plans—and will be forced to facilitate access to, provide, and pay for these services which violate their religious beliefs.
99. Plaintiffs wish to conduct their business in a manner that does not violate the principles of their religious faith.
100. Plaintiff Legatus additionally seeks for the members of Legatus to be able to conduct their respective businesses in a manner that does not violate the principles of the religious faith of its over 4,000 members.
101. Complying with the Mandate requires a direct violation of the Plaintiffs’ religious beliefs because it requires Plaintiffs to pay for or assist others in obtaining not only contraception, but also abortion, because certain drugs and devices such as the “morning-after pill,” “Plan B,” and “ella” come within the Mandate’s and Health Resources and Services Administration’s definition of
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“Food and Drug Administration-approved contraceptive methods” despite their known abortifacient mechanisms of action.
102. Defendants’ refusal to accommodate the conscience of the Plaintiffs, and of other Americans who share the Plaintiffs’ religious views, is highly selective. Numerous exemptions exist in the Affordable Care Act which appear arbitrary and were granted to employers who purchase group insurance. This evidences that Defendants do not mandate that all insurance plans need to cover “preventive services” (e.g. the thousands of waivers from the Affordable Care Act issued by Defendants for group insurance based upon the commercial convenience of large corporations, the age of the insurance plan, or the size of the employer). See, e.g., 45 C.F.R. § 147.126(d)(3).
103. Congress and their Congressional staff will likely be waived from compliance with the Affordable Care Act, and therefore the Mandate. 78 Fed. Reg. 48,337 (Aug. 8, 2013).
104. Despite granting waivers upon a seemingly arbitrary basis, no exemption exists for an employer or individual whose religious conscience instructs him that certain mandated services are unethical, immoral, and volatile to one’s religious beliefs. Defendants’ plan fails to give the same level of weight or accommodation to the exercise of one’s fundamental First Amendment freedoms that it assigns to the yearly earnings of a corporation.
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105. The Defendants’ actions violate Plaintiffs’ right to freedom of religion, as secured by the First Amendment to the United States Constitution and civil rights statutes, including the Religious Freedom Restoration Act (RFRA).
106. The Defendants’ actions also violate Plaintiffs’ right to the freedom of speech, as secured by the First Amendment to the United States Constitution.
107. Furthermore, the Mandate is also illegal because it was imposed by Defendants without prior notice or sufficient time for public comment, and otherwise violates the Administrative Procedure Act, 5 U.S.C. § 553.
108. Had Plaintiffs’ religious beliefs or the beliefs of the million other Americans who share Plaintiffs’ religious beliefs been obscure or unknown, the Defendants’ actions might have been an accident. But because the Defendants acted with full knowledge of those beliefs, and because they arbitrarily exempt some plans for a wide range of reasons other than religious conviction, the Mandate can be interpreted as nothing other than a deliberate attack by the Defendants on the Catholic Church, the religious beliefs held by Plaintiffs and the similar religious beliefs held by millions of other Americans. The Defendants have, in sum, intentionally used government power to force individuals to facilitate access to, believe in, support, and endorse the mandated services manifestly contrary to their own religious convictions, and then to act on that coerced belief,
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support, or endorsement. Plaintiffs seek declaratory and injunctive relief to protect against this attack. The Affordable Care Act
109. In March 2010, Congress passed, and President Obama signed into law, the “Patient Protection and Affordable Care Act” (Pub. L. 111-148, March 23, 2010, 124 Stat. 119) and the “Health Care and Education Reconciliation Act” (Pub. L. 111-152, March 30, 2010, 124 Stat. 1029) (referred to in this complaint as the “Affordable Care Act”).
110. The Affordable Care Act regulates the national health insurance market by directly regulating “group health plans” and “health insurance issuers.”
111. The Affordable Care Act does not apply equally to all insurers. 112. The Affordable Care Act does not apply equally to all individuals. 113. Plaintiff Weingartz Supply Company and its subsidiaries constitute a “single employer” for purposes of the Affordable Care Act as defined at 42 U.S.C. § 18024(b)(4)(A). 114. Plaintiff Legatus constitutes a “single employer” for purposes of the Affordable Care Act as defined at 42 U.S.C. § 18024(b)(4)(A). 115. Plaintiffs must provide federal government-approved health insurance under the Affordable Care Act or pay substantial per-employee fines.
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116. The Affordable Care Act applies different fines and penalties to employers with fewer than 50 employees. An employer with fewer than 50 employees may drop insurance all together without incurring a fine. 26 U.S.C. § 4980H(c)(2)(A). However, if an employer with fewer than 50 employees supplies insurance, then it must comport with the Affordable Care Act and the Mandate or be subject to a $100 per day, per employee fine each year. 26 U.S.C. § 4980D(a).
117. Employers with more than 50 employees are subject to two fines for noncompliance with the Affordable Care Act and the Mandate. 26 U.S.C. § 4980H ($2,000 per employee annually); 26 U.S.C. § 4980D(a) ($100 per day, per employee annually).
118. Certain provisions of the Affordable Care Act do not apply equally to members of certain religious groups. See, e.g., 26 U.S.C. § 5000A(d)(2)(a)(i) and (ii) (individual mandate does not apply to members of “recognized religious sect or division” that conscientiously objects to acceptance of public or private insurance funds); 26 U.S.C. § 5000A(d)(2)(B)(ii) (individual mandate does not apply to members of “health care sharing ministry” that meets certain criteria).
119. Plaintiffs do not qualify for an individual exemption under 26 U.S.C. § 5000A(d)(2)(a)(i) and (ii) as Plaintiffs do not object to acceptance of public or private insurance funds in their totality and currently enjoy health insurance benefits that exclude contraceptives, abortion, and abortifacients.
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120. The Affordable Care Act’s preventive care requirements do not apply to employers who provide so-called “grandfathered” health care plans.
121. Employers who follow HHS guidelines may continue to use grandfathered plans indefinitely.
122. Plaintiffs’ current insurance plans do not qualify as “grandfathered” health care plans, and are considered “non-grandfathered.”
123. Furthermore, Plaintiffs do not qualify for the “religious employer” exemption contained in 45 CFR § 147.130 (a)(1)(A) and (B).
124. Plaintiffs are thus subjected to the Mandate now and are confronted with choosing between complying with its requirements in violation of their religious beliefs or violating federal law.
125. Plaintiffs must choose between complying with the requirements of the Affordable Care Act in violation of their religious beliefs or either paying ruinous fines that would have a crippling impact on their ability to survive economically.
126. Plaintiffs are confronted with complying with the requirements of the Affordable Care Act in violation of their religious beliefs or removing themselves from the health insurance market in its entirety—endangering the health and economic stability of their families and forcing Plaintiffs to be non-competitive as employers in a market where other, non-Catholic employers will be able to provide
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insurance to their employees under the Affordable Care Act without violating their religious beliefs.
127. The Affordable Care Act is not generally applicable because it provides for numerous exemptions from its rules.
128. The Affordable Care Act is not neutral because some groups, both secular and religious, enjoy exemptions from the law, while certain religious groups do not. Some groups, both secular and religious, have received waivers from complying with the provisions of the Affordable Care Act, while others— such as the Plaintiffs—have not.
129. The Affordable Care Act creates a system of individualized exemptions.
130. The United States Department of Health and Human Services has the authority under the Affordable Care Act to grant compliance waivers (“HHS waivers”) to employers and other health insurance plan issuers.
131. HHS waivers release employers and other plan issuers from complying with the provisions of the Affordable Care Act.
132. HHS decides whether to grant waivers based on individualized waiver requests from particular employers and other health insurance plan issuers.
133. Upon information and belief, more than a thousand HHS waivers have been granted.
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The “Preventive Care” Mandate 134. A provision of the Affordable Care Act mandates that health plans
“provide coverage for and shall not impose any cost sharing requirements for . . . with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration” and directs the Secretary of United States Department of Health and Human Services to determine what would constitute “preventive care” under the mandate. 42 U.S.C § 300gg–13(a)(4).
135. Defendants promulgated a mandate that group health plans include coverage for all Food and Drug Administration-approved contraceptive methods and procedures, patient education, and counseling for all women with reproductive capacity in plan years beginning on or after August 1, 2012 (hereafter, “the Mandate”). See 45 CFR § 147.130 (a)(1)(iv), as confirmed at 77 Fed. Register 8725 (Feb. 15, 2012), adopting and quoting Health Resources and Services Administration (HRSA) Guidelines, (http://www.hrsa.gov/womensguidelines).
136. The Mandate was enacted pursuant to statutory authority under the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, as amended by the Health Care and Education Act of 2010, Pub. L. No. 111-152 (ACA). 77 Fed. Reg. 31, 8725 (“Affordable Care Act”).
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137. In its ruling, HHS included all FDA-approved contraceptives under the banner of preventive services, including contraception, abortion, and abortifacients such as the “morning-after pill,” “Plan B,” and “ella,” a close cousin of the abortion pill RU-486. (http://www.hrsa.gov/womensguidelines).
138. The Mandate’s reach seeks to control the decisions of employers, individuals and also the decisions of all insurance issuers (i.e. “Blue Cross/Blue Shield of Michigan,” etc.). 42 USC § 300gg-13 (a)(1),(4). (“A group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for evidence-based items or services that have in effect a rating of “A” or “B” in the current recommendations of the United States Preventive Services Task Force; . . . with respect to women, such additional preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.”).
139. Group insurance plans and insurance issuers were mandated to include contraception, abortion, and abortifacients such as the “morning-after pill,” “Plan B,” and “ella” in all of its group and individual plans, not specifically exempted, beginning as of August 1, 2012.
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140. Individuals and employers, regardless of the number of employees they employ, will eventually be forced to select an insurance plan which includes what HHS deemed “preventive care.”
141. All individuals and employers will be stripped of their choice not to pay for the “preventive care,” regardless of whether paying for such “services” violates one’s conscience or deeply held religious beliefs.
142. Health insurance issuers include insurance companies such as Blue Cross/Blue Shield of Michigan, which is the insurance issuer used by Plaintiff Legatus and also third party administrator used by Plaintiffs Weingartz Supply Company and Daniel Weingartz.
143. The Mandate reaches even further than the Affordable Care Act to eliminate all employers and individuals from selecting a health insurance plan in which the insurance issuers do not automatically provide contraception, abortion, and abortifacients.
144. Prior to promulgating the Mandate, Defendants accepted public comments to the 2010 interim final regulations from July 19, 2010 to September 17, 2010. Upon information and belief, a large number of groups filed comments, warning of the potential conscience implications of requiring religious individuals and groups to pay for certain kinds of services, including contraception, abortion, and abortifacients.
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145. On July 19, 2010, Defendants published an interim final rule (the Mandate) under the Affordable Care Act. 75 Fed. Reg. 41726 (2010). The interim final rule required providers of group health insurance to cover preventive care for women as provided in guidelines to be published by the Health Resources and Services Administration at a later date. 75 Fed. Reg. 41759 (2010).
146. The July 19, 2010 interim final rule was enacted without prior notice of rulemaking or opportunity for public comment, because Defendants determined for themselves that “it would be impracticable and contrary to the public interest to delay putting the provisions . . . in place until a full public notice and comment process was completed.” 75 Fed. Reg. at 41730.
147. Although Defendants suggested in the Interim Final Rule that they would solicit public comments after implementation, they stressed that “provisions of the Affordable Care Act protect significant rights” and therefore it was expedient that “participants, beneficiaries, insureds, plan sponsors, and issuers have certainty about their rights and responsibilities.” Id.
148. Defendants stated they would later “provide the public with an opportunity for comment, but without delaying the effective date of the regulations,” demonstrating their intent to impose the regulations regardless of the legal flaws or general opposition that might be manifest in public comments. Id.
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149. In addition to reiterating the Affordable Care Act’s preventive services coverage requirements, the Interim Final Rule provided further guidance concerning the Act’s restriction on cost sharing.
150. The Interim Final Rule makes clear that “cost sharing” refers to “outof-pocket” expenses for plan participants and beneficiaries. 75 Fed. Reg. at 41730.
151. The Interim Final Rule acknowledges that, without cost sharing, expenses “previously paid out-of-pocket” would “now be covered by group health plans and issuers” and that those expenses would, in turn, result in “higher average premiums for all enrollees.” Id.; see also id. at 41737 (“Such a transfer of costs could be expected to lead to an increase in premiums.”). In other words, the prohibition on cost-sharing was simply a way “to distribute the cost of preventive services more equitably across the broad insured population.” 75 Fed. Reg. at 41730.
152. After the Interim Final Rule was issued, numerous commenters warned against the potential conscience implications of requiring religious individuals and organizations to include certain kinds of services—specifically contraception, sterilization, and abortion services—in their health care plans.
153. Defendants directed a private health policy organization, the Institute of Medicine (IOM), to make recommendations regarding which drugs, procedures, and services all health plans should cover as preventive care for women.
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154. In developing its guidelines, IOM invited a select number of groups to make presentations on the preventive care that should be mandated by all health plans. These were the Guttmacher Institute, the American Congress of Obstetricians and Gynecologists (ACOG), John Santelli, the National Women’s Law Center, National Women’s Health Network, Planned Parenthood Federation of America, and Sara Rosenbaum.
155. No religious groups or other groups that opposed governmentmandated coverage of contraception, sterilization, abortion, and related education and counseling were among the invited presenters.
156. On July 19, 2011, the IOM published its preventive care guidelines for women, including a recommendation that preventive services include “[a]ll Food and Drug Administration approved contraceptive methods [and] sterilization procedures.” Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps, at 102-10 and Recommendation 5.5 (July 19, 2011).
157. FDA-approved contraceptive methods include contraception, abortifacients, birth-control pills, contraceptive devices such as IUDs, Plan B (also known as the “morning-after pill”), ulipristal (also known as “ella” or the “weekafter pill”), and other drugs, devices, and procedures.
158. Some of these drugs and devices—including the “emergency contraceptives” Plan B and ella and certain IUDs—are known abortifacients, in
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that they can cause the death of an embryo by preventing it from implanting in the wall of the uterus.
159. Indeed, the FDA’s own Birth Control Guide states that both Plan B and ella can work by “preventing attachment (implantation) to the womb (uterus).” FDA, Office of Women’s Health, Birth Control Guide at 16-17, available at (http://www.fda.gov/ForConsumers/ByAudience/ForWomen/ucm118465.htm, last visited Aug. 29, 2013).
160. On August 1, 2011, thirteen days after IOM issued its recommendations, HRSA issued guidelines adopting them in full. (http://www.hrsa.gov/womensguidelines, last visited Aug. 29, 2013). The “Religious Employers” Exemption
161. That same day, Defendants promulgated an additional Interim Final Rule. 76 Fed. Reg. 46621 (Aug. 3, 2011).
162. This Second Interim Final Rule granted HRSA “discretion to exempt certain religious employers from the Guidelines where contraceptive services are concerned.” 76 Fed. Reg. 46621, 46623.
163. The term “religious employer” was restrictively defined as one that (1) has as its purpose the “inculcation of religious values”; (2) “primarily employs persons who share the religious tenets of the organization”; (3) “serves primarily persons who share the religious tenets of the organization”; and (4) “is a nonprofit
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organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 76 Fed. Reg. at 46626.
164. The fourth of these requirements refers to “churches, their integrated auxiliaries, and conventions or associations of churches” and the “exclusively religious activities of any religious order.” 26 U.S.C.A. § 6033.
165. Thus, the “religious employers” exemption was severely limited to formal churches, their integrated auxiliaries, and religious orders whose purpose is to inculcate faith and that hire and serve primarily people of their own faith tradition.
166. HRSA exercised its discretion to grant an exemption for religious employers via a footnote on its website listing the Women’s Preventive Services Guidelines. The footnote states that “guidelines concerning contraceptive methods and counseling described above do not apply to women who are participants or beneficiaries in group health plans sponsored by religious employers.” (http://www.hrsa.gov/womensguidelines, last visited Aug. 29, 2013).
167. Although religious organizations share the same religious beliefs and concerns as objecting churches, their integrated auxiliaries, and objecting religious orders, Defendants deliberately ignored the regulation’s impact on their religious liberty, stating that the exemption sought only “to provide for a religious
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accommodation that respects the unique relationship between a house of worship and its employees in ministerial positions.” 76 Fed. Reg. 46621, 46623.
168. Thus, the vast majority of religious organizations with conscientious objections to providing contraceptive or abortifacient services were excluded from the “religious employers” exemption.
169. Like the original Interim Final Rule, the Second Interim Final Rule was made effective immediately, without prior notice or opportunity for public comment.
170. Defendants acknowledged that “while a general notice of proposed rulemaking and an opportunity for public comment is generally required before promulgation of regulations,” they had “good cause” to conclude that public comment was “impracticable, unnecessary, or contrary to the public interest” in this instance. 76 Fed. Reg. at 46624.
171. Upon information and belief, after the Second Interim Final Rule was put into effect, over 100,000 comments were submitted opposing the narrow scope of the “religious employers” exemption and protesting the contraception mandate’s gross infringement on the rights of religious individuals and organizations.
172. Defendants did not take into account the concerns of religious organizations in the comments submitted before the Second Interim Rule was issued.
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173. Instead the Second Interim Rule was unresponsive to the concerns,

including claims of statutory and constitutional conscience rights, stated in the

comments submitted by religious organizations.

