Case: 1:12-cv-03932 Document #: 27 Filed: 08/08/12 Page 1 of 63 PageID #:228

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

)

R. DANIEL CONLON, BISHOP OF THE )

ROMAN CATHOLIC DIOCESE OF

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JOLIET, ILLINOIS, as Successor Trustee )

Under the Provisions of the Trust

)

Agreement Dated December 31, 1949;

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CATHOLIC CHARITIES DIOCESE OF )

JOLIET, INC.; THE MOST REVEREND )

THOMAS JOHN PAPROCKI, ROMAN )

CATHOLIC BISHOP OF THE DIOCESE )

OF SPRINGFIELD-IN-ILLINOIS;

)

CATHOLIC CHARITIES OF THE

)

DIOCESE OF SPRINGFIELD-IN-

)

ILLINOIS; CATHOLIC CHARITIES OF )

THE ARCHDIOCESE OF CHICAGO; )

and SAINT PATRICK HIGH SCHOOL, )

)

Plaintiffs,

)

v.

)

)

KATHLEEN SEBELIUS, in her official )

capacity as Secretary of the U.S.

)

Department of Health and Human

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Services; HILDA SOLIS, in her official

)

capacity as Secretary of the U.S.

)

Department of Labor; TIMOTHY

)

GEITHNER, in his official capacity as

)

Secretary of the U.S. Department of

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Treasury; U.S. DEPARTMENT OF

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HEALTH AND HUMAN SERVICES;

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U.S. DEPARTMENT OF LABOR; and

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U.S. DEPARTMENT OF TREASURY,

)

)

Defendants.