The Safe Harbor

174. The public outcry for a broader religious employers exemption

continued for many months, and on January 20, 2013, Defendants issued a press

release acknowledging “the important concerns some have raised about religious

liberty” and stating that religious objectors would be “provided an additional year .

.

.

to

comply

with

the

new

law.”

(http://www.hhs.gov/news/press/2012pres/01/20120120a.html, last visited Aug.

29, 2013).

175. On February 10, 2012, Defendants formally announced a “safe

harbor” for non-exempt nonprofit religious organizations that objected to covering

free contraceptive and abortifacient services.

176. There was no “safe harbor” for for-profit companies or owners, such

as Plaintiffs Daniel Weingartz or Weingartz Supply Company.

177. Under the safe harbor, Defendants agreed it would not take any

enforcement action against an eligible organization during the safe harbor, which

would remain in effect until the first plan year beginning after August 1, 2013.

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178. Defendants also indicated it would develop and propose changes to the regulations to accommodate the objections of non-exempt, nonprofit religious organizations following August 1, 2013.
179. Despite the safe harbor and Defendants’ accompanying promises, on February 15, 2012, Defendants published a final rule “finalizing, without change,” the contraception and abortifacient mandate and narrow religious employers exemption. 77 Fed. Reg. 8725-01 (Feb. 15, 2012). Advance Notice of Proposed Rulemaking
180. On March 21, 2012, Defendants issued an Advance Notice of Proposed Rulemaking (ANPRM), presenting “questions and ideas” to “help shape” a discussion of how to “maintain the provision of contraceptive coverage without cost sharing,” while accommodating the religious beliefs of non-exempt religious organizations. 77 Fed. Reg. 16501, 16503 (2012).
181. The ANPRM conceded that forcing religious organizations to “contract, arrange, or pay for” the objectionable contraceptive and abortifacient servicers would infringe their “religious liberty interests.” Id. (emphasis added).
182. In vague terms, the ANPRM proposed that the “health insurance issuers” for objecting religious employers could be required to “assume the responsibility for the provision of contraceptive coverage without cost sharing.” Id.
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183. For the first time, and contrary to the earlier definition of “cost sharing,” Defendants suggested in the ANPRM that insurers and third party administrators could be prohibited from passing along their costs to the objecting religious organizations via increased premiums. See id.
184. “[A]pproximately 200,000 comments” were submitted in response to the ANPRM, 78 Fed. Reg. 8456, 8459, largely reiterating previous comments that the ANPRM’s proposals would not resolve conscientious objections, because the objecting religious organizations, by providing a health care plan in the first instance, would still be coerced to arrange for and facilitate access to abortifacient services. Notice of Proposed Rulemaking
185. On February 1, 2013, Defendants issued a Notice of Proposed Rulemaking (NPRM) purportedly addressing the comments submitted in response to the ANPRM. 78 Fed. Reg. 8456 (Feb. 6, 2013).
186. The NPRM proposed two changes to the then-existing regulations. 78 Fed. Reg. 8456, 8458-59.
187. First, it proposed revising the religious employers’ exemption by eliminating the requirements that religious employers have the purpose of inculcating religious values and primarily employ and serve only persons of their same faith. 78 Fed. Reg. at 8461. Under this proposal a “religious employer”
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would be one “that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue] Code.” 78 Fed. Reg. at 8461.
188. Defendants emphasized, however, that this proposal “would not expand the universe of employer plans that would qualify for the exemption beyond that which was intended in the 2012 final rules.” 78 Fed. Reg. 8456, 8461.
189. In other words, religious organizations that are not formal churches or religious orders would continue to be excluded from the exemption.
190. Second, the NPRM reiterated HHS’s intention to “accommodate” non-exempt, nonprofit religious organizations by making them “designate” their insurers and third party administrators to provide plan participants and beneficiaries with free access to contraceptive and abortifacient drugs and services.
191. The proposed “accommodation” did not resolve the concerns of religious organizations, such as Plaintiff Legatus, because it continued to force them to deliberately provide health insurance that would directly trigger access to abortion-inducing drugs and related education and counseling.
192. In issuing the NPRM, HHS requested comments from the public by April 8, 2013. 78 Fed. Reg. 8457.
193. “[O]ver 400,000 comments” were submitted in response to the NPRM, 78 Fed. Reg. 39870, 39871, with religious organizations again
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overwhelmingly decrying the proposed accommodation as a gross violation of their religious liberty because it would conscript their health care plans as the main component in the government’s scheme for expanding access to contraceptive and abortifacient services.
194. On April 8, 2013, the same day the notice-and-comment period ended, Defendant Sebelius answered questions about the contraceptive and abortifacient services requirement in a presentation at Harvard University. In her remarks, Secretary Sebelius stated:
We have just completed the open comment period for the so-called accommodation, and by August 1st of this year, every employer will be covered by the law with one exception. Churches and church dioceses as employers are exempted from this benefit. But Catholic hospitals, Catholic universities, other religious entities will be providing coverage to their employees starting August 1st. . . . [A]s of August 1st, 2013, every employee who doesn’t work directly for a church or a diocese will be included in the benefit package. See The Forum at Harvard School of Public Health, A Conversation with Kathleen Sebelius, U.S. Secretary of Health and Human Services, Apr. 8, 2013, available at (http://theforum.sph.harvard.edu/events/conversation-kethleen-sebelius, last visited Aug. 29, 2013) (Episode 9 at 2:25) (emphases added). 195. From the timing of these remarks, it seems that Defendants gave no consideration to the comments submitted in response to the NPRM’s proposed “accommodation.”
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The Final Mandate 196. On June 28, 2013, Defendants issued a final rule (the “Final
Mandate”), which ignores the objections repeatedly raised by religious organizations and continues to co-opt objecting religious employers into the government’s scheme of expanding free access to contraceptive and abortifacient services. 78 Fed. Reg. 39870.
197. Under the Final Mandate, the discretionary “religious employers” exemption, which is still implemented via footnote on the HRSA website, (http://www.hrsa.gov/womensguidelines, last visited Aug. 29, 2013), remains limited to formal churches and religious orders “organized and operate[d]” as nonprofit entities and “referred to in section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue] Code.” 78 Fed. Reg. at 39874.
198. All other religious organizations, including Plaintiff Legatus, are excluded from the exemption.
199. The Final Mandate creates a separate “accommodation” for certain non-exempt religious organizations. 78 Fed. Reg. at 39874.
200. An organization is eligible for the accommodation if it (1) “[o]pposes providing coverage for some or all of the contraceptive services required”; (2) “is organized and operates as a nonprofit entity”; (3) “holds itself out as a religious
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organization”; and (4) “self-certifies that it satisfies the first three criteria.” 78 Fed. Reg. at 39874.
201. The self-certification must be executed “prior to the beginning of the first plan year to which an accommodation is to apply.” 78 Fed. Reg. at 39875.
202. The Final Rule extends the current safe harbor through the end of 2013. 78 Fed. Reg. at 39889.
203. Thus, an eligible organization would need to execute the selfcertification prior to its first plan year that begins on or after January 1, 2014, and deliver it to the organization’s insurer or, if the organization has a self-insured plan, to the plan’s third party administrator. 78 Fed. Reg. at 39875.
204. By the terms of the accommodation, Plaintiff Legatus will be required to execute the self-certification and deliver it to its insurance issuer before January 1, 2014.
205. By delivering its self-certification to its insurer administrator, Plaintiff Legatus would directly trigger the insurer’s obligation to make “separate payments for contraceptive services for Plaintiff Legatus’ plan participants and beneficiaries.” 78 Fed. Reg. at 39875-76.
206. Plaintiff Legatus would have to identify its employees to their insurer, Blue Cross/ Blue Shield of Michigan for the distinct purpose of enabling the
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government’s scheme to facilitate free access to contraceptive and abortifacient services.
207. The insurer’s obligation to make direct payments for contraceptive and abortion services would continue only “for so long as the participant or beneficiary remains enrolled in the plan.” 78 Fed. Reg. at 39876.
208. Thus Plaintiff Legatus would have to coordinate with its insurer and regarding when it was adding or removing employees and beneficiaries from its healthcare plan and, as a result, from the contraceptive and abortifacient services payment scheme.
209. Insurers would be required to notify plan participants and beneficiaries of the contraceptive payment benefit “contemporaneous with (to the extent possible) but separate from any application materials distributed in connection with enrollment” in a group health plan. 78 Fed. Reg. at 39876.
210. This would also require Plaintiff Legatus to coordinate the notices with its insurer.
211. The insurer would be required to provide the contraceptive benefits “in a manner consistent” with the provision of other covered services. 78 Fed. Reg. at 39876-77.
212. Thus, any payment or coverage disputes presumably would be resolved under the terms of Plaintiff Legatus’ existing plan documents.
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213. Thus, even under the accommodation, Plaintiff Legatus and every other non-exempt objecting religious organization would continue to play a central role in facilitating free access to contraceptive and abortifacient services.
214. Under the accommodation, issuers “may not impose any cost-sharing requirements (such as a copayment, coinsurance, or a deductible), or impose any premium, fee, or other charge, or any portion thereof, directly or indirectly, on the eligible organization.” 78 Fed. Reg. at 39896 (emphasis added).
215. For all other preventive services, including non-contraceptive preventive services for women, only cost-sharing (i.e., out-of-pocket expense) is prohibited. There is no restriction on passing along costs via premiums or other charges.
216. Defendants state that they “continue to believe, and have evidence to support,” that providing payments for contraceptive and abortifacient services will be “cost neutral for issuers,” because “[s]everal studies have estimated that the costs of providing contraceptive coverage are balanced by cost savings from lower pregnancy-related costs and from improvements in women’s health.” 78 Fed. Reg. at 39877.
217. On information and belief, the studies Defendants rely upon to support this claim are severely flawed.
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218. Nevertheless, even if the payments were—over time—to become cost neutral, it is undisputed that there will be up-front costs for making the payments. See, e.g., 78 Fed. Reg. at 39877-78 (addressing ways insurers can cover up-front costs).
219. Moreover, if cost savings arise that make insuring an employer’s employees cheaper, the savings would have to be passed on to employers through reduced premiums, not retained by insurance issuers.
220. Defendants suggest that, to maintain cost neutrality, issuers may simply ignore this fact and “set the premium for an eligible organization’s large group policy as if no payments for contraceptive services had been provided to plan participants.” 78 Fed. Reg. at 39877.
221. This encourages issuers to artificially inflate the eligible organization’s premiums.
222. Even assuming the legality of the “accommodation,” the eligible organization would still bear the cost of the required payments for contraceptive and abortifacient services in violation of its conscience, as if the accommodation had never been made.
223. Defendants have suggested that “[a]nother option” would be to “treat the cost of payments for contraceptive services . . . as an administrative cost that is
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spread across the issuer’s entire risk pool, excluding plans established or maintained by eligible organizations.” 78 Fed. Reg. at 39878.
224. There is no legal authority for forcing third parties to pay for services provided to eligible organizations under the accommodation.
225. Furthermore, under the Affordable Care Act, Defendants lack authority in the first place to coerce insurers to directly purchase contraceptive and abortifacient services for an eligible organization’s plan participants and beneficiaries.
226. Thus, the accommodation fails to protect objecting religious organizations for lack of statutory authority.
227. For all these reasons, the accommodation does nothing to relieve nonexempt religious organizations with insured plans from being co-opted as the central component in the government’s scheme to expand access to free contraceptive and abortifacient services.
228. Plaintiff Legatus’ religious beliefs preclude it from soliciting, contracting with, or designating a third party to provide religiously objectionable drug, devices, or services.
229. There is no way to ensure that the cost of administering the contraceptive and abortifacient services would not be passed on to Plaintiff Legatus through the insurer’s fees.
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230. Moreover, taking the user fees intended for funding the federal exchanges and using them to provide contraceptive and abortifacient services to employees not participating in the federal exchanges would violate the statute authorizing the user fees. See 78 Fed. Reg. at 15412; 31 U.S.C. § 9701.
231. The “accommodation” is nothing more than a shell game that attempts to disguise the religious organization’s role as the central component in the government’s scheme for expanding access to contraceptive and abortifacient services.
232. Despite the accommodation’s convoluted machinations, a religious organization’s decision to offer health insurance and its self-certification continue to serve as the sole triggers for creating access to free contraceptive and abortifacient services.
233. Plaintiff Legatus cannot participate in or facilitate the government’s scheme in this manner without violating its religious convictions.
234. Defendants have made absolutely no attempt to accommodate or exempt for-profit companies or its individual owners, such as Plaintiffs Weingartz Supply Company of Daniel Weingartz
235. It is inevitable with the current state of the law that Plaintiffs will have to comply with the Mandate, despite the fact that Plaintiffs will violate the teachings of their religious beliefs and the teachings of their Catholic faith by
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directly facilitating access to, providing, funding, and/or allowing the disseminating information and guidance about where to obtain contraception, abortion, or abortifacient services.
236. Plaintiffs plan years begin on January 1. 237. Without a preliminary or permanent injunction from the Court or a Declaratory Judgment halting the mandate, Plaintiffs must choose between violating federal law and incurring penalties, dropping group health insurance altogether for their employees, or violating their sincerely held religious beliefs. Mandate is Not Narrowly Tailored to Meet a Compelling Governmental Interest 238. The government lacks any compelling interest in coercing Plaintiffs to facilitate access to or provide contraceptive or abortifacient services. 239. The required contraceptives and abortifacient drugs, devices, and related services are already widely available at non-prohibitive costs at health centers and pharmacies nationally, even without a prescription. 240. There are multiple ways in which the government could provide access without forcing employers with religious objections to act in violation of their religious beliefs. 241. For example, it could pay for the objectionable services through its existing network of family planning services funded under Title X, through direct
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government payments, the government’s exchanges or websites, or through tax deductions, refunds, or credits.
242. The government could also simply exempt all religious organizations and employers who object in accordance with their religious beliefs, just as it has already exempted nonprofit religious employers referred to in Section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code.
243. Defendants claim that its “religious employers” exemption does not undermine its compelling interest in making contraceptive and abortifacient services available for free to women because “houses of worship and their integrated auxiliaries that object to contraceptive coverage on religious grounds are more likely than other employers to employ people who are of the same faith and/or adhere to the same objection, and who would therefore be less likely than other people to use contraceptive services even if such services were covered under their plan.” 78 Fed. Reg. at 39887.
244. In one form or another, the government also provides exemptions for grandfathered plans, 42 U.S.C. § 18011; 75 Fed. Reg. 41,726, 41,731 (2010), and certain religious denominations, 26 U.S.C. § 5000A(d)(2)(a)(i) and (ii) (individual mandate does not apply to members of “recognized religious sect or division” that conscientiously objects to acceptance of public or private insurance funds); 26
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U.S.C. § 5000A(d)(2)(b)(ii) (individual mandate does not apply to members of “health care sharing ministry” that meets certain criteria).
245. These broad exemptions further demonstrate that the government has no compelling interest in refusing to include employer with religious objections, such as Plaintiffs, within its religious employers exemption.
246. Employers who follow Defendants’ guidelines may continue to use grandfathered plans indefinitely.
247. Indeed, Defendants have predicted that a majority of large employers, employing more than 50 million Americans, will continue to use grandfathered plans through at least 2014, and that a third of medium-sized employers with between 50 and 100 employees may do likewise. 75 Fed. Reg. 34538 (June 17, 2010); (http://www.healthcare.gov/news/ factsheets/2010/06/keeping-the-health planyou-have-grandfathered.html, last visited Aug. 29, 2013) (noting that amendment to regulations “will result in a small increase in the number of plans retaining their grandfathered status relative to the estimates made in the grandfathering regulation”).
248. The government’s recent decision to postpone the employer mandate—i.e., the annual fine of $2000 per employee for not offering any insurance—also demonstrates that there is no compelling interest in coercing universal compliance with the Final Mandate concerning contraceptive and
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abortifacient services, since employers can now drop their insurance entirely without any penalty, at least for one additional year.
249. These broad exemptions also demonstrate that the Final Mandate is not a generally applicable law entitled to judicial deference, but rather is constitutionally flawed.
250. The government’s willingness to exempt various secular organizations and postpone the employer mandate, while adamantly refusing to provide anything but the narrowest of exemptions for religious organizations or employers with religious objections also shows that the Final Mandate is not neutral, but rather discriminates against employers with religious objections because of their religious commitment to promoting the sanctity of life.
251. Indeed, the Final Mandate was promulgated by government officials, and supported by non-governmental organizations, who strongly oppose religious teachings and beliefs regarding marriage and family.
252. Defendant Sebelius, for example, has long been a staunch supporter of abortion rights and a vocal critic of religious teachings and beliefs regarding abortion and contraception.
253. On October 5, 2011, six days after the comment period for the original interim final rule ended, Defendant Sebelius gave a speech at a fundraiser for
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NARAL Pro-Choice America. She told the assembled crowd that “we are in a war.”
254. She further criticized individuals and entities whose beliefs differed from those held by her and the others at the fundraiser, stating: “Wouldn’t you think that people who want to reduce the number of abortions would champion the cause of widely available, widely affordable contraceptive services? Not so much.”
255. On July 16, 2013, Secretary Sebelius further compared opponents of the Affordable Care Act generally to “people who opposed civil rights legislation in the 1960s,” stating that upholding the Act requires the same action as was shown “in the fight against lynching and the fight for desegregation.” (http://www.hhs.gov/secretary/about/speeches/sp20130716.html, last visited Aug. 7, 2013).
256. Consequently, on information and belief, Plaintiffs alleges that the purpose of the Final Mandate, including the restrictively narrow scope of the religious employers’ exemption, is to discriminate against employers who hold religious beliefs that oppose contraception and abortion.
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CLAIMS COUNT I Violation of the First Amendment to the United States Constitution Free Exercise Clause 257. Plaintiffs incorporate by reference all preceding paragraphs. 258. Plaintiffs’ sincerely held religious beliefs prohibit it from providing coverage for contraception, abortion, or related education and counseling. Plaintiffs’ compliance with these beliefs is a religious exercise. 259. Neither the Affordable Care Act nor the Mandate is neutral. 260. Neither the Affordable Care Act nor the Mandate is generally applicable. 261. Defendants have created categorical exemptions and individualized exemptions to the Mandate. 262. The Mandate furthers no compelling governmental interest. 263. The Mandate is not the least restrictive means of furthering Defendants’ stated interests. 264. The Mandate creates government-imposed coercive pressure on Plaintiffs to change or violate their religious beliefs. 265. The Mandate chills Plaintiffs’ religious exercise. 266. The Mandate exposes Plaintiffs to substantial competitive disadvantages, in that it will no longer be permitted to offer health insurance.
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267. The Mandate exposes Plaintiffs to substantial fines for their religious exercise.
268. The Mandate exposes Plaintiffs to monetary and health risks as they will no longer be able to accept health insurance, nor be able to purchase or provide health care insurance without violating their religious beliefs.
269. The Mandate imposes a substantial burden on Plaintiffs’ religious exercise.
270. The Mandate is not narrowly tailored to any compelling governmental interest.
271. The Mandate and Defendants’ threatened enforcement of the Mandate violate Plaintiffs’ rights secured to them by the Free Exercise Clause of the First Amendment to the United States Constitution.
272. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT II Violation of the First Amendment to the United States Constitution
Free Exercise Clause 273. Plaintiffs incorporate by reference all preceding paragraphs. 274. Plaintiffs’ sincerely held religious beliefs prohibit them from facilitating access to, purchasing, or providing coverage for contraception,
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abortion, or related education and counseling. Plaintiffs’ compliance with these beliefs is a religious exercise.
275. Despite being informed in detail of these beliefs beforehand, Defendants designed the Mandate and the religious exemption to the Mandate in a way that made it impossible for Plaintiffs to comply with their religious beliefs.
276. Defendants promulgated both the Mandate and the religious exemption to the Mandate in order to suppress the religious exercise of Plaintiffs and others.
277. The Mandate and Defendants’ threatened enforcement of the Mandate thus violate Plaintiffs’ rights secured to them by the Free Exercise Clause of the First Amendment of the United States Constitution.
278. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT III Violation of the First Amendment to the United States Constitution
Free Exercise Clause 279. Plaintiffs incorporate by reference all preceding paragraphs. 280. By design, Defendants imposed the Mandate on some religious organizations or religious individuals but not on others, resulting in discrimination among religions.
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281. The Mandate vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations meeting the definition of “religious employers.”
282. The Mandate vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no religious individuals.
283. The Mandate and Defendants’ threatened enforcement of the Mandate thus violate Plaintiffs’ rights secured to it by the Free Exercise Clause of the First Amendment of the United States Constitution.
284. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT IV Violation of the First Amendment to the United States Constitution
Establishment Clause 285. Plaintiffs incorporate by reference all preceding paragraphs. 286. By design, defendants imposed the Mandate on some religious organizations but not on others, resulting in a selective burden on Plaintiffs. 287. Defendants also imposed the Mandate on some religious individuals and religious organizations but not on others, resulting in a selective burden on Plaintiffs.
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288. The Mandate vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations meeting the definition of “religious employers.”
289. The Mandate also vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no individuals.
290. The Mandate and Defendants’ threatened enforcement of the Mandate therefore violates Plaintiffs’ rights secured to it by the Establishment Clause of the First Amendment to the United States Constitution.
291. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT V Violation of the First Amendment to the United States Constitution
Freedom of Speech 292. Plaintiffs incorporate by reference all preceding paragraphs. 293. Plaintiffs profess, educate, lecture, give presentations, and engage in outreach amongst Legatus members and in their community that contraception, abortion, and abortifacients violate their religious beliefs. 294. The Mandate would compel Plaintiffs to provide or subsidize activities that Plaintiffs profess, educate, lecture, give presentations, and engage in outreach amongst over 4,000 members of Legatus and in their community are violations of the Plaintiffs’ religious beliefs.
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295. The Mandate would compel Plaintiffs to fund and to provide education and counseling related to contraception, abortion, and abortifacients.
296. Defendants’ actions thus violate Plaintiffs’ right to be free from compelled speech as secured to it by the First Amendment of the United States Constitution.
297. The Mandate’s compelled speech requirement is not narrowly tailored to a compelling governmental interest.
298. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT VI Violation of the First Amendment to the United States Constitution
Expressive Association 299. Plaintiffs incorporate by reference all preceding paragraphs. 300. Plaintiffs profess, educate, lecture, give presentations, and engage in outreach amongst the over 4,000 members of Legatus and in their community that contraception, abortion, and abortifacients violate their religious beliefs. 301. The Mandate would compel Plaintiffs to subsidize activities that Plaintiffs profess, educate, lecture, give presentations, and engage in outreach amongst the over 4,000 members of Legatus and in their community are violations of Plaintiffs’ religious beliefs.
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302. The Mandate would compel Plaintiffs to facilitate access to, to fund, and to provide education and counseling related to contraception, abortion, and abortifacients.
303. Defendants’ actions thus violate Plaintiffs’ right of expressive association as secured to it by the First Amendment of the United States Constitution.
304. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT VII Violation of the First Amendment to the United States Constitution
Free Exercise Clause and Freedom of Speech 305. Plaintiffs incorporate by reference all preceding paragraphs. 306. By stating that HRSA “may” grant an exemption to certain religious groups, the Mandate vests HRSA with unbridled discretion over which organizations or individuals can have its First Amendment interests accommodated. 307. The Mandate vests HRSA with unbridled discretion to determine whether a religious individual or organization such as Plaintiffs fall under a religious exemption. 308. The Mandate furthermore seems to have completely failed to address the constitutional and statutory implications of the Mandate on for-profit, secular
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employers such as Plaintiff Weingartz Supply Company and Plaintiff Daniel Weingartz. As such, Plaintiff Weingartz Supply Company and Plaintiff Daniel Weingartz are subject to the unbridled discretion of HRSA to determine whether such companies would be exempt.
309. Defendants’ actions therefore violate Plaintiffs’ right not to be subjected to a system of unbridled discretion when engaging in speech or when engaging in religious exercise, as secured to it by the First Amendment of the United States Constitution.
310. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT VIII Violation of the Religious Freedom Restoration Act 311. Plaintiffs incorporate by reference all preceding paragraphs. 312. Plaintiffs’ sincerely held religious beliefs prohibit it from facilitating access to, providing, or purchasing coverage for contraception, abortion, abortifacients, or related education and counseling. Plaintiffs’ compliance with these beliefs is a religious exercise. 313. The Mandate creates government-imposed coercive pressure on Plaintiffs to change or violate their religious beliefs. 314. The Mandate chills Plaintiffs’ religious exercise.
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315. The Mandate exposes Plaintiffs to substantial fines for their religious exercise.
316. The Mandate exposes Plaintiffs to substantial competitive disadvantages, in that it will no longer be permitted to offer or purchase health insurance.
317. The Mandate imposes a substantial burden on Plaintiffs’ religious exercise.
318. The Mandate furthers no compelling governmental interest. 319. The Mandate is not narrowly tailored to any compelling governmental interest. 320. The Mandate is not the least restrictive means of furthering Defendants’ stated interests. 321. The Mandate and Defendants’ threatened enforcement of the Mandate violate Plaintiffs’ rights secured to it by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. 322. Absent injunctive and declaratory relief against the Defendants, Plaintiffs have been and will continue to be harmed.
COUNT IX Violation of the Administrative Procedure Act 323. Plaintiffs incorporate by reference all preceding paragraphs.
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324. Defendants’ stated reasons that public comments were unnecessary, impractical, and opposed to the public interest are false and insufficient, and do not constitute “good cause.”
325. Without proper notice and opportunity for public comment, Defendants were unable to take into account the full implications of the regulations by completing a meaningful “consideration of the relevant matter presented.” Defendants did not consider or respond to the voluminous comments they received in opposition to the interim final rule.
326. Therefore, Defendants have taken agency action not in observance with procedures required by law, and Plaintiffs are entitled to relief pursuant to 5 U.S.C. § 706(2)(D).
327. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT X Violation of the Administrative Procedure Act 328. Plaintiffs incorporate by reference all preceding paragraphs. 329. In promulgating the Mandate, Defendants failed to consider the constitutional and statutory implications of the mandate on Plaintiffs and similar organizations, companies, and individuals. 330. Defendants’ explanation for its decision not to exempt Plaintiffs and similar religious organizations and religious individuals from the Mandate runs
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counter to the evidence submitted by religious organizations during the comment period.
331. Thus, Defendants’ issuance of the interim final rule was arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because the rules fail to consider the full extent of their implications and they do not take into consideration the evidence against them.
332. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT XI Violation of the Administrative Procedure Act 333. Plaintiffs incorporate by reference all preceding paragraphs. 334. The Mandate is contrary to the provisions of the Weldon Amendment of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act of 2009, Public Law 110 329, Div. A, Sec. 101, 122 Stat. 3574, 3575 (September 30, 2008). 335. The Weldon Amendment provides that “[n]one of the funds made available in this Act [making appropriations for Defendants United States Department of Labor and United States Department of Health and Human Services] may be made available to a Federal agency or program . . . if such agency, program, or government subjects any institutional or individual health care
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entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.”
336. The Mandate requires issuers, employers, and individuals, including Plaintiffs and Plaintiff Legatus’ members to provide and purchase coverage of all Federal Drug Administration-approved contraceptives.
337. Some FDA-approved contraceptives cause abortions. 338. As set forth above, the Mandate violates RFRA and the First Amendment. 339. Under 5 U.S.C. § 706(2)(A), the Mandate is contrary to existing law, and is in violation of the Administrative Procedure Act. 340. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT XII Violation of the Administrative Procedure Act 341. Plaintiffs incorporate by reference all preceding paragraphs. 342. The Mandate is contrary to the provisions of the Affordable Care Act. 343. Section 1303(b)(1)(A) of the Affordable Care Act states that “nothing in this title”—i.e., title I of the Act, which includes the provision dealing with “preventive services”—“shall be construed to require a qualified health plan to provide coverage of [abortion] services . . . as part of its essential health benefits for any plan year.”
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344. Section 1303 further states that it is “the issuer” of a plan that “shall determine whether or not the plan provides coverage” of abortion services.
345. Under the Affordable Care Act, Defendants do not have the authority to decide whether a plan covers abortion; only the issuer does.
346. However, the Mandate requires all issuers, including Plaintiffs and Plaintiffs’ insurance issuer Blue Cross/Blue Shield of Michigan, to provide coverage of all Federal Drug Administration-approved contraceptives.
347. Some FDA-approved contraceptives cause abortions. 348. Under 5 U.S.C. § 706(2)(A), the Mandate is contrary to existing law, and is in violation of the Administrative Procedure Act. 349. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
PRAYER FOR RELIEF Wherefore, Plaintiffs request that the Court: a. Declare that the Mandate and Defendants’ enforcement of the Mandate against Plaintiffs violates the First Amendment to the United States Constitution; b. Declare that the Mandate and Defendants’ enforcement of the Mandate against Plaintiffs violates the Religious Freedom Restoration Act;
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c. Declare that the Mandate was issued in violation of the Administrative
Procedure Act;
d. Issue both a preliminary and a permanent injunction prohibiting and
enjoining Defendants from enforcing the Mandate against Plaintiffs and other
religious organizations, religious individuals, employers, and companies that object
to funding and providing insurance coverage for contraceptives, abortion,
abortifacients, and related education and counseling;
e. Award Plaintiffs the costs of this action and reasonable attorney’s
fees; and
f. Award such other and further relief as it deems equitable and just.
Respectfully submitted,
THOMAS MORE LAW CENTER
/s/ Erin Elizabeth Mersino Erin Elizabeth Mersino, Esq. (P70886) Richard Thompson, Esq. (P21410) 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, Michigan 48106 Tel (734) 827-2001 Fax (734) 930-7160 emersino@thomasmore.org
LAW OFFICE OF CHARLES S. LIMANDRI, APC Charles S. LiMandri, Esq. (CA Bar No. 110841) Teresa Mendoza, Esq. (CA Bar No. 185820) P.O. Box 9120
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Rancho Santa Fe, CA 92067 Tel (858) 759-9930 Fax (858) 759-9938 climandri@limandri.com Counsel for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that on August 30, 2013, a copy of the foregoing was filed electronically. Notice of this filing will be sent to all parties for whom counsel has entered an appearance by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s system. I certify that a copy of the foregoing has been served by ordinary U.S. Mail upon all parties for whom counsel has not yet entered an appearance electronically: None
THOMAS MORE LAW CENTER s/ Erin Mersino_________________ Erin Mersino, Esq. (P70886)
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 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LEGATUS, et al.,

Plaintiffs,

v.