CASE NUMBER: 1:12-cv-3932 Hon. John W. Darrah
JURY TRIAL DEMANDED

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AMENDED COMPLAINT AND JURY DEMAND 1. This lawsuit is about one of America’s most cherished freedoms: the freedom to practice one’s religion without government interference. It is not about whether people have a right to abortion-inducing drugs, sterilization, and contraception. Those services are freely available in the United States, and nothing prevents the Government itself from making them more widely available. Here, however, the Government seeks to require Plaintiffs—all Catholic entities—to violate their sincerely held religious beliefs by providing, paying for, and/or facilitating access to those services. American history and tradition, embodied in the First Amendment to the United States Constitution and the Religious Freedom Restoration Act (“RFRA”), safeguard religious entities from such overbearing and oppressive governmental action. Plaintiffs therefore seek relief in this Court to protect this most fundamental of American rights. 2. Plaintiffs are Catholic religious entities that provide a wide range of spiritual, educational, and social services to residents throughout Illinois, Catholic and non-Catholic alike. For example, Plaintiff Diocese of Joliet is a community of Roman Catholic parishes, schools, and outreach organizations, guided by Bishop R. Daniel Conlon, that not only provides pastoral care and spiritual guidance for over 655,000 Catholics in Will, Grundy, DuPage, Kendall, Kankakee, Ford, and Iroquois counties, but also serves individuals without regard to their religion through its schools and multiple charitable programs. The Diocese of Joliet carries out its mission both on its own and through the work of its affiliated corporations, including Plaintiff Catholic Charities Diocese of Joliet, Inc. (“Catholic Charities Joliet”). Plaintiff Diocese of Springfield-in-Illinois (“Diocese of Springfield”), is a community of Roman Catholic parishes, schools, and outreach organizations, guided by Bishop Thomas John Paprocki, that administers
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to some 142,847 Catholics in 28 counties in Central Illinois and serves individuals without regard to their religion through its schools and charitable programs. The Diocese of Springfield carries out its mission both on its own and through the work of its affiliated corporations, including Plaintiff Catholic Charities of the Diocese of Springfield-in-Illinois (“Catholic Charities Springfield”). Plaintiff Catholic Charities of the Archdiocese of Chicago (“Catholic Charities Chicago”) is the social service arm of the Archdiocese of Chicago. Established in 1861, Plaintiff Saint Patrick High School is the oldest all-male Catholic high school in Chicago.
3. Plaintiffs’ work is in every respect guided by and consistent with Roman Catholic belief, including the requirement to serve those in need, regardless of their religion. This is perhaps best captured by words attributed to St. Francis of Assisi: “Preach the Gospel at all times. Use words if necessary.” As Pope Benedict has more recently put it, “Love for widows and orphans, prisoners, and the sick and needy of every kind, is as essential to [the Catholic Church] as the ministry of the sacraments and preaching of the Gospel. The Church cannot neglect the service of charity any more than she can neglect the Sacraments and the Word.” Pope Benedict XVI, Deus Caritas Est ¶ 22 (2006). Or as Cardinal James Hickey, former Archbishop of Washington, once commented on the role of Catholic educators: “We do not educate our students because they are Catholic; we educate them because we are Catholic.” Thus, Catholic individuals and organizations consistently work to create a more just community by serving any and all neighbors in need.
4. Catholic Church teachings also uphold the firm conviction that sexual union should be reserved to married couples who are so committed to one another that they are open to the creation of life; thus, artificial interference with the creation of life, including through abortion, sterilization, and contraceptives, is contrary to Catholic doctrine.
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5. Defendants have promulgated various rules (collectively, “the U.S. Government Mandate”) that force Plaintiffs to violate their sincerely held religious beliefs. Under the U.S. Government Mandate, many Catholic and other religious organizations are required to provide health plans to their employees that include and/or facilitate coverage for abortion-inducing drugs, sterilization, and contraception, in violation of their sincerely held religious beliefs. Ignoring broader religious exemptions from other federal laws, the Government has crafted a narrow exemption to this Mandate for certain “religious employers” who can convince the Government that they satisfy four criteria:
● “The inculcation of religious values is the purpose of the organization”; ● “The organization primarily employs persons who share the religious tenets of the
organization”; ● “The organization primarily serves persons who share the religious tenets of the
organization”; and ● “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.” Thus, in order to safeguard their religious freedoms, religious employers must plead with government bureaucrats for a determination that they are sufficiently “religious.”