Case No. 12-12061

KATHLEEN SEBELIUS, et al.,

Defendants. /

ORDER AND OPINION GRANTING PLAINTIFF LEGATUS’S MOTION FOR PRELIMINARY INJUNCTION

Legatus, a non-profit Catholic-faith oriented organization, initially moved for

preliminary injunction on August, 15, 2012, together with Weingartz Supply Company

and Daniel Weingartz, a for-profit business and its owner, under the Religious Freedom

Restoration Act (“RFRA”). On October 31, 2012, the court granted a preliminary

injunction as to Weingatz Supply Company and Weingartz, and denied without

prejudice a preliminary injunction as to Legatus. While the Government was working to

amend the final regulations, a temporary safe harbor protected Legatus, and the court

held that Legatus therefore did not yet have standing to challenge the contraceptive

coverage requirement of the Patient Protection and Affordable Care Act (“ACA”).

Legatus appealed the ruling, and pursuant to a joint motion the proceedings in this court

were stayed pending the appeal.

The Government published the amended final regulations on July 2, 2013.

Legatus voluntarily dismissed its appeal and on August 9, 2013, the court lifted the stay

and reopened the case with respect to Legatus and Defendants. Once again, Legatus

moves for a preliminary injunction under the RFRA. Despite being an “eligible organization,” and thereby qualifying for an accommodation under the amended final rules, Legatus seeks to enjoin the Government from enforcing the provision of the ACA that requires all group health plans, other than those that are “grandfathered” and exempt, to provide the full range of FDA-approved contraceptive methods without cost sharing. The matter is fully briefed, and no hearing is needed. See E.D. Mich. LR 7.1(f)(2). For the following reasons, the preliminary injunction will be granted as to Legatus.
I. BACKGROUND A. The Relevant Statutes and Regulations The ACA requires most businesses to provide insurance coverage, without cost sharing, for contraceptives, including “preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [‘HRSA’].” 42 U.S.C. § 300gg-13(a)(4). In this context, “without cost sharing” means free of cost to the patient. A health plan is considered “grandfathered” if an individual was enrolled in the plan on March 23, 2010 (the date on which the ACA was enacted) and the plan remained unchanged after that date. (AR at 231.) An employer with fewer than fifty full-time employees is not required to provide its employees health care; however, if it chooses to provide health insurance, then it must provide preventive services coverage, including contraception as described below, or
2

subject itself to a tax of “$100 for each day . . . with respect to each individual to whom such failure relates.” 26 U.S.C. §§ 4980H(a), (c)(2)(A); 26 U.S.C. §§ 4980D(a)1.
On July 19, 2010, the Government issued interim final regulations implementing the ACA’s preventive services coverage provision. (AR at 228–29.) The interim final regulations require a group health plan or health insurance issuer offering nongrandfathered health coverage to provide, without cost sharing, the recommended preventive services (“HRSA Mandate”). (Id.) Plans are required to comply with these preventive service recommendations starting with the plan year that begins on August 1, 2012. (Id.)
The HRSA enlisted the Institute of Medicine (“IOM”), an independent, non-profit organization established under the National Academy of Sciences, to develop preventative service recommendations for the HRSA guidelines. (AR at 300.) The IOM issued a report that recommended the HRSA guidelines include, among other things, “the full range of Food and Drug Administration [‘FDA’]-approved contraceptive methods, sterilization procedures, and patient and education counseling for women with reproductive capacity.” (AR at 308.) “FDA-approved contraceptive methods” include oral contraceptives, emergency contraceptive pills (such as “Plan B” and “Ella”), and intrauterine devices (“IUDs”). (AR at 403–04.) On August 1, 2011, the HRSA adopted the IOM’s recommendations in full. (AR at 264, 283–84.) On that same date, the Department of Health and Human Services (“HHS”) and the Department of Labor issued an amendment to the interim final rule that provided HRSA with discretion to
1 The ACA also provides tax incentives for small business to encourage the purchase of health insurance. See 26 U.S.C. § 45R.
3

exempt “religious employers” from covering contraceptive services. (AR at 220, 264.) A “religious employer” was defined as an employer that:
(1) [h]as the inculcation of religious values as its purpose; (2) primarily employs persons who share its religioustenets; (3) primarily serves persons who share its religious tenets; and (4) is a non-profit organization under section 6033(a)(1) and section 6033(a)(3)(A)(i) or ( iii) of the [Internal Revenue] Code.
(AR at 220) The HRSA subsequently exempted organizations that qualified as religious employers. (Id.)
On February 15, 2012, after allowing for public comment, the Government adopted in the final regulations the definition of “religious employer” as described in the amended interim final regulations. (AR at 214). These final regulations also contained a temporary enforcement safe harbor for non-grandfathered plans that do not qualify for the “religious employer” exemption. (Id.) During the temporary safe harbor, the Government developed and proposed changes to the final regulations for the purpose of satisfying two goals: “providing contraceptive coverage without cost-sharing to individuals who want it and accommodating non-exempted, non-profit organizations’ religious objections to covering contraceptive services.” (Id.) Without the safe harbor, non-grandfathered, non-exempted plans would be required to comply with the HRSA Mandate for plan years beginning on or after August 1, 2012. The safe harbor extended this date, by one year, to plan years beginning on or after August 1, 2013. (AR at 272.) The safe harbor expiration date was subsequently extended further to encompass plan years beginning on or after August 1, 2013 and before January 1, 2014. (AR at 265.)
4

On July 2, 2013, the Government issued the amended final regulations that became effective August 1, 2013, and applicable on January 1, 2014. (AR at 2.) The final amended definition of “religious employer” eliminates the first three prongs of the definition and clarifies the fourth in attempt to simplify its meaning. (AR at 6.) Specifically, the changes “were intended to ensure that an otherwise exempt plan is not disqualified because the employer’s purposes extend beyond the inculcation of religious values or because the employer hires or serves people of different religious faiths.” (Id.) Under the final amended rules, a “religious employer” is “an employer that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code.” (Id.) Those sections of the code refer to “churches, their integrated auxiliaries, and conventions or associations of churches, as well as to the exclusively religious activities of any religious order.” (Id.) Although the amended final regulations are generally applicable beginning January 1, 2014, the amendments to the “religious employer” exemption apply for plan years beginning on or after August 1, 2013. (AR at 2.)
Separate from the “religious employer” exemption, the amended final rules also “establish accommodations with respect to the contraceptive coverage requirement for health coverage established or maintained or arranged by eligible organizations.” (AR at 6.) An “eligible organization” is an organization that: “(1) Opposes providing coverage for some or all of the contraceptive services required to be covered . . . on account of religious objections; (2) is organized and operates as a nonprofit entity; (3) holds itself out as a religious organization; and (4) self-certifies that it satisfies the first
5

three criteria.” (Id.) To self-certify, an organization must provide its health insurance
provider or third party administrator (TPA) with a completed standardized form, verifying
that it meets the definition of an “eligible organization.” (Id.) The form must only be
executed one time, prior to the beginning of the first plan year to which an
accommodation will apply. (Id.) The regulations do not require that the self-certification
form be provided to the government. (Id.) Further, an issuer or TPA is prohibited from
requiring other documentation regarding the status of the eligible employer. (Id.)
According to the regulations, an “eligible organization” is “not required to
contract, arrange, pay, or refer for contraceptive coverage; however, plan participants
and beneficiaries . . . will still benefit from separate payments for contraceptive services
without cost sharing.” (Id.) The “Payments for contraceptive service” provision states:
(I) A group health i nsurance issuer that recei ves a copy of the sel fcertification described in par agraph (b)(4) of this section with respect to a group health plan established or maintained by an eligible organization in connection with which the issuer woul d otherwise provide contraceptive coverage under § 147.130(a)(1)(iv) must–
(A) Expressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan; and
(B) Provide separate payments for any cont raceptive services required to be covered under § 147.130(a)(1)(iv) for plan participants and beneficiaries for so long as they remain enrolled in the plan.
(ii) With respect to payments for contraceptive services, the issuer may not impose any cost-sharing requirements (such as a copayment, coinsurance, or a deductible), or imposeany premium, fee, or other charge, or any portion thereof, directly or indirectly, on the eligible organization, the group health plan, or plan participants or beneficia ries. T he issuer must segregate premium revenue collected from the eligible organization from the monies
6

used to provide payments for contraceptive services. The issuer must provide payments for contraceptive services in a manner that is consistent with the requirements under secti ons 2706, 2709, 2711, 2713, 2719, and 2719A of the PHS Act. If the group health plan of the eligible organization provides coverage for some but not alol f any contraceptive services required to be covered under §147.130(a) (1)(iv), the issuer is required to provide payments only for those contraceptive ser vices for which the group health plan does not provide coverage. However, the issuer may provide payments for all contraceptive services, at the issuer’s option.2
(AR at 35.)
The amended final regulations also require the insurance plan issuer to provide
plan participants and beneficiaries “written notice of the availability of separate
payments for contraceptive services contemporaneous with (to the extent possible), but
separate from, any application materials distributed in connection with enrollment (or re-
enrollment) in group health coverage.” The regulations provide model language:
Your [employer/institution of higher education] has certified that your [group health plan/student health insurance coverage] qualifies for an accommodation with respect to the feder al requirement to cover all Food and Drug Administration-approved contra ceptive services for women, as prescribed by a health care provider, without cost sharing. This means that your [employer/institution of higher education] will not contract, arrange, pay, or refer for contraceptive c overage. Instead, [name of health insurance issuer] will provide separate payments for contraceptive services that you use, without cost sharing and at no ot her cost, for so long as y ou are enrolled in your [group health plan/ student health insurance coverage]. Your [employer/institution of higher education] will not administer or fund these payments. If you have any ques tions about this notice, contact [contact information for health insurance issuer].
2 According to the federal register, “[a]n issuer (or its affiliate) would be able to offset the costs incurred by the [TPA] and the issuer in the course of arranging and providing such coverage by claiming an adjustment in the Federally-facilitated Exchange (FFE) user fee.” (AR at 3.) This appears to allocate the full actual cost of “free” services to the government.
7

(AR at 29.) In sum, under the ACA, most businesses must provide health insurance
coverage that includes FDA-approved contraceptive methods. However, these insurance requirements are not applicable to employers with fewer than fifty full-time employees, companies with health insurance plans in existence on March 23, 2012, and unchanged after that date, and “religious employers.” Finally, “eligible organizations”—essentially non-profits that oppose providing contraceptive services coverage on account of religious objections—qualify for an accommodation.
B. Legatus Legatus is a non-profit organization “established for the purpose of promoting the study, practice, and spread of the Catholic faith in the business, professional and personal lives of its members.” (Pg ID 926.) Legatus is comprised of more than 4,000 members, including individuals and professional organizations. (Id.) It is contrary to Catholic doctrine to use, pay for, or support the use of contraception. (Pg ID 927.) In accordance with its religious beliefs, Legatus designed a health insurance policy for its employees to specifically exclude contraception. (Id.) Together with Weingartz Supply Company and Daniel Weingartz, Legatus filed suit on May 7, 2012. At that time, and in October 2012, when the court granted a preliminary injunction as to Weingartz Supply Company and Weingartz, the safe harbor protected Legatus. Consequently, as Legatus lacked standing, the court refused to “enjoin the Government from enforcing a rule that [was] not yet finalized.” (Pg ID 549.) However, the court also noted that “in the event that the Government acts in a way
8

inimical to the rights Legatus seeks to protect—acts which the court presently views as doubtful—Legatus is not constrained from approaching the court with its concerns at that time.” (Pg ID 550.)
The safe harbor currently protecting Legatus expires on January 1, 2014. The parties agree that, under the regulations, Legatus does not qualify for the “religious employer” exemption and that Legatus made changes to its policy after March 23, 2010, and is therefore not a grandfathered plan. (Pg ID 929.) The parties also agree that Legatus meets the criteria for an “eligible organization” under the amended final regulations and thus has the option to self-certify as such. Nonetheless, Legatus argues that the “‘[eligible organization] accommodation’ for religious, non-profit organizations is inadequate because it still requires that such organizations facilitate coverage for contraceptives, abortion, and abortifacients3 contrary to their sincerely held religious beliefs.” (Pg ID 931.) Put differently, Legatus argues that “a religious organization’s decision to offer health insurance and its self-certification continue to serve as the sole triggers for creating access to free contraceptive and abortifacient services under the mandate’s accommodation.” (Id.) Further, Legatus argues that, although it could drop insurance coverage altogether as it has less than fifty full-time employees, this would both “violate its religious duty to provide for the health and well-
3 The Government takes issue with Legatus’s use of the terms “abortion” and “abortifacients,” noting that “the regulations do not violate federal restrictions relating to abortion because FDA-approved contraceptive methods, including Plan B, Ella, and IUDs, are not abortifacients within the meaning of federal law.” (AR at 20.) Moreover, “[e]mergency contraceptive pills are not effective if the woman is pregnant.” (Id. (internal quotation marks omitted).)
9

being of its employees and their families” and force Legatus “to be non-competitive as employers [sic] in a market where other, non-Catholic employers will be able to provide insurance to their employees under the [ACA] without violating their religious beliefs.” (Pg ID 932–33.) Legatus seeks a preliminary injunction under the RFRA, 42 U.S.C. § 2000bb, to prohibit the Government from enforcing the HRSA Mandate against it.
II. STANDARD
Legatus brings its preliminary injunction motion under the RFRA and not the Free Exercise Clause of the First Amendment.4 However, because the RFRA and the Free Exercise Clause both seek to protect the same liberty interest—the free practice of one’s religion—the court will take into account the jurisprudence of preliminary injunctions concerning First Amendment rights in deciding the present motion.
A preliminary injunction “is an extraordinary remedy which should be granted only if the movant carries his or her burden of proving that the circumstances clearly demand it.” Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566, 573 (6th Cir. 2002). Courts should consider: “(1) the likelihood that the movant will succeed on the merits; (2) whether the movant will suffer irreparable harm without the injunction; (3) the probability that granting the injunction will cause substantial harm to others; and (4) whether the public interest will be advanced by issuing the injunction.” Jones v. Caruso, 569 F.3d 258, 265 (6th Cir. 2009). “These factors are not prerequisites but are factors that are to be balanced against each other.” Overstreet, 305 F.3d at 573. However,
4 The Free Exercise Clause states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” U.S. Const. amend. I.
10

“when a party seeks a preliminary injunction on the basis of a potential violation of the First Amendment, the likelihood of success on the merits often will be the determinative factor.” Jones, 569 F.3d at 265. Therefore, “because the questions of harm to the parties and the public interest cannot be addressed properly in the First Amendment context without first determining if there is a constitutional violation, the crucial inquiry often is . . . whether the [regulation] at issue is likely to be found constitutional.” Connection Distributing Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998).
III. DISCUSSION A flurry of cases filed in the aftermath of the ACA’s passage challenged the HRSA Mandate. In many of these cases, the plaintiffs have been for-profit, secular companies (sometimes, but not always, corporations), that employ more than fifty fulltime employees, and that are owned by religiously motivated individuals or families, like the first Plaintiff in this case. Each case framed the issue similarly: to comply with the HRSA Mandate, the secular for-profit organization was forced to either provide contraceptive coverage in violation of their religious beliefs or pay a crippling penalty. See, e.g., Gilardi v. U.S. Dep’t of Health & Human Servs., 733 F.3d 1208, 1210 (D.C. Cir. 2013) (“[T]he Gilardis were faced with two choices: adjust their companies’ plans to provide the mandated contraceptive services in contravention of religious beliefs, or pay a penalty amounting to over $14 million per year.”); Conestoga Wood Specialties Corp. v. Sec’y of U.S. Dep’t of Health & Human Servs., 724 F.3d 377, 392 (3d Cir. 2013), cert. granted, 2013 WL 5297800 (Nov. 26, 2013) (“Conestoga and the Hahns now argue that the Mandate is forcing them, day by day, to either disobey their religious convictions or
11

to incur ruinous fines.”). Like Legatus, if these employers choose to provide health insurance that excludes contraception, they would be subjected to a $100 penalty for each employee per day. However, because Legatus has fewer than fifty full-time employees, if it dropped coverage altogether it would not face any penalty. In contrast, the fines in these cases were so severe because if an employer with at least fifty-one full-time employees does not offer health insurance to its employees, then beginning in 2014 the employer is assessed an annual penalty of $2,000 multiplied by the number of full-time employees minus thirty. Linda Chaikind & Chris L. Peterson, Summary of Potential Employer Penalties Under the Patient Protection and Affordable Care Act (PPACA), Congressional Research Service (2010), available at http:// www.shrm.org/ hrdisciplines/ benefits/ Documents/ Employer Penalties.pdf (the rendering of this URL and subsequent URLs contains spaces).
The choice that Legatus faces is different; Legatus has three primary options.5 First, to reiterate, as it employs less than fifty full-time employees, Legatus could drop health care coverage altogether. Second, it could self-certify as an “eligible organization.” Third, it could maintain its current health care coverage and be assessed a penalty of $100 for each day per employee. Legatus contends that either of the first
5 It appears that two other district courts have now ruled on whether the HRSA Mandate violated the RFRA as applied to religious non-profits that qualify for the accomodation. See Zubik v. Sebelius, Nos. 13cv1459, 13cv0303, 2013 WL 6118696, at *25 (W.D. Pa. Nov. 21, 2013); Roman Catholic Archdiocese of N.Y. v. Sebelius, No. 1:12-cv-02542 (E.D.N.Y. Dec. 16, 2013). In each of these cases, the Plaintiff employed more than fifty full-time employees. In both cases, the court granted an injunction and prohibited imposition of the HRSA Mandate.
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two options would force it to violate its religious beliefs and that the penalties it would face under the third are severe.
A. Standing As an initial matter, the court must determine whether Legatus has standing to seek a preliminary injunction under the RFRA and request that this court enjoin enforcement of the HRSA Mandate. In order to establish standing, three elements must be present: (1) the plaintiff suffered an “injury in fact,” (2) there is a causal connection between the injury and the conduct complained of, and (3) it must be “likely” that the injury will be “redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). An “injury in fact” is “an invasion of a legally protected interest which is (a) concrete or particularized and (b) actual or imminent, not conjectural or hypothetical.” Id. at 560 (internal citations omitted).
In the introduction to its brief, Legatus acknowledges that “as an employer with less than 50 employees, [it] could drop [its] health insurance altogether without an annual penalty . . . however, not being able to provide health insurance benefits to [its] employees places Legatus at a substantial disadvantage.” (Pg ID 844–45.) Legatus adds in the next sentence that it “has a religious duty to provide for the health and wellbeing of [its] employees in accordance with [its] Catholic Faith.” (Pg ID 845.) However, throughout its brief, when discussing the option of dropping coverage, Legatus focuses on the largely hypothetical competitive disadvantage it would face as an employer without explaining its alleged religious obligation to provide health care. Taken alone, as an undeveloped assertion, this injury may be too speculative to confer standing.
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However, the court cannot ignore Legatus’s statement that it perceives a religious obligation to provide for the health and well-being of its employees. “[E]xercise of religion” means “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A); see also Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 718 (1981) (concluding that it is not within the judicial function and competence to question whether a party is correctly understanding his religious doctrine because “[c]ourts are not arbiters of scriptural interpretation”). As such, Legatus has standing to move for a preliminary injunction under the RFRA.
B. Likelihood of Success on the Merits The RFRA states: “Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1.
1. Substantial Burden Catholicism teaches that “life begins at conception and that abortion, sterilization, and contraception are contrary to divine law.” (Pg ID 927.) Legatus argues that the HRSA Mandate imposes a substantial burden on its religious exercise “by forcing Legatus to do precisely what [its] religion forbids: impermissibly facilitate access to abortion-inducing products, contraception, sterilization, and related counseling.” (Pg ID 852.) The Supreme Court has held that “putting substantial pressure on an adherent to modify his behavior and to violate his beliefs” substantially burdens a person’s exercise
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of religion. Thomas, 450 U.S. at 718. As noted earlier, “[i]t is not within the judicial function and judicial competence to inquire” whether a party is correctly understanding his religious doctrine as “[c]ourts are not arbiters of scriptural interpretation.” Id. at 716. Accordingly, courts often simply assume that a law substantially burdens a person’s exercise of religion when that person so claims. See, e.g., United States v. Lee, 455 U.S. 252, 257 (1982) (“We therefore accept appellee’s contention that both payment and receipt of social security benefits is forbidden by the Amish faith.”); May v. Baldwin, 109 F.3d 557, 563 (9th Cir. 1997) (“[W]e will assume that undoing May’s dreadlocks imposes a substantial burden on his exercise of Rastafarianism.”); Hamilton v. Schriro, 74 F.3d 1545, 1552 (8th Cir. 1996) (“[W]e assume that the regulations and policies at issue in the present case substantially burden Hamilton’s exercise of his religion.”). In the ACA context, the Tenth and Seventh Circuits have reached the same conclusion. See Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1137 (10th Cir. 2013) (en banc), cert. granted, 2013 WL 5297798 (Nov. 26, 2013) (“Our only task is to determine whether the claimant’s belief is sincere, and if so, whether the government has applied substantial pressure on the claimant to violate that belief.”); Korte v. Sebelius, 735 F.3d 654, 683 (7th Cir. 2013) (“[T]he substantial-burden inquiry evaluates the coercive effect of the governmental pressure on the adherent’s religious practice and steers well clear of deciding religious questions.”). But see, e.g., Conestoga Wood Specialities Corp. v. Sebelius, 917 F. Supp. 2d 394, 413 (E.D. Pa. 2013) (“[W]e reject the notion that a plaintiff shows a burden to be substantial simply by claiming that it is.”).
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The Government argues that the regulations do not impose a substantial burden on Legatus because, as an “eligible organization,” Legatus is “not required to contract, arrange, pay, or refer for contraceptive coverage; however, plan participants and beneficiaries . . . will still benefit from separate payments for contraceptive services without cost sharing.” (AR at 2.) Under the accommodation, as the Government characterizes it, Legatus is required to simply fill out a form to self-certify verifying that it is as an “eligible organization.” The Government argues that Plaintiff would have had to fill out similar paperwork in the absence of the regulations. It is true that, “[e]ven prior to the proposed regulations, because contraceptive benefits are typically in standard product designs, many eligible organizations directed their issuers and [TPAs] not to make payments for claims for medical services to which they object on religious ground.” (AR at 19.) The Plaintiffs in Zubik, 2013 WL 6118696, at *25, used an analogy to explain why this argument misses the mark. If a neighbor asks to borrow a knife to cut something on the barbecue grill, the request is easily granted. But the next day when the same neighbor requests a knife to commit a crime, the request must be refused. “It is the reason the neighbor requests the knife which makes it impossible for the lender to provide it on the second day.” Id. Previously, when an employer like Legatus completed paperwork indicating that it would not be providing contraceptive services to its employees, the reason the documentation was used was irrelevant to Legatus. “Now, under the ‘accommodation,’ the reason the documentation is required is so that contraceptive products, services, and counseling can be provided in direct contravention of [Legatus’s] sincerely-held religious beliefs. The Government is asking
16

[Legatus] for documentation for what [Legatus] sincerely believe[s] is an immoral purpose, and thus, they cannot provide it.” Id; see also Roman Catholic Archdiocese of N.Y., No. 1:12-cv-02542, at *26 (“[T]he self-certification would . . . transform a voluntary act that plaintiffs believe to be consistent with their religious beliefs into a compelled act that they believe forbidden.”).
Accordingly, the court accepts the assertion, and finds that Legatus will likely show at trial that the HRSA Mandate, even with the religious accommodation, substantially burdens the observance of the tenets of Catholicism.
2. Compelling Government Interest The Government may substantially burden a person’s exercise of religion “only if it demonstrates that application of the burden to the person is in furtherance of a compelling governmental interest.” 42 U.S.C. § 2000bb-1(b)(1). The Supreme Court has described compelling interests as those “of the highest order,” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993); “only those interests of the highest order and those not otherwise served,” Wisconsin v. Yoder, 406 U.S. 205, 215 (1972); “an overriding governmental interest,” Lee, 455 U.S. at 258; and “the gravest abuses, endangering paramount interests,” Thomas v. Collins, 323 U.S. 516, 530 (1945) (discussing the freedoms of speech and assembly). The theme that emerges is the identification of “overriding,” “paramount” governmental interests of the very “highest order.” Interests of a lesser magnitude, and interests that are not paramount, including those that are otherwise served, cannot be considered “compelling.”
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The Government advances two interests it argues as compelling that the HRSA Mandate aims to further. First, the Government has an interest in promoting public health generally. Courts have occasionally assumed, sometimes without deciding, that the improvement of public health is, at least in some instances, a compelling interest. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 310 (1978) (“It may be assumed that in some situations a State’s interest in facilitating the health care of its citizens is sufficiently compelling to support the use of a suspect classification.”); Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487, 498 (10th Cir.1998); (citing Bakke to conclude that “public health is a compelling government interest”); Mead v. Holder, 766 F. Supp. 2d 16, 43 (D.D.C. 2011) (“The Government clearly has a compelling interest in safeguarding the public health by regulating the health care and insurance markets.”); Dickerson v. Stuart, 877 F. Supp. 1556, 1559 (M.D. Fla. 1995) (“The State of Florida has a compelling interest in the health of expectant mothers and the safe delivery of newborn babies.”). But see Gilardi, 733 F.3d at 1221 (“[E]ven giving the government the benefit of the doubt, the health concerns underpinning the mandate can be variously described as legitimate, substantial, perhaps even important, but it does not rank as compelling, and that makes all the difference”).
Here, the Government argues that one benefit of the preventive services coverage is that “individuals will experience improved health as a result of reduced transmission, prevention or delayed onset, and earlier treatment of disease.” (AR at 233.) Specifically, as this benefit relates to FDA-approved methods of contraception, the Government explains that “[b]y expanding coverage and eliminating cost sharing for
18