6. Plaintiffs Diocese of Joliet and Diocese of Springfield do not know whether the Government will conclude that they satisfy the definition of a “religious employer” under the impermissibly vague terms of the exemption. And in order to find out, they must submit to an intrusive governmental investigation into whether, in the Government’s view, the Dioceses’ “purpose” is the “inculcation of religious values”; whether they “primarily” employ “persons who share [their] religious tenets,” even though they hire employees of all faiths; and whether they “primarily” serve such people, even though their schools, parishes, and social services are open to all.
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7. The definition of “religious employer,” moreover, excludes Catholic Charities Joliet, Catholic Charities Springfield, Catholic Charities Chicago, and Saint Patrick High School even though they are “religious” organizations under any reasonable definition of the term. Consequently, to even attempt to qualify as “religious employer[s],” these Plaintiffs may be required to stop providing educational opportunities to non-Catholics, stop serving nonCatholics, and fire non-Catholic employees—actions that would betray their religious commitment to serving all in need without regard to religion and undermine the Church’s vaunted tradition of service to others. Such a definition means that before extending services, Catholic organizations would have to stop saying, “Are you hungry?” and say instead, “Are you Catholic?”
8. The U.S. Government Mandate, including the exemption for certain “religious employers,” is irreconcilable with the First Amendment, RFRA, and other laws. The Government has not shown any compelling need to force Plaintiffs to provide, pay for, and/or facilitate access to abortion-inducing drugs, sterilization, and contraception, or for requiring Plaintiffs to submit to an intrusive governmental examination of their religious missions. The Government also has not shown that the U.S. Government Mandate is narrowly tailored to advancing any interest in increasing access to these services, since these services are already widely available and nothing prevents the Government from making them even more widely available by providing or paying for them directly through a duly-enacted law. The Government, therefore, cannot justify its decision to force Plaintiffs to provide, pay for, and/or facilitate access to these services in violation of their sincerely held religious beliefs.
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9. Accordingly, Plaintiffs seek a declaration that the U.S. Government Mandate cannot lawfully be applied to Plaintiffs, an injunction barring its enforcement, and an order vacating the Mandate. I. PRELIMINARY MATTERS
10. R. Daniel Conlon, Bishop of the Roman Catholic Diocese of Joliet, Illinois, as Successor Trustee Under the Provisions of the Trust Agreement Dated December 31, 1949 is the legal name of Plaintiff Diocese of Joliet. The Diocese is a trust with its principal place of business in Joliet.
11. Plaintiff Catholic Charities Diocese of Joliet, Inc. is an Illinois nonprofit corporation affiliated with the Diocese of Joliet. Its principal place of business is in Joliet. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
12. The Most Reverend Thomas John Paprocki, Roman Catholic Bishop of the Diocese of Springfield-in-Illinois is the legal name of Plaintiff Diocese of Springfield. The Diocese is a trust with its principal place of business in Springfield.
13. Plaintiff Catholic Charities of the Diocese of Springfield-in-Illinois is an Illinois nonprofit corporation affiliated with the Diocese of Springfield. Its principal place of business is in Springfield. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
14. Plaintiff Catholic Charities of the Archdiocese of Chicago is an Illinois nonprofit corporation affiliated with the Archdiocese of Chicago. Its principal place of business is in Chicago. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
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15. Plaintiff Saint Patrick High School is an Illinois nonprofit corporation. Its principal place of business is in Chicago. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
16. Defendant Kathleen Sebelius is the Secretary of the U.S. Department of Health and Human Services (“HHS”). She is sued in her official capacity.
17. Defendant Hilda Solis is the Secretary of the U.S. Department of Labor. She is sued in her official capacity.
18. Defendant Timothy Geithner is the Secretary of the U.S. Department of Treasury. He is sued in his official capacity.
19. Defendant U.S. Department of Health and Human Services is an executive agency of the United States within the meaning of RFRA and the Administrative Procedure Act (“APA”).
20. Defendant U.S. Department of Labor is an executive agency of the United States within the meaning of RFRA and the APA.
21. Defendant U.S. Department of Treasury is an executive agency of the United States within the meaning of RFRA and the APA.
22. This is an action for declaratory and injunctive relief under 5 U.S.C. § 702, 28 U.S.C. §§ 2201, 2202, and 42 U.S.C. § 2000bb-1.
23. An actual, justiciable controversy currently exists between Plaintiffs and Defendants. Absent a declaration resolving this controversy and the validity of the U.S. Government Mandate, Plaintiffs are uncertain as to their rights and duties in planning, negotiating, and/or implementing their group health insurance plans, their hiring and retention