recommended preventive services, [the regulations are] expected to increase access to and utilization of these services, which are not used at optimal levels today.” (AR at 233.) FDA-approved contraceptive services are integral to these predicted health outcomes, the government argues, as unintended pregnancies may delay “entry into prenatal care,” prolong “behaviors that present risks for the developing fetus,” and cause “depression, anxiety, or other conditions.” (AR at 401.) However, “research is limited” for some outcomes of unintended pregnancies. (Id.) In addition, the Government argues, contraceptive coverage mitigates against “the increased risk of adverse pregnancy outcomes for pregnancies that are too closely spaced” and “have medical benefits for women who are contraindicated for pregnancy.” (AR at 401–02.)
The Government’s second interest is a compelling interest in “gender equality.” (Pg ID 990.) Specifically, the Government says this means “assuring that women have equal access to health care services.” (Pg ID 992). The Government argues that providing cost-free access to pregnancy prevention services, devices, and care eliminates gender-based disparity in health care costs. The federal register states that “prior to the implementation of the preventive services coverage provision, women of childbearing age spent 68 percent more on out-of-pocket health care costs than men.”6 (AR at 19.) The Government argues that these costs result in women foregoing
6 The record fails to support the statement that 68 percent greater out of pocket spending was due to the absence of “the preventive services coverage provision,” only that it was observed to have occurred earlier in time to the Government’s implementation of the provision. It would seem that a greater demand for medical services generally by women, compared to men, could account for such disparities.
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preventive care, which places them at a disadvantage in the workforce compared to men.
The Government argues that availability of oral contraception may have played a role in increasing the presence of women in the workforce, bringing them into more direct economic competition with men, and eventually improving women’s wages. Martha J. Bailey et al., The Opt-In Revolution? Contraception and the Gender Gap in Wages, 4 Am. Econ. J.: Applied Econ. 225 (2012). The Supreme Court has echoed this sentiment: “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 835 (1992)7. According to some researchers, the increase of female enrollment in graduate programs such as law, medical, and dental schools is causally related to the availability of oral contraception. Claudia Goldin & Lawrence F. Katz, The Power of the Pill: Oral Contraceptives and Women’s Career and Marriage Decisions, 110 J. of Pol. Econ. 730 (2002).
Assuming, arguendo, that the Government could prove that the HRSA Mandate promotes at least one, if not both, of these interests, and that they are compelling, the Government is also required 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 v. O Centro
7 However, as the District of Columbia Circuit pointed out in Gilardi, “[t]ime and again, the government’s interest in [abortion] cases has been deemed legitimate and substantial . . . .[B]ut it has never been compelling.” Gilardi, 733 F.3d at 1221; see also Casey, 505 U.S. at 846; Gonzales v. Carhart, 550 U.S. 124, 145 (2007).
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Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430–31 (2006) (upholding a preliminary injunction that enjoined the government’s enforcement of the Controlled Substances Act (CSA) to allow a Brazilian religious sect to ceremonially use hallucinogenic tea because the government did not meet its burden of demonstrating a compelling interest to enforce the Act on the sect). The court must look “beyond broadly formulated interests justifying the general applicability of government mandates and scrutinize[] the asserted harm of granting specific exemptions to particular religious claimants.” Id. at 431; see also Yoder, 406 U.S. at 236 (“[I]t was incumbent on the State to show with more particularity how its admittedly strong interest in compulsory education would be adversely affected by granting an exemption to the Amish.”). To meet its burden, the Government must “offer[ ] evidence that granting the requested religious accommodations would seriously compromise its ability to administer” the HRSA Mandate. O Centro, 546 U.S. at 435. It has not, and it cannot.
“[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, 508 U.S. at 547.
It is not disputed that the HRSA Mandate exempts millions of Americans through grandfathering and the “religious employer” exemption and does not apply at all to employers with less than fifty full-time employees who choose not to provide their employees health care. According to U.S. Census Bureau data from 2010, firms with fewer than fifty workers employ 31.5 million Americans, or approximately twenty-eight
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percent of all American workers.8 See Statistics of U.S. Businesses: U.S., NAICS Sectors, Small Employment Sizes, U.S. Census Bureau, http:// www.census.gov/ econ/ susb/ (last visited December 18, 2013). With tens of millions of people untouched, the Government has undermined its arguments that the HRSA Mandate promotes any compelling government interest. Conestoga Wood, 724 F.3d at 414 (Jordan, J., dissenting) (“[The mandate] cannot legitimately be said to vindicate a compelling governmental interest because the government has already exempted from its reach grandfathered plans, employers with under 50 employees, and what it defines as ‘religious employers’ thus voluntarily allowing millions upon millions of people—by some estimates 190 million—to be covered by insurance plans that do not satisfy the supposedly vital interest of providing the public with free contraceptives.”); Hobby Lobby, 723 F.3d at 1144 (concluding that the “exemption for the millions of individuals” from the HRSA Mandate undermines the governments alleged compelling interests); Korte, 735 F.3d at 686 (holding that the ACA’s exemptions meant that the Government could not pass RFRA’s compelling interest test); Geneva Coll. v. Sebelius, No. 2:12-cv00207, 2013 WL 3071481, at *10 (W.D. Pa. June 18, 2013) (“In light of the myriad exemptions to the mandate’s requirements already granted, the requirement is woefully underinclusive and therefore does not serve a compelling government interest.” (internal quotation marks omitted)); Newland v. Sebelius, 881 F. Supp. 2d 1287, 1297–98 (D. Colo. 2012) (“The government has exempted over 190 million health plan participants
8 It cannot easily be determined how many of these workers are full-time, because the Census defined employment as “full and part-time employees.” See Statistics of U.S. Businesses: Definitions, U.S. Census Bureau, http:// www.census.gov/ econ/ susb/ definitions.html (last visited December 18, 2013) (emphasis added).
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and beneficiaries from the preventive care coverage mandate; this massive exemption completely undermines any compelling interest in applying the preventive care coverage mandate to Plaintiffs.”); Tyndale House Publishers, Inc. v. Sebelius, 904 F. Supp. 2d 106, 128 (D.D.C. 2012) (“Indeed, the 191 million employees excluded from the contraceptive coverage mandate include those covered by grandfathered plans alone.”); Roman Catholic Archdiocese of N.Y., No. 1:12-cv-02542, at *31 (“Tens of millions of people are exempt from the Mandate . . . .[M]illions of women thus will not receive contraceptive coverage without cost-sharing through the Mandate. Having granted so many exemptions already, the Government cannot show a compelling interest in denying one to these plaintiffs.”).9
Further, Legatus argues that expanding the “religious employer” exemption to include Legatus would not result in an appreciable harm to the Government’s compelling interests. The Government responds that there is a “rational distinction between [the narrow “religious employer” exemption] and the expansion Legatus seeks.” (Pg ID 993.) Specifically, “houses of worship and their integrated auxiliaries that object to contraceptive coverage on religious grounds are more likely than other employers . . . to employ people of the same faith who share the same objection, and who would therefore be less likely than other people to use contraceptive services even
9 Previously, with respect to grandfathering alone, this court stated that “gradually implementing the ACA’s health care provisions, instead of enforcing the entire law against all plans at the same time, does not appear to be indicative of how important the Government considers the interests of regulating public health and furthering gender equality.” (Pg ID 557–58.) Over a year later, with intervening events having made more clear the implication of exemptions, and with the insight of other jurists across the country, the court has reconsidered its view.
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if such services were covered under the plan.” (Id.) But regardless, “[s]ince the government grants so many exceptions already, it can hardly argue against exempting these plaintiffs.” Korte, 735 F.3d at 686.
“Context matters” when applying the compelling interest test. Grutter v. Bollinger, 539 U.S. 306, 327 (2004). The court has no doubt that every level of Government may claim an interest in promoting public health and gender equality at least as a general matter. But in this context, given the multiple tens of millions of Americans that are simply exempt from the HRSA mandate, the court is dubious that the Government would be able to prove a compelling interest in promoting the specific interests asserted in this litigation.
3. Least Restrictive Means If the Government were to meet the compelling interest test, it would then be required to prove that it has chosen “the least restrictive means” of furthering that interest. 42 U.S.C. § 20000bb-1(b)(2). What constitutes “the least restrictive means” and how it is determined is subject to debate. The Supreme Court has held that statutes fail the least restrictive means test when they are “overbroad” or “underinclusive.” See Lukumi, 508 U.S. at 546. As discussed in the previous section, the sheer number of individuals exempt from the HRSA Mandate tends to demonstrate underinclusiveness. The Sixth Circuit describes the least restrictive means test as “the extent to which accommodation of the [plaintiff] would impede the state’s objectives,” and explains that “[w]hether the state has made this showing depends on a comparison of the cost to the
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government of altering its activity to allow the religious practice to continue unimpeded
versus the cost to the religious interest imposed by the government activity.” S. Ridge
Baptist Church v. Indus. Comm’n, 911 F.2d 1203, 1206 (6th Cir. 1990). Granting
Legatus an exemption would impede only marginally the Government’s interests.
However, it is unclear whether the “cost” to the Government of being required to honor
an exemption for Legatus is greater than the spiritual “cost” to Legatus were the HRSA
Mandate to be fully enforced. The cost to Legatus appears to be provably substantial.
Zubik, 2013 WL 6118696, at *25 (referring to the “cost of the loss of [Plaintiffs’] rights to
freely exercise their religion” as “incalculable”). The cost to the Government appears
provably small, especially given the myriad of exemptions to the ACA already in place.
The Tenth Circuit has extensively discussed the inherent difficulty of the least
restrictive means test:
[T]he notion that the government must prove that it has used the l“east restrictive means,” or that “no alternative forms of regulation” would suffice to serve its interests, is an odd creat ure. On its face, it requires the government to prove a negative—thatno matter how long one were to sit and think about the question, one could never come up with an altern ative regulation that adequately serves the compelling interest while imposing a lesser burden on religion. This is a formidable task. . . .[I]n the abstract, such a thing can never be proven conclusively; the ingenuity of the human mind, especially if freed from the practical constraints of policymaking and politics, is infinite.
Thus, a number of courts that hav e considered the least restrictive means question . . . have held t hat the government should not be required “to refute ev ery conceivable option in order to satisfy the least restrictive means prong of RFRA.” Hamilton v. Schriro, 74 F.3d 1545, 1556 (8t h Cir. 1996) (characterizing such a requirement as a “herculean burden”); accord Fowler v. Crawford, 534 F.3d 931, 940 (8th Cir. 2008) (considering the identical language of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”)); Spratt v. R.I. Dep’t of Corr., 482 F.3d 33, 41 n.11 (1st Cir. 2007) (RLUIPA claim); May v. Baldwin, 109 F.3d 557, 563 (9th Cir. 1997) (RFRA claim). Not requiring the gover nment to do t he impossible—refute
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each and ever y conceivable alternat ive regulation scheme—ensures that scrutiny of federal laws under RFRA is not “strict in theory, but fatal in fact.” Thus the government’s burden is t wo-fold: it must support its choice of regulation, and it must refute the alternative schemes offered by the challenger, but it must doboth through the evidence presented in the record.
United States v. Wilgus, 638 F.3d 1274, 1288–89 (10th Cir. 2011) (internal citations
omitted). The Wilgus test effectively exempts the Government from being required to
prove what the statute requires, i.e., that it has employed “the least restrictive means of
furthering [its] compelling governmental interest,” 42 U.S.C. § 2000bb-1, and casts the
burden on a Plaintiff to offer “alternative schemes” which then are subject to being
refuted, with evidence, by the Government. Neither the Supreme Court nor the Sixth
Circuit has adopted Wilgus and this court does not independently adopt it. Legatus
nonetheless proposes a list of alternatives to the religious accommodation available to
“eligible organizations,” and an examination generally consistent with a Wilgus paradigm
may be helpful. Legatus offers that:
the government could also (I) offer grant s to entities that already provide contraceptive services at free or s ubsidized rates and/or work with these entities to expand delivery of these serv ices; (ii) directly offer insur ance coverage for contraceptive services; (iii)offer tax deductions or credits for the purchase of contraceptives, reimburse citizens who pay to use contraceptives, or (iv) provide in centives for pharmaceutical companies and/or drug stores to provide such products free of charge or at reduces rates.
(Id.)
The Government expends little energy to counter each of these proposals, and
instead points to the administrative record. In relevant part the record begins:
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some commenters asserted that the contraceptive coverage requirement is not the least restrictive means of advancing these compelling interests, and proposed various alternatives to these regulations. All of these proposals were considered, and it was determined that they were not feasible and/or would not advance the government’s compelling interests as effectively as the mechanisms established in these final regulations and the preventive services coverage regulations more generally.
(AR at 20.) However, this court agrees with the Zubik court’s conclusion that “[g]eater
efficacy does not equate to the least restrictive means.” Zubik, 2013 WL 6118696, at
*32. Not only does it “not equate,” but efficacy seems far more likely correlated with the
opposite: intrusiveness. See Mincey v. Arizona, 437 U.S. 385, 393 (1978) (“[T]he mere
fact that law enforcement may be made more efficient may never by itself justify
disregard of the Fourth Amendment.”) (internal citations omitted).
The record goes on to collectively address alternatives suggested during the
comment period that are similar to Legatus’s proposals (i), (ii), and (iv). The federal
register states, “[f]or example some commenters suggested that the government could
provide contraceptive services to all women free of charge (through Medicaid or another program) [similar to Legatus’s proposal (ii)]10, establish a government funded health
benefits program for contraceptive services [similar to Legatus’s proposal (i)], or force
drug and device manufacturers to provide contraceptive drugs and devices to women
for free [similar to Legatus’s proposal (iv)].” (AR at 20.) The record offers several
unsatisfactory reasons in attempt to explain why one of these proposals would not be
10 In its earlier opinion, the court noted that “Plaintiffs’ alternative prospect of establishing a separate agency whose purpose would be to provide contraception to women raises a host of administrative and logistical problems . . . and does not appear practical.” (Pg ID 564.) The court continues to agree with that conclusion but notes that it is not fatal to Legatus’s argument that other, less restrictive alternatives may exist.
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less restrictive. First, “[t]he Departments lack the statutory authority and funding to implement these proposals.” (AR at 20.) Lacking the statutory authority is immaterial to the least restrictive means inquiry. See Roman Catholic Archdiocese of N.Y., No. 1:12cv-02542, at *35 (“If defendants lack the required statutory authority, Congress may pass appropriate legislation.”) And, funding cannot truly be the issue given the breadth of the Affordable Care Act and the health care market it seeks to regulate. See Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2609 (2012) (“By any measure, [the health care] market is immense. Collectively, Americans spent $2.5 trillion on health care in 2009, accounting for 17.6% of our Nation’s economy. Within the next decade, it is anticipated, spending on health care will nearly double.”). Next, the federal register states that, as Congress did not adopt a single-payer system financed through taxes, but instead utilized the existing employer-based system of health care, these alternatives would be incompatible with the ACA’s fundamental statutory scheme. (Id.) But the Government has nearly unfettered free reign in legislating to achieve its goals. “It may be that the government’s political interests are better satisfied by [the accomodation] than by trying to persuade voters to support other means to fund free contraceptives, but political expediency is not synonymous with ‘least restrictive means.’” Conestoga Wood, 724 F.3d at 415; see also Nat’l Fed’n of Indep. Bus., 132 S. Ct. 2566 at 2612 (“Congress could have taken over the health-insurance market by establishing a tax-and-spend federal program like Social Security . . . .[I]nstead of going this route, Congress enacted the ACA.”). Finally, the federal register states, “[i]mposing additional barriers to women receiving the intended coverage (and its attendant benefits), by requiring them to take steps to learn about, and to sign up for, a new health
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benefit, would make that coverage accessible to fewer women.” (Id.) Yet the Government does not identify a single “step” or additional “barrier” that these proposals would introduce.
The record also addresses Legatus’s proposal (iii), that the Government could “offer tax deductions or credits for the purchase of contraceptives, [or] reimburse citizens who pay to use contraceptives.” The federal register states, [f]or another example, some commenters suggested that the government should establish tax incentives for women to use contraceptive services.” (AR at 20.) The federal register explains, “[r]eliance only on tax incentives would . . . depart from the existing employerbased system of health coverage, would require women to pay out of pocket for their care in the first instance, and would not benefit women who do not have sufficient income to be required to file a tax return.” (Id.) But this explanation, like those above, is unconvincing. In particular, with respect to women who do not file tax returns because they do not earn enough money, Defendant Kathleen Sebelius herself has stated that contraceptive services are readily available “at sites such as community health centers, public clinics, and hospitals with income-based support.” (Pg ID 856.) In fact, community health centers, public clinics, and hospitals with income-based support cater to low-income women. For example, community health centers typically implement a sliding scale fee program, in which a patient’s fee is determined by her annual income, household size, and desired treatment. See, e.g., Sliding Scale Services, Mt. Baker Planned Parenthood, http:// www.plannedparenthood.org/ mbpp/ files/ mt-baker/ Family_Planning_Sliding_Scale_Service.pdf (last visited Nov. 6, 2012).
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Although the Government has cast doubt on some of its proposals, Legatus’s proposals (i), (iii), and (iv) suggest that “there are many ways to increase access to free contraception without doing damage to the religious-liberty rights of [Legatus].” Korte, 735 F.3d at 686 (7th Cir. 2013); see also Gilardi, 733 F.3d at 1222 (“[T]here are viable alternatives . . . that would achieve the substantive goals of the mandate while being sufficiently accommodative of religious exercise.”). If the Government “has open to it a less drastic way of satisfying its legitimate interests, it may not choose a [regulatory] scheme that broadly stifles the exercise of fundamental personal liberties.” Anderson v. Celebrezze, 460 U.S. 780, 806 (1983) (internal quotation marks omitted).
Analyzing the least restrictive means under the Supreme Court, Sixth Circuit, and Tenth Circuit tests, it appears to the court possible, but unlikely, that the Government could meet its burden at trial.
C. Irreparable Harm to Legatus Violation of a First Amendment right in itself constitutes irreparable harm. Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”). When First Amendment freedoms are at risk, the irreparable harm factor “merges” with the likelihood of success, such that if the plaintiff shows he is likely to succeed on the merits, he has simultaneously proven he will suffer an irreparable harm. See McNeilly v. Land, 684 F.3d 611, 620–21 (6th Cir. 2012) (“Once a probability of success on the merits was shown, irreparable harm followed . . . .[B]ecause [the plaintiff] does not have a likelihood of success on the merits, . . . his argument that he is irreparably harmed by
30

the deprivation of his First Amendment rights also fails.”); Reno, 154 F.3d at 288 (“Thus, to the extent that [the plaintiff] can establish a substantial likelihood of success on the merits of its First Amendment claim, it also has established the possibility of irreparable harm as a result of the deprivation of the claimed free speech rights.”).
The possibility that the Government will be able to convince the court of either the compelling nature of the interests it seeks to advance, or that the means it has chosen are the least restrictive, is negatively correlated with Legatus’s likelihood of success on the merits. As the court concluded in the preceding section, the Government has made some showing, but not strongly so, of advancing a “compelling” interest by the “least restrictive means.” The potential for harm to Legatus exists, and with the showing Legatus has made thus far of being able to convincingly prove its case at trial, it is properly characterized as irreparable.
D. Impact on Public Interest “The public as a whole has a significant interest in ensuring equal protection of the laws and protection of First Amendment liberties.” Jones, 569 F.3d at 278. Similar to the irreparable harm analysis, therefore, “the determination of where the public interest lies also is dependent on a determination of the likelihood of success on the merits of the First Amendment challenge because it is always in the public interest to prevent the violation of a party’s constitutional rights.” Connection Distributing Co., 154 F.3d at 288; see also McNeilly, 684 F.3d at 621 (“Given the failure to show a substantial likelihood of success on the merits of [the plaintiff’s] claim that the contribution limits are unconstitutional, the district court’s conclusion that ‘the [adverse] effect on the public
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and the public interest’ from enjoining the enforcement of the statute . . . ‘would be very significant’ is also proper.”).
A preliminary injunction would serve the public interest to the extent that each party has made some showing of a likelihood of success on the merits, as described in section B above.
E. Balancing of Harm
Finally, the court must balance the harm to Legatus if the injunction were denied with the harm to the Government if the injunction is granted. The purpose of the balance of harms test is:
to underscore the flexibility which traditionally has characterized the law of equity. It permits the district court, in its discretion, to grant a preliminary injunction even where the plaintiff fails to show a strong or substantial probability of ultimate success on the merits of his claim , but where he at least shows serious questions going to the merits and irreparable harm which decidedly outweighs any potential harm to the defendant if the injunction is issued.
Jones, 569 F.3d at 277 (quoting Friendship Materials, Inc. v. Mich. Brick, Inc., 679 F.2d 100, 104 (6th Cir. 1982)) (emphasis added).
The fact that a ruling on the merits of this case will unquestionably occur after January 1, 2014 is significant. Denying Legatus a preliminary injunction at this time will effectively grant the Government a default success on the merits—at least until Legatus can change its self-certification status and thereby exclude contraception to its employees if Legatus were to succeed at trial. As already discussed, Legatus has shown some likelihood of success on the merits of those elements it must prove. The
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Government is in a weaker position with respect to proof of compelling interest and least restrictive means, about both of which there remain serious unanswered questions. However, the court reiterates that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod, 427 U.S. at 373. The Government will suffer some, but comparatively minimal harm if the injunction is granted. Reno, 154 F.3d at 288 (noting that “the government presumably would be substantially harmed if enforcement of a constitutional law . . . were enjoined”). And ultimately, “[t]he more the balance of harms tips in favor of an injunction, the lighter the burden on the party seeking the injunction to demonstrate that it will ultimately prevail.” Korte v. Sebelius, 528 F. App’x 583, 586 (7th Cir. 2012); see also Doe v. Sundquist, 106 F.3d 702, 707 (6th Cir.1997) (“We are mindful that even when a plaintiff’s probability of success on the merits of a claim is not very high, a preliminary injunction may be appropriate if the plaintiff is in serious danger of irreparable harm absent an injunction. Thus we have observed that the degree of likelihood of success that need be shown to support a preliminary injunction varies inversely with the degree of injury the plaintiff might suffer.”).
The harm in delaying the implementation of a regulation that may later be deemed constitutional must yield to the risk presented here of substantially infringing the sincere exercise of religious beliefs. The court noted in its October 31, 2011, order denying Legatus injunctive relief, that it was “doubtful” at the time that the Government would eventually “act . . . in a way inimical to the rights Legatus seeks to protect.” (Pg ID
33

550.) The court appears to have been unduly hopeful. The balance of harms tips strongly in favor of Legatus. A preliminary injunction is warranted.
IV. CONCLUSION IT IS ORDERED that Legatus’s Motion for Preliminary Injunction [Dkt. # 68] is GRANTED. An order of injunction will issue separately.