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programs, and their social, educational, and charitable programs and ministries, as described below.
24. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
25. This Court has subject-matter jurisdiction over this action under 28 U.S.C. §§ 1331, 1343(a)(4), and 1346(a)(2).
26. Venue is proper in this Court under 28 U.S.C. § 1391(e)(1). A. Diocese of Joliet
27. The Diocese of Joliet encompasses over 120 parishes serving over 655,000 Catholics in Will, Grundy, DuPage, Kendall, Kankakee, Ford, and Iroquois counties. The Diocese is a trust, created in 1949. The Diocese’s parishes and most of its 62 high and elementary schools are part of the trust. The charitable work of the Diocese is also performed through a number of separate, affiliated corporations, including (among others) Catholic Charities Diocese of Joliet, Inc.
28. Bishop R. Daniel Conlon, formerly the Bishop of the Diocese of Steubenville, has led the Diocese of Joliet since July, 2011. Bishop Conlon is assisted in his ministry by an auxiliary bishop and by a staff of clergymen, religious brothers and sisters, and lay people. The Diocese of Joliet has nearly 2,000 full-time, benefits-eligible employees that work in its parishes, schools, and Diocesan offices. The Diocese does not know how many of its employees are Catholic.
29. The Diocese of Joliet carries out a tripartite spiritual, educational, and social service mission, reflecting the several dimensions of its ministry. The spiritual ministry of the Diocese is conducted largely through its parishes: through the ministry of its priests, the Diocese ensures the regular availability of the sacraments to all Catholics living in or visiting Will,
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Grundy, DuPage, Kendall, Kankakee, Ford, and Iroquois counties. It also provides numerous other opportunities for prayer, worship, and faith formation. In 2011, approximately 60,000 adults received formation in the Catholic faith through parish-level and Diocesan classes, lectures, and retreats. And, roughly 65,000 children received faith formation in the Diocese’s religious education programs and Catholic schools. Approximately 1,000 adults enter the Catholic Church each year through programs offered by the parishes of the Diocese, and, in 2011, there were 7,541 infant baptisms and 200 child baptisms. In addition to overseeing the sacramental life of its parishes, the Diocese coordinates Catholic campus ministries at three universities within its borders.
30. The Diocese of Joliet conducts its educational mission through its schools. When the Diocese was officially erected in 1948, there were already a number of schools within the Diocese, with the earliest school established in 1853. The Diocese operates 57 Catholic schools located within the Diocese—two high schools, 48 elementary schools, and seven pre-schools— serving over 21,600 students, and employing approximately 1,570 teachers and other school staff. Five additional Catholic schools are independent from, but located within, the Diocese and fall under the spiritual jurisdiction of Bishop Conlon.
31. The Diocesan schools welcome students in all financial conditions, from all backgrounds, and of any or no faith. In order to make a Catholic education available to as many children as possible, the Diocese of Joliet expends substantial funds in tuition assistance programs; it awarded over $1.3 million in tuition assistance in 2011-2012 to the high and elementary schools through its Catholic Education Foundation. Just over 12 percent of the students in the Diocesan elementary schools and over 12 percent in the high schools are minorities.
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32. The Catholic educational system has demonstrated a particular dedication to teaching the underserved. Schools like Holy Family Catholic School in Bensenville continue to exemplify the Catholic church’s dedication to teaching minority and non-Catholic youth. Holy Family, a Catholic elementary school committed to helping students grow spiritually, academically, socially, and physically, currently serves 188 students, 51 percent of whom are Hispanic. Schools like Holy Family are no less an expression and outgrowth of genuine Catholic belief because of the demographics of those they serve. Indeed, quite the opposite: the Diocese sees these schools as a vital part of its mission to offer to every student, in every place, a safe, morally sound, and academically rigorous education.
33. The Diocese of Joliet’s schools offer a unique educational experience. As Bishop Conlon has said about Catholic education, “[T]he Catholic school functions as a unique community of faith and love, serving both as an extension of the nuclear family and a localization of the larger Church. There may be alternatives to Catholic schools. There is no substitute.” To that end, the Diocesan schools have established three priorities that make them stand out from other educational institutions. Students are taught faith—not just the basics of Christianity, but how to have a relationship with God that will remain with them after they leave their Catholic schools. Service, the giving of one’s time and effort to help others, is taught as both a requirement of true faith and good citizenship. Finally, high academic standards help each student reach his or her potential. In the Diocese of Joliet, in 2011, the average student scored at or above the 75th mean national percentile in reading and language, and at or above the 71st mean national percentile for math. Three of the Diocese of Joliet’s schools have won the U.S. Department of Education’s Blue Ribbon Schools Award, and one of these schools is a twotime recipient. Nationally, over 99 percent of students in Catholic high schools graduate.