Dated: December 20, 2013

s/Robert H. Cleland ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE

I hereby certify that a copy of the foregoing document was mailed to counsel of record on this date, December 20, 2013, by electronic and/or ordinary mail.
s/Lisa Wagner Case Manager and Deputy Clerk (313) 234-5522

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34

 
 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LEGATUS, et al., Plaintiffs,
v. SYLVIA BURWELL, et al.,
Defendants. ___________________________________/

Case No. 12-12061

INJUNCTION AND JUDGMENT AS TO PLAINTIFFS WEINGARTZ SUPPLY COMPANY AND DANIEL WEINGARTZ1
In light of the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), and defendants’ consent, it is hereby
ORDERED that defendants, their employees, agents, and successors in office are enjoined
(a) from enforcing (1) the “June 30, 2014 Contraceptive Coverage Requirement,” defined here to include those provisions of federal law in existence on June 30, 2014, when the Supreme Court decided Hobby Lobby, that require Plaintiff Weingartz Supply Company to provide its employees with health coverage for contraceptive methods, sterilization procedures, and related patient education and counseling to which plaintiffs object on religious grounds,

1 This Injunction and Judgment relates to Plaintiffs Weingartz Supply Company’s and Daniel Weingartz’s claims only and does not affect Plaintiff Legatus’ claims in any way.

e.g., 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)(1)(iv); and (2) any penalties, fines, or assessments for noncompliance with the June 30, 2014 Contraceptive Coverage Requirement, including those found in 26 U.S.C. § 4980D, and 29 U.S.C. §§ 1132 and 1185d; and (b) from taking any other actions based on noncompliance with the June 30, 2014 Contraceptive Coverage Requirement against Plaintiff Weingartz Supply Company, its employee health plan(s), the group health coverage provided in connection with such plan(s), and/or Weingartz Supply Company’s health insurance issuers and/or third-party administrators with respect to Weingartz Supply Company’s health plan(s); and it is further ORDERED that judgment is entered in favor of Plaintiffs Weingartz Supply Company and Daniel Weingartz and against defendants on Plaintiffs Weingartz Supply Company and Daniel Weingartz’s claim under the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et seq.; and it is further ORDERED that all other claims brought by Plaintiffs Weingartz Supply Company and Daniel Weingartz against Defendants are DISMISSED; and it is further ORDERED that the Parties will meet and confer to reach agreement on attorneys’ fees and costs with respect to Plaintiffs Weingartz Supply Company and Daniel Weingartz’s claims. The Parties will file a joint status report, including a recommendation for further proceedings, by no later than February 9, 2015. If there is no resolution of the attorneys’ fees and costs matter, Plaintiffs Weingartz Supply Company and Daniel Weingartz may file a motion for attorneys’ fees and costs within
2

thirty days of February 9, 2015, pursuant to Federal Rule of Civil Procedure 54; and it is further
ORDERED that this Injunction and Judgment does not apply with respect to any changes in statute or regulation that are enacted or promulgated after this date, and nothing herein prevents plaintiffs from filing a new civil action to challenge any such future changes.
_s/Robert H. Cleland_____________________ ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE Dated: December 31, 2014 I hereby certify that a copy of the foregoing document was mailed to counsel of record on this date, December 31, 2014, by electronic and/or ordinary mail. _s/Lisa Wagner_________________________ Case Manager and Deputy Clerk (313) 234-5522
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3

 
 Case: 2:12-cv-12061 As of: 04/06/2018 05:06 PM EDT 1 of 10
CLOSED,APPEAL,REOPENED,STAYED
U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:12−cv−12061−RHC−MJH

Weingartz Supply Company et al v. Sebelius et al

Assigned to: District Judge Robert H. Cleland

Referred to: Magistrate Judge Michael J. Hluchaniuk

Case in other court:

U.S. Court of Appeals − Sixth

Circuit, 13−01092

Date Filed: 05/07/2012 Date Terminated: 12/31/2014 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

U.S. Court of Appeals − Sixth Circuit, 14−01183

Cause: 42:1983 Civil Rights Act

Plaintiff

Weingartz Supply Company

represented by Richard Thompson Thomas More Law Center 24 Frank Lloyd Wright Drive Box 393 Ann Arbor, MI 48106 734−827−2001 Fax: 734−930−7160 Email: rthompson@thomasmore.org ATTORNEY TO BE NOTICED

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

Plaintiff Legatus

represented by Richard Thompson (See above for address) ATTORNEY TO BE NOTICED

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

Plaintiff Daniel Weingartz

represented by Richard Thompson (See above for address) ATTORNEY TO BE NOTICED

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

V. Defendant Kathleen Sebelius

represented by Ethan P. Davis U.S. Department of Justice − Civil Division 20 Massachusetts Avenue, NW Suite 6109

Case: 2:12-cv-12061 As of: 04/06/2018 05:06 PM EDT 2 of 10

Washington, DC 20530 202−514−9242 TERMINATED: 09/17/2013 ATTORNEY TO BE NOTICED

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

Defendant
United States Department of Health and Human Services

represented by Ethan P. Davis (See above for address) TERMINATED: 09/17/2013 ATTORNEY TO BE NOTICED

Michelle R. Bennett (See above for address) ATTORNEY TO BE NOTICED

Defendant Secretary of Labor Hilda L Solis

represented by Ethan P. Davis (See above for address) TERMINATED: 09/17/2013 ATTORNEY TO BE NOTICED

Michelle R. Bennett (See above for address) ATTORNEY TO BE NOTICED

Defendant United States Department of Labor

represented by Ethan P. Davis (See above for address) TERMINATED: 09/17/2013 ATTORNEY TO BE NOTICED

Michelle R. Bennett (See above for address) ATTORNEY TO BE NOTICED

Defendant Timothy Geithner

represented by Ethan P. Davis (See above for address) TERMINATED: 09/17/2013 ATTORNEY TO BE NOTICED

Michelle R. Bennett (See above for address) ATTORNEY TO BE NOTICED

Defendant United States Department of Treasury

represented by Ethan P. Davis (See above for address) TERMINATED: 09/17/2013 ATTORNEY TO BE NOTICED

Michelle R. Bennett

Case: 2:12-cv-12061 As of: 04/06/2018 05:06 PM EDT 3 of 10

(See above for address) ATTORNEY TO BE NOTICED

Amicus
American Civil Liberties Union 125 Broad Street 18th Floor New York, NY 10004 212−549−2633

represented by Brigitte A. Amiri American Civil Liberties Union 125 Broad Street 18th Floor New York, NY 10004−2400 212−519−7897 Fax: 212−549−2652 Email: bamiri@aclu.org ATTORNEY TO BE NOTICED

Jennifer Lee American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 212−549−2601 Fax: 212−549−2651 Email: jlee@aclu.org ATTORNEY TO BE NOTICED

Michael J. Steinberg American Civil Liberties Union Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 313−578−6814 Email: msteinberg@aclumich.org ATTORNEY TO BE NOTICED

Sarah L. Mehta American Civil Liberties Union of Michigan 2966 Woodward Ave Detroit, MI 48201 313−578−6823 Fax: 313−578−6811 Email: smehta@aclumich.org (Inactive) ATTORNEY TO BE NOTICED

Amicus Bioethics Defense Fund

represented by Robert C. Davis Davis, Listman, Brennan Towne Square Building 10 S. Main Street Suite 401 Mt. Clemens, MI 48043 586−469−4300 Fax: 586−469−4303 Email: rdavis@dbsattorneys.com ATTORNEY TO BE NOTICED

Amicus Life Legal Defense Foundation

represented by Robert C. Davis (See above for address) ATTORNEY TO BE NOTICED

Amicus Attorney General Bill Schuette

represented by

Case: 2:12-cv-12061 As of: 04/06/2018 05:06 PM EDT 4 of 10
B. Eric Restuccia Michigan Department of Attorney General P.O. Box 30217 Lansing, MI 48909 517−373−4875 Email: restucciae@michigan.gov ATTORNEY TO BE NOTICED

Date Filed 05/07/2012
05/08/2012
05/08/2012 05/08/2012 05/09/2012 05/09/2012 06/22/2012
06/25/2012
07/11/2012 07/25/2012
07/26/2012 07/27/2012
07/27/2012 07/30/2012

# Docket Text
1 COMPLAINT Legatus et al v. Sebelius et al filed by All Plaintiffs against All Defendants. Plaintiff requests summons issued. Receipt No: 0645−3520228 − Fee: &#036 350. County of 1st Plaintiff: Washtenaw − County Where Action Arose: Washtenaw − County of 1st Defendant: Washington D.C.. [Previously dismissed case: No] [Possible companion case(s): None] (Mersino, Erin) (Entered: 05/07/2012)
A United States Magistrate Judge of this Court is available to conduct all proceedings in this civil action in accordance with 28 U.S.C. 636c and FRCP 73. The Notice, Consent, and Reference of a Civil Action to a Magistrate Judge form is available for download at http://www.mied.uscourts.gov (KKra) (Entered: 05/08/2012)
2 SUMMONS Issued for * All Defendants * (KKra) (Entered: 05/08/2012)
3 SUMMONS Issued for the United States Attorney and the Office of the Attorney General. (KKra) (Entered: 05/08/2012)
4 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by Legatus (Mersino, Erin) (Entered: 05/09/2012)
5 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by Weingartz Supply Company (Mersino, Erin) (Entered: 05/09/2012)
6 CERTIFICATE OF SERVICE by All Plaintiffs Service of Summons and Complaint upon U.S.Attorney General; U.S. Attorneys Office; Kathleen Sebelius and Dept of Health and Human Services; Hilda Solis and Dept of Labor; Timothy Geithner and U.S. Dept of Treasury (Mersino, Erin) (Entered: 06/22/2012)
7 NOTICE of Appearance by Ethan P. Davis on behalf of Timothy Geithner, Kathleen Sebelius, Hilda L Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury. (Davis, Ethan) (Entered: 06/25/2012)
8 STIPULATED ORDER for Extension of Time to Respond to the Complaint, ( Responses due by 8/9/2012) Signed by District Judge Robert H. Cleland. (LWag) (Entered: 07/11/2012)
9 Emergency MOTION for Temporary Restraining Order by All Plaintiffs. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4, # 6 Exhibit Exhibit 5, # 7 Exhibit Exhibit 6) (Mersino, Erin) (Entered: 07/25/2012)
Set Deadlines/Hearings: Telephone Conference set for 7/27/2012 10:30 AM before District Judge Robert H. Cleland THE COURT WILL INITIATE THE CALL (LWag) (Entered: 07/26/2012)
Minute Entry − Telephone Conference held on 7/27/2012, Set Deadlines/Hearings:( Telephone Conference set for 7/27/2012 03:30 PM before District Judge Robert H. Cleland) before District Judge Robert H. Cleland. Disposition: Continued to 7/27/2012 at 3:30 pm (LWag) (Entered: 07/27/2012)
Minute Entry − Telephone Conference held on 7/27/2012 before District Judge Robert H. Cleland. Disposition: Discussion of TRO Motion with parties. Parties agreed to work towards stand−still order and briefing schedule. (LWag) (Entered: 07/27/2012)
10 NOTICE by All Plaintiffs Notice of Additional Citation (Attachments: # 1 Exhibit) (Mersino, Erin) (Entered: 07/30/2012)

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08/07/2012
08/15/2012 08/15/2012
08/16/2012 08/29/2012
08/30/2012 08/30/2012 08/30/2012
09/05/2012 09/06/2012 09/07/2012 09/17/2012
09/17/2012 09/17/2012 09/18/2012
09/18/2012 09/21/2012

11 ORDER Directing Plaintiffs to File Motion for Preliminary Injunction, Setting Briefing Schedule and Hearing., ( Motion for Preliminary Injunction due by 8/15/2012, Responses due by 8/29/2012, Replies due by 9/6/2012, Motion Hearing set for 9/26/2012 10:00 AM before District Judge Robert H. Cleland) Signed by District Judge Robert H. Cleland. (LWag) (Entered: 08/07/2012)
12 STIPULATED ORDER For Extension of Time to Respond to Complaint until after the Court decides the motion for preliminary injunction. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 08/15/2012)
13 MOTION for Preliminary Injunction by All Plaintiffs. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4, # 6 Exhibit Exhibit 5, # 7 Exhibit Exhibit 6, # 8 Exhibit Exhibit 7, # 9 Exhibit Exhibit 8) (Mersino, Erin) (Entered: 08/15/2012)
Set/Reset Deadlines as to 13 MOTION for Preliminary Injunction. Motion Hearing re−set for 9/28/2012 09:30 AM before District Judge Robert H. Cleland (LWag) (Entered: 08/16/2012)
14 RESPONSE to 13 MOTION for Preliminary Injunction filed by Timothy Geithner, Kathleen Sebelius, Hilda L Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury. (Davis, Ethan) (Entered: 08/29/2012)
15 MOTION for Leave to File Amicus Brief by American Civil Liberties Union. (Attachments: # 1 Exhibit A − Proposed Amicus Brief) (Amiri, Brigitte) (Entered: 08/30/2012)
16 NOTICE of Appearance by Brigitte A. Amiri on behalf of American Civil Liberties Union. (Amiri, Brigitte) (Entered: 08/30/2012)
17 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by American Civil Liberties Union identifying Corporate Parent American Civil Liberties Union, Other Affiliate American Civil Liberties Union Fund of Michigan for American Civil Liberties Union. (Amiri, Brigitte) (Entered: 08/30/2012)
18 APPLICATION to File a Reply Brief In Excess of Fifteen Pages by All Plaintiffs. (Mersino, Erin) (Entered: 09/05/2012)
19 REPLY to Response re 13 MOTION for Preliminary Injunction filed by All Plaintiffs. (Mersino, Erin) (Entered: 09/06/2012)
TEXT−ONLY ORDER GRANTING 18 Application to File Excess Pages filed by Weingartz Supply Company, Daniel Weingartz, Legatus. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 09/07/2012)
20 ORDER granting 15 American Civil Liberties Union and the American Civil Liberties Union Fund of Michigan Motion for Leave to File an Amicus Curiae Brief, Brief to be filed by 9/20/2012. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 09/17/2012)
21 ORDER terminating 9 Plaintiff's Emergency Motion for TRO. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 09/17/2012)
22 Amicus Curiae BRIEF by American Civil Liberties Union (Amiri, Brigitte) (Entered: 09/17/2012)
23 NOTICE of Appearance by Michael J. Steinberg on behalf of American Civil Liberties Union. (Steinberg, Michael) Modified on 9/18/2012 (DTyl). [INCORRECT IMAGE UPLOADED; CORRECTED APPEARANCE TO BE RE−FILED] (Entered: 09/18/2012)
24 NOTICE of Appearance by Michael J. Steinberg on behalf of American Civil Liberties Union. (Steinberg, Michael) (Entered: 09/18/2012)
25 NOTICE of Appearance by Sarah L. Mehta on behalf of American Civil Liberties Union. (Mehta, Sarah) (Entered: 09/21/2012)

Case: 2:12-cv-12061 As of: 04/06/2018 05:06 PM EDT 6 of 10

09/24/2012 09/24/2012 09/24/2012 09/24/2012 09/24/2012 09/24/2012 09/26/2012 09/26/2012 09/27/2012 09/28/2012 09/28/2012
10/01/2012 10/02/2012 10/29/2012 10/31/2012
11/05/2012 11/09/2012 11/13/2012 11/19/2012