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34. The success of the Diocese’s approach to education is demonstrated by St. Michael’s School in Wheaton, where students have performed very well on the Iowa Tests of Basic Skills standardized tests, even within the context of a top performing Diocese. These scores place the school in the top 2 percent of schools in the nation.
35. Much of the social service work of the Diocese of Joliet is performed through its parishes. The parishes comprising the Diocese maintain their own charitable efforts, serving the needs of their communities with programs including employment and job training, adopt-afamily programs at Christmas, meals served to the homeless, and visits to nursing homes. The Diocese oversees all of the social service work undertaken by its parishes. Neither the Diocese nor its parishes keeps a tally of persons served through these outreach programs, nor do they request to know the religious affiliation of those served.
36. In summary, the Diocese—and the entire Catholic church—is committed to serving anyone in need, regardless of religion.
37. In addition to serving individuals of all faiths, the Diocese also employs individuals of all faiths.
38. The Diocese does not know how many of those it hires or serves are Catholic. In order to determine those statistics, the Diocese would be required to ask the religious affiliation of all individuals that it employs or serves. That inquiry, however, would substantially burden the Diocese’s religious exercise.
39. It is therefore unclear whether the Government will conclude that the Diocese of Joliet qualifies as a “religious employer” under the narrow exemption from compliance with the U.S. Government Mandate.
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40. Regardless of whether the Government concludes that the Diocese qualifies for the exemption, the Diocese is in every respect Roman Catholic.
41. Moreover, determining whether an organization—such as the Diocese of Joliet— qualifies for the exemption will require the Government to engage in an intrusive inquiry, based on an understanding of religion that is inconsistent with the Catholic faith, into whether, in the view of the Government, (1) the Diocese’s “purpose” is the “inculcation of religious values,” (2) whether the Diocese “primarily” employs “persons who share [its] religious tenets,” even though it hires employees of all faiths and does not know how many Catholics it employs, and (3) whether it “primarily” serves such people, even though its schools and social services are open to all.
42. Regardless of outcome, the Diocese of Joliet strongly objects to such an intrusive and misguided governmental investigation into its religious mission.
43. Finally, the Diocese of Joliet operates a self-insured health plan. That is, the Diocese does not contract with a separate insurance company that provides health care coverage to its employees. Instead, the Diocese itself functions as the insurance company underwriting its employees’ medical costs. Plaintiff Catholic Charities Diocese of Joliet also offers coverage through the Diocese’s plan.
44. Consistent with Church teachings, this plan does not cover abortion-inducing drugs, sterilization, or contraceptives. In limited circumstances, the Diocese’s health plan administrator can override the exclusion of certain sterilization procedures or drugs commonly used as contraceptives if a physician certifies that they were prescribed with the intent of treating certain medical conditions, not with the intent to prevent pregnancy.
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45. The Diocese’s plan is administered by a third-party administrator, Blue Cross Blue Shield. Blue Cross Blue Shield handles the administrative aspects of the Diocese’s selfinsured employee health plans, but Blue Cross Blue Shield bears none of the risks for benefits nor is it obligated to pay health care providers.
46. The Diocese of Joliet’s self-insured health plan does not meet the Affordable Care Act’s definition of a “grandfathered” plan because, since March 23, 2010, the Diocese has increased its percentage cost-sharing requirement and changed its premiums and added a tier. Further, the Diocese has not included and does not include a statement in plan materials provided to participants or beneficiaries informing them that it believes its plan is a grandfathered health plan within the meaning of section 1251 of the Affordable Care Act. See, e.g., 26 C.F.R. § 54.9815-1251T(a)(2)(i).
47. The plan year for the Diocese of Joliet (and the organizations it insures) begins on October 1.
B. Catholic Charities Diocese of Joliet, Inc. 48. Catholic Charities Joliet provides services to nearly 65,000 people annually,
approximately 90 percent of whom live below the poverty line. The organization began helping individuals and families in crisis after World War I. In 1962, it was officially incorporated and licensed as a child welfare agency in the State of Illinois. Today, its mission is to provide service to people in need and call others of good will to do the same. Catholic Charities Joliet pursues these goals through its own programs and through partnerships with parishes, community groups, and governmental agencies.
49. Catholic Charities Joliet is comprised of three divisions offering close to 40 programs, providing a panoply of services that include permanent housing for the chronically
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homeless, emergency support for those who have recently lost their jobs and/or need help paying their rent or mortgage, senior companionship, Head Start programming, and many others.
50. For example, Daybreak Shelter is one of the programs operated by Catholic Charities Joliet. Daybreak provides both short-term housing for those in need as a result of situational crises and supportive services for those working to reestablish permanent housing. It also provides homelessness prevention services to individuals and families at risk of losing their homes; comprehensive case management, coordination, and assisted access of community resources; child care; and education assessments and services. Daybreak sheltered almost 900 unduplicated individuals in 2011, and is the largest shelter in Will County. A program called Shepherd’s Table, located at Daybreak, also provides a free mid-day meal to members of the community who are hungry and unable to provide for themselves. Shepherd’s Table served a total of 29,332 unduplicated individuals in 2011.
51. Catholic Charities Senior Case Management Program, another of Catholic Charities Joliet’s flagship programs, provides seniors and their families assistance as they assess the need for care and coordinates an overall plan of service to maximize the senior’s independence in the home. Areas examined include medical care and supervision, personal care assistance, home maintenance, emergency response systems, financial needs, and living arrangements. The Senior Case Management Program served 9,070 unduplicated seniors and their families in 2011.
52. Catholic Charities Joliet is a corporation affiliated with the Diocese of Joliet. 53. Catholic Charities Joliet has over 240 employees, nearly 200 of whom are eligible for full benefits and an additional six of whom are eligible for pension benefits only. While Catholic Charities Joliet asks its employees to abide by the teachings of the church, it does not
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inquire about the religious commitments of its applicants for employment, and, as a result, it does not know how many of its employees are Catholic.
54. Catholic Charities Joliet serves people in need without regard to their religion. It does not ask whether people whom it serves are Catholic and, therefore, it does not know whether they are Catholic.
55. On information and belief, a majority of the people served by Catholic Charities are not Catholic.
56. Catholic Charities Joliet itself does not qualify as a “religious employer” under the exemption to the U.S. Government Mandate.
57. Catholic Charities Joliet employees are offered health insurance through the Diocese’s health plan.
C. Diocese of Springfield 58. The Diocese of Springfield encompasses over 130 parishes serving over 142,800
Catholics in 28 counties in Central Illinois. The Diocese is a trust, created in 1923. The Diocese’s parishes and most of its 48 schools are part of the trust; the parishes are also, as of July 1, 2012, individually set up as trusts. The charitable work of the Diocese is also performed through a number of separate, affiliated corporations.
59. Bishop Thomas John Paprocki, formerly the Auxiliary Bishop of Chicago, has led the Diocese since June, 2010. Bishop Paprocki is assisted in his ministry by a vicar general and by a staff of clergymen, religious brothers and sisters, and lay people. The Diocese and its affiliated corporations have approximately 2,585 employees, some 1,600 of whom are benefitseligible. While the Curial Office knows how many of its employees are Catholic, the parishes, schools, agencies, and institutions of the Diocese do not know how many of their employees are Catholic. Thus, the Diocese does not know how many of its employees in total are Catholic.
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60. The Diocese of Springfield carries out a tripartite spiritual, educational, and social service mission, reflecting the several dimensions of its ministry. The spiritual ministry of the Diocese is conducted largely through its parishes: through the ministry of its priests, the Diocese ensures the regular availability of the sacraments to all Catholics living in or visiting Central Illinois. It also provides numerous other opportunities for prayer, worship, and faith formation. Each year, tens of thousands of adults and children receive formation in the Catholic faith through parish-level and Diocesan classes, lectures, and retreats. In 2011, 420 adults entered the Catholic Church through programs offered by the parishes of the Diocese. In addition to overseeing the sacramental life of its parishes, the Diocese coordinates Catholic campus ministries at seven colleges and universities within its borders.
61. The Diocese of Springfield conducts its educational mission through its schools. There are 48 Catholic schools located in the Diocese—six high schools and 42 elementary schools, which educate over 11,000 children and employ nearly 1,100 teachers. The Diocese operates all of the schools within the Diocese.