26 ATTORNEY APPEARANCE: Robert C. Davis appearing on behalf of Bioethics Defense Fund, Life Legal Defense Foundation (Davis, Robert) (Entered: 09/24/2012)
27 MOTION for Leave to File Amicus Brief by Bioethics Defense Fund, Life Legal Defense Foundation. (Davis, Robert) (Entered: 09/24/2012)
28 Amicus Curiae BRIEF by Bioethics Defense Fund, Life Legal Defense Foundation (Davis, Robert) (Entered: 09/24/2012)
29 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by Bioethics Defense Fund (Davis, Robert) (Entered: 09/24/2012)
30 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by Life Legal Defense Foundation (Davis, Robert) (Entered: 09/24/2012)
31 NOTICE of Appearance by Michelle R. Bennett on behalf of All Defendants. (Bennett, Michelle) (Entered: 09/24/2012)
32 ORDER granting 27 Bioethics Defense Fund and the Life Legal Foundation's Motion for Leave to File Amicus Curiae brief. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 09/26/2012)
33 MOTION for Leave to File Amicus Brief by Bill Schuette. (Attachments: # 1 Document Continuation Proposed Amicus Brief) (Restuccia, B.) (Entered: 09/26/2012)
34 ORDER granting 33 Attorney General Bill Schuette's Motion for Leave to File Amicus Curiae Brief. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 09/27/2012)
35 Amicus Curiae BRIEF by Bill Schuette (Restuccia, B.) (Entered: 09/28/2012)
Minute Entry − Motion Hearing held on 9/28/2012 re 13 MOTION for Preliminary Injunction filed by Weingartz Supply Company, Daniel Weingartz, Legatus before District Judge Robert H. Cleland. Disposition: TAKEN UNDER ADVISEMENT(Court Reporter Christin Russell) (LWag) (Entered: 09/28/2012)
36 NOTICE by All Defendants (Attachments: # 1 Exhibit 1) (Davis, Ethan) (Entered: 10/01/2012)
37 NOTICE by All Plaintiffs re 36 Notice (Other) Response to Notice of Supplemental Authority (Mersino, Erin) (Entered: 10/02/2012)
38 NOTICE of Appearance by Richard Thompson on behalf of All Plaintiffs. (Thompson, Richard) (Entered: 10/29/2012)
39 ORDER granting 13 Plaintiff Daniel Weingartz and Weingartz Supply Company's Motion for Preliminary Injunction and Denying without prejudice Plaintiff Legatus's Motion for Preliminary Injunction.. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 10/31/2012)
40 NOTICE by All Defendants (Davis, Ethan) Modified on 11/6/2012 (PMil).[DOCUMENT ENTITLED BRIEF STATEMENT REGARDING STATUS OF RULEMAKING PROCESS] (Entered: 11/05/2012)
41 Notice of E−mail Delivery Failure as to attorney Brigitte A. Amiri. Bounced NEF for 40 Notice (Other). (KCla) (Entered: 11/09/2012)
42 PRELIMINARY INJUNCTION ORDER Signed by District Judge Robert H. Cleland. (LWag) (Entered: 11/13/2012)
43 TRANSCRIPT of Motion Hearing held on 9/28/12. (Court Reporter/Transcriber: Christin E. Russell) (Number of Pages: 87) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 12/10/2012. Redacted Transcript Deadline set for 12/20/2012. Release of Transcript Restriction set for 2/19/2013. Transcript may be viewed at the court public terminal or purchased through

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12/03/2012 12/04/2012
01/07/2013 01/14/2013 01/14/2013 01/15/2013 01/15/2013 01/28/2013 01/29/2013 01/31/2013
01/31/2013
02/04/2013 03/04/2013 04/01/2013 05/06/2013 06/03/2013 06/28/2013 08/01/2013 08/05/2013 08/09/2013

the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Russell, C.) (Entered: 11/19/2012)
44 NOTICE by All Defendants regarding status of rulemaking process (Davis, Ethan) (Entered: 12/03/2012)
45 STIPULATED ORDER for Extension of time to respond to the complaint, ( Responses due by 1/21/2013) Signed by District Judge Robert H. Cleland. (LWag) (Entered: 12/04/2012)
46 NOTICE by All Defendants regarding status of rulemaking process (Davis, Ethan) (Entered: 01/07/2013)
47 NOTICE OF INTERLOCUTORY APPEAL by All Defendants re 42 Preliminary Injunction. Fee Status: No Fee Paid. (Davis, Ethan) (Entered: 01/14/2013)
48 NOTICE OF INTERLOCUTORY APPEAL by Legatus. Receipt No: 0645−3895503 − Fee: $ 455 − Fee Status: Fee Paid. (Mersino, Erin) (Entered: 01/14/2013)
49 Certificate of Service re 47 Notice of Interlocutory Appeal. (TMcg) (Entered: 01/15/2013)
50 Certificate of Service re 48 Notice of Interlocutory Appeal. (TMcg) (Entered: 01/15/2013)
51 Joint MOTION to Stay district court proceedings pending appeal by All Defendants. (Davis, Ethan) (Entered: 01/28/2013)
52 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 1/31/2013 10:00 AM before District Judge Robert H. Cleland (LWag) (Entered: 01/29/2013)
53 ORDER granting 51 Joint Motion to Stay District Court Proceedings and Administratively Closing Case. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 01/31/2013)
Minute Entry − Motion Hearing held on 1/31/2013 re 51 Joint MOTION to Stay district court proceedings pending appeal filed by United States Department of Treasury, Timothy Geithner, Kathleen Sebelius, Hilda L Solis, United States Department of Health and Human Services, United States Department of Labor before District Judge Robert H. Cleland. Disposition: GRANTED(Court Reporter Christin Russell) (LWag) (Entered: 01/31/2013)
54 NOTICE by All Defendants regarding status of rulemaking process (Davis, Ethan) (Entered: 02/04/2013)
55 NOTICE by All Defendants regarding status of rulemaking process (Bennett, Michelle) (Entered: 03/04/2013)
56 NOTICE by All Defendants regarding status of rulemaking process (Bennett, Michelle) (Entered: 04/01/2013)
57 NOTICE by All Defendants regarding status of rulemaking process (Bennett, Michelle) (Entered: 05/06/2013)
58 NOTICE by All Defendants regarding status of rulemaking process (Bennett, Michelle) (Entered: 06/03/2013)
59 NOTICE by All Defendants re status of rulemaking process (Bennett, Michelle) (Entered: 06/28/2013)
60 MOTION to Reopen Case Motion to Remove Stay by Legatus. (Mersino, Erin) (Entered: 08/01/2013)
61 NOTICE by All Defendants re: status of rulemaking process (Bennett, Michelle) (Entered: 08/05/2013)
62 ORDER Lifting Stay of District Court Proceedings and Scheduling an In−Person Status Conference, ( Status Conference set for 8/21/2013 09:30 AM before District Judge Robert H. Cleland) Signed by District Judge Robert H. Cleland. (KKra)

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08/21/2013 08/28/2013
08/30/2013 09/06/2013 09/09/2013 09/12/2013 09/17/2013
09/20/2013 09/20/2013 10/01/2013 10/01/2013 10/01/2013 10/01/2013
10/02/2013 10/03/2013 10/03/2013 10/04/2013

(Entered: 08/09/2013)
Minute Entry for proceedings held before District Judge Robert H. Cleland: Status Conference held on 8/21/2013. (Monda, H) (Entered: 08/22/2013)
63 ORDER Setting Deadlines. (Amended Complaint due by 8/30/2013, Defendants to Provide Administrative Record to Plaintiff Legatus by 9/6/2013, Plaintiff Legatus's Motion for Preliminary Injunction due by 9/20/2013, Responses due by 10/4/2013, Replies due by 10/18/2013). SEE ORDER FOR ADDITIONAL DETAILS. Signed by District Judge Robert H. Cleland. (Monda, H) (Entered: 08/28/2013)
64 AMENDED COMPLAINT filed by All Plaintiffs against All Defendants. NO NEW PARTIES ADDED. (Mersino, Erin) (Entered: 08/30/2013)
65 ADMINISTRATIVE RECORD (Notice of Filing) by All Defendants (Attachments: # 1 Index for Administrative Record, # 2 Certification of Administrative Record) (Bennett, Michelle) (Entered: 09/06/2013)
66 ACKNOWLEDGMENT of receipt of CD's re 65 Administrative Record. (DWor) (Entered: 09/12/2013)
67 MOTION for Withdrawal of Attorney Ethan P. Davis by All Defendants. (Davis, Ethan) (Entered: 09/12/2013)
TEXT−ONLY ORDER GRANTING 67 MOTION for Withdrawal of Attorney Ethan P. Davis filed by United States Department of Treasury, Timothy Geithner, Kathleen Sebelius, Hilda L Solis, United States Department of Health and Human Services, United States Department of Labor., Attorney Ethan P. Davis terminated. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 09/17/2013)
68 MOTION for Preliminary Injunction by Legatus. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4) (Mersino, Erin) (Entered: 09/20/2013)
69 Proposed Findings of Fact by Legatus (Mersino, Erin) (Entered: 09/20/2013)
70 MOTION to Stay Briefing in Light of Lapse of Appropriations by All Defendants. (Bennett, Michelle) (Entered: 10/01/2013)
71 RESPONSE to 70 MOTION to Stay Briefing in Light of Lapse of Appropriations and MOTION for TRO in Light of Lapse of Appropriations filed by Legatus. (Mersino, Erin) (Entered: 10/01/2013)
72 REPLY to Response re 70 MOTION to Stay Briefing in Light of Lapse of Appropriations (Defendants' Opposition to Plaintiff's Motion for TRO, ECF No. 71) filed by All Defendants. (Bennett, Michelle) (Entered: 10/01/2013)
76 ORDER from U.S. Court of Appeals − Sixth Circuit re 47 Notice of Interlocutory Appeal filed by United States Department of Treasury, Timothy Geithner, Kathleen Sebelius, Hilda L Solis, United States Department of Health and Human Services, United States Department of Labor [Appeal Case Number 13−1092] (KKra) (Entered: 10/04/2013)
73 REPLY to Response re 70 MOTION to Stay Briefing in Light of Lapse of Appropriations in Support of Plaintiff's Motion for TRO filed by Legatus. (Mersino, Erin) (Entered: 10/02/2013)
74 ORDER Requiring Clarification ( Defendants' Response due by 10/3/2013) Signed by District Judge Robert H. Cleland. (LWag) (Entered: 10/03/2013)
75 MEMORANDUM re 74 Order, Set Deadlines/Hearings by All Defendants (Bennett, Michelle) Modified on 10/4/2013 (KKra). [DOCUMENT IS A RESPONSE TO ORDER] (Entered: 10/03/2013)
77 ORDER DENYING 70 MOTION to Stay Briefing in Light of Lapse of Appropriations filed by Defendants; DENYING 71 Plaintiffs' Motion for Temporary Restraining Order and Extending Time to file Briefs as to 68 MOTION for Preliminary Injunction , Responses due by 10/7/2013, Replies due by 10/21/2013) Signed by District Judge

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10/04/2013 10/04/2013 10/04/2013 10/08/2013 10/09/2013
10/15/2013 10/18/2013 10/18/2013 11/05/2013 11/21/2013 12/06/2013 12/16/2013 12/19/2013 12/20/2013 12/20/2013 02/12/2014 02/13/2014 05/05/2014
11/18/2014

Robert H. Cleland. (LWag) (Entered: 10/04/2013)
78 RESPONSE to 68 MOTION for Preliminary Injunction filed by All Defendants. (Bennett, Michelle) (Entered: 10/04/2013)
79 STATEMENT of Defendants' Response to Plaintiff's Proposed Findings of Fact by All Defendants (Bennett, Michelle) (Entered: 10/04/2013)
80 Proposed Findings of Fact by All Defendants (Bennett, Michelle) (Entered: 10/04/2013)
81 MOTION for Leave to File Amicus Curiae Brief by American Civil Liberties Union. (Attachments: # 1 Exhibit Proposed Amicus Brief) (Lee, Jennifer) (Entered: 10/08/2013)
82 ORDER from U.S. Court of Appeals − Sixth Circuit re 47 Notice of Interlocutory Appeal filed by United States Department of Treasury, Timothy Geithner, Kathleen Sebelius, Hilda L Solis, United States Department of Health and Human Services, United States Department of Labor [Appeal Case Number 13−1092] (KKra) (Entered: 10/10/2013)
83 ORDER granting 81 Motion for Leave to File an amicus brief. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 10/15/2013)
84 REPLY to Response re 68 MOTION for Preliminary Injunction filed by Legatus. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit Exhibit 1) (Mersino, Erin) (Entered: 10/18/2013)
85 Proposed Findings of Fact by Legatus (Mersino, Erin) (Entered: 10/18/2013)
86 NOTICE by Legatus of Supplemental Authority (Attachments: # 1 Exhibit Exhibit 1) (Mersino, Erin) (Entered: 11/05/2013)
87 NOTICE by Legatus SUPPLEMENTAL AUTHORITY NOTICE (Attachments: # 1 Exhibit Exhibit 1) (Mersino, Erin) (Entered: 11/21/2013)
88 NOTICE by All Defendants re 86 Notice (Other), 87 Notice (Other) Response to Plaintiff's Notices of Supplemental Authority (Bennett, Michelle) (Entered: 12/06/2013)
89 NOTICE by Legatus of Supplemental Authority (Attachments: # 1 Exhibit Exhibit 1) (Mersino, Erin) (Entered: 12/16/2013)
90 NOTICE by All Defendants re 89 Notice (Other) Defendants' Notice of Supplemental Authority and Response to Plaintiff's Notice of Supplemental Authority (Attachments: # 1 Exhibit Priests for Life v. HHS) (Bennett, Michelle) (Entered: 12/19/2013)
91 OPINION AND ORDER granting 68 Plaintiff Legatus's Motion for Preliminary Injunction. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 12/20/2013)
92 PRELIMINARY INJUNCTION Order Signed by District Judge Robert H. Cleland. (LWag) (Entered: 12/20/2013)
93 NOTICE OF INTERLOCUTORY APPEAL by All Defendants re 92 Preliminary Injunction, 91 Order on Motion for Preliminary Injunction. Fee Status: No Fee Paid. (Bennett, Michelle) (Entered: 02/12/2014)
94 Certificate of Service re 93 Notice of Interlocutory Appeal. (TMcg) (Entered: 02/13/2014)
95 ORDER from U.S. Court of Appeals − Sixth Circuit re 93 Notice of Interlocutory Appeal filed by United States Department of Treasury, Timothy Geithner, Kathleen Sebelius, Hilda L Solis, United States Department of Health and Human Services, United States Department of Labor [Appeal Case Number 14−1183/14−1310] (KKra) (Entered: 05/07/2014)
96 ORDER from U.S. Court of Appeals − Sixth Circuit re 47 Notice of Interlocutory Appeal filed by United States Department of Treasury, Timothy Geithner, Kathleen Sebelius, Hilda L Solis, United States Department of Health and Human Services, United States Department of Labor [Appeal Case Number 13−1092] (KKra) (Entered:

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12/09/2014 12/31/2014
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11/19/2014)
97 Joint MOTION to Approve Consent Judgment by All Defendants. (Attachments: # 1 Proposed Injunction and Judgment) (Bennett, Michelle) (Entered: 12/09/2014)
98 INJUNCTION AND JUDGMENT in favor of Plaintiffs Weingartz Supply Company and Daniel Weingartz on the claim under the Religious Freedom Restoration Act, against Defendants; DISMISSING all other claims against Defendants and Directing Parties to submit a joint status report no later than 2/9/2015. (see order for details) Signed by District Judge Robert H. Cleland. (LWag) (Entered: 12/31/2014)
99 NOTICE by All Plaintiffs Joint Status Report (Mersino, Erin) (Entered: 02/09/2015)
100 ORDER Directing the parties to file a joint status report no later than 4/15/2015, notifying the court about their progress in reaching an agreement on attorneys' fees and costs with respect to Plaintiffs claims. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 02/22/2015)
101 NOTICE by All Plaintiffs Joint Status Report (Mersino, Erin) (Entered: 04/15/2015)
102 ORDER from U.S. Court of Appeals − Sixth Circuit re 93 Notice of Interlocutory Appeal filed by United States Department of Treasury, Timothy Geithner, Kathleen Sebelius, Hilda L Solis, United States Department of Health and Human Services, United States Department of Labor [Appeal Case Number 14−1183] (Krause, S) (Entered: 11/09/2017)
103 STIPULATION of Dismissal by All Plaintiffs (Oliveri, Kate) (Entered: 02/02/2018)