62. The Diocesan schools welcome students in all financial conditions, from all backgrounds, and of any or no faith. In order to make a Catholic education available to as many children as possible, the Diocese of Springfield expends substantial funds in tuition assistance programs; it awarded over 132,600 dollars in tuition assistance for the 2011-2012 school year. 17.6 percent of the students in the Diocesan elementary schools and 8.9 percent in the high schools are minorities.
63. The Catholic educational system has demonstrated a particular dedication to teaching the underserved. Schools like Cathedral in Springfield continue to exemplify the Catholic church’s dedication to teaching minority and non-Catholic youth. Cathedral, a college
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preparatory school with 99 percent college placement, currently serves 148 students, 25.7 percent of whom are minorities and 19.6 percent of whom are not Catholic. Schools like Cathedral are no less an expression and outgrowth of genuine Catholic belief because they serve a large percentage of non-Catholics. Indeed, quite the opposite: the Diocese sees these schools as a vital part of its mission to offer to every student, in every place, a safe, morally sound, and academically rigorous education.
64. The Diocese of Springfield’s schools offer a unique experience. To that end, the Diocesan schools have established three priorities that make them stand out from other educational institutions. Students are taught faith—not just the basics of Christianity, but how to have a relationship with God that will remain with them after they leave their Catholic schools. Service, the giving of one’s time and effort to help others, is taught as both a requirement of true faith and good citizenship. Finally, high academic standards help each student reach his or her potential. One of the Diocese’s principals won an NCEA Distinguished Principal Award and an U.S. Department of Education National Distinguished Principals Award in 2009-2010. Nationally, over 99 percent of students in Catholic high schools graduate.
65. The success of the Diocese’s approach to education is demonstrated by St. Ambrose Catholic School in Godfrey, Illinois. The mission of St. Ambrose is to give students a strong foundation in knowledge, skills, and religious truths and values. The students have received numerous high rankings in curricular and extracurricular competitions, have won a number of scholarships, and have placed well in athletic championships. On a nationwide achievement test, 95.7 percent of the Diocese’s 8th graders scored in the top half.
66. Much of the social service work of the Diocese of Springfield is performed through its parishes. The parishes that comprise the Diocese maintain their own charitable
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efforts, serving the needs of their communities with programs including employment and job training, adopt-a-family programs at Christmas, meals served to the homeless, and visits to nursing homes. The Diocese oversees all of the social service work undertaken by its parishes. Neither the Diocese nor its parishes keeps a tally of persons served through these outreach programs, nor do they request to know the religious affiliation of those served.
67. In summary, the Diocese of Springfield—and the entire Catholic Church—is committed to serving anyone in need, regardless of religion.
68. In addition to serving individuals of all faiths, the Diocese also employs individuals of all faiths.
69. The Diocese does not know how many of those it hires or serves are Catholic. In order to determine those statistics, the Diocese would be required to ask the religious affiliation of all individuals that it employs or serves. That inquiry, however, would substantially burden the Diocese’s religious exercise.
70. It is therefore unclear whether the Government will conclude that the Diocese of Springfield qualifies as a “religious employer” under the narrow exemption from compliance with the U.S. Government Mandate.
71. Regardless of whether the Government concludes that the Diocese qualifies for the exemption, the Diocese is in every respect Roman Catholic.
72. Moreover, determining whether an organization—such as the Diocese of Springfield—qualifies for the exemption will require the Government to engage in an intrusive inquiry, based on an understanding of religion that is inconsistent with the Catholic faith, into whether, in the view of the Government, (1) the Diocese’s “purpose” is the “inculcation of religious values,” (2) whether the Diocese “primarily” employs “persons who share [its]
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religious tenets,” even though it hires employees of all faiths and does not know how many Catholics it employs, and (3) whether it “primarily” serves such people, even though its schools and social services are open to all.
73. Regardless of outcome, the Diocese of Springfield strongly objects to such an intrusive and misguided governmental investigation into its religious mission.
74. Finally, the Diocese of Springfield operates a self-insured health plan. That is, the Diocese does not contract with a separate insurance company that provides health care coverage to its employees. Instead, the Diocese itself functions as the insurance company underwriting its employees’ medical costs. Plaintiff Catholic Charities Springfield also offers coverage through the Diocese’s plan.
75. Consistent with Church teachings, this plan does not cover abortion-inducing drugs, sterilization, or contraceptives. In limited circumstances, the Diocese’s health plan administrator can override the exclusion of certain drugs commonly used as contraceptives if a physician certifies that they were prescribed with the intent of treating certain medical conditions, not with the intent to prevent pregnancy.
76. The Diocese’s plan is administered by a third-party administrator, Healthsmart Benefit Solutions. Healthsmart Benefit Solutions handles the administrative aspects of the Diocese’s self-insured employee health plans, but Healthsmart Benefit Solutions bears none of the risks for benefits nor is it obligated to pay health care providers.
77. The Diocese of Springfield’s self-insured health plan currently meets the Affordable Care Act’s definition of a “grandfathered plan.” The Diocese has included a statement describing its grandfathered status in its Plan materials, as required by 26 C.F.R. § 54.9815-1251T(a)(2)(ii).
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78. The Diocese of Springfield is currently barred—now—from altering its plan in the best interests of its employees for fear of losing the protection of its grandfathered status. The Diocese wants to change its plan in two ways: (1) increasing the prescription drug co-pay; and (2) adding a co-pay on emergency room visits. But, the Diocese is stuck in perpetuity with providing its current plan, and forgoing substantial modifications that may benefit its plan participants and the organization as a whole, simply to avoid compromising its core religious beliefs. Without judicial review, the Diocese of Springfield will continue to suffer hardship.
79. In any event, the Diocese of Springfield will lose its grandfathered status in the near future for reasons that cannot be avoided. For example, the employee contribution to the premium cannot increase by more than 5 percent of the cost of coverage compared to the employee contribution on March 23, 2010. 26 C.F.R. §54.9815-1251T(g)(1)(v). Given the current trajectory of health care costs, the Diocese of Springfield anticipates that employee contributions to its plan will exceed that 5 percent within the next few years. Even the Government acknowledges that the number of grandfathered health plans will decrease substantially in the near future. See 75 Fed. Reg. 41,276, 41731 (July 19, 2010).
80. Thus, the Diocese of Springfield has standing to invoke the power of this Court to redress the injuries it is presently suffering and, in addition, other imminent injuries that it is likely to suffer in the near future.
81. The plan year for the Diocese of Springfield begins on July 1. D. Catholic Charities of the Diocese of Springfield-in-Illinois
82. Catholic Charities Springfield provides services to nearly 60,000 people annually, approximately 85 percent of whom live below the poverty line. The organization was first established as the Catholic Social Service in 1925. Today, Catholic Charities Springfield is a nationally accredited and licensed child welfare agency providing professional, quality social
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services to children and families with a wide range of needs. Catholic Charities Springfield pursues these goals through its own programs and through partnerships with parishes, community groups, and governmental agencies.
83. Catholic Charities Springfield is comprised of 9 divisions offering 18 programs, providing a panoply of services that includes serving abused and neglected children, ministering to the sick, working to keep families together and to make them whole again, ensuring that seniors can live out their lives with dignity, and providing food and clothing to those in need.
84. For example, Catholic Children’s Home (“CCH”) is one of the programs operated by Catholic Charities Springfield. Through its residential programs, CCH provides emergency shelter care, long-term residential care, and independent living programs for children who are wards of the state and victims of abuse and neglect. CCH assisted 57 children and families in 2011. In addition, CCH operates a Special Education School that served 108 special needs children in the St. Louis Metro East area during 2011.
85. Eldercare Options, another of Catholic Charities Springfield’s flagship programs, assesses, counsels, and determines the need for guardianship for disabled and aged adults. It also offers alternative services to guardianship, such as referrals to other agencies, and information and education about guardianship to families. Eldercare Options served 173 seniors and their families in 2011.
86. Catholic Charities Springfield is a corporation affiliated with the Diocese of Springfield.
87. Catholic Charities Springfield has over 200 employees, nearly 150 of whom are eligible for full benefits. While Catholic Charities Springfield asks its employees to abide by the
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teachings of the church, it does not inquire about the religious commitments of its applicants for employment, and, as a result, it does not know how many of its employees are Catholic.
88. Catholic Charities Springfield serves people in need without regard to their religion. It does not ask whether people whom it serves are Catholic and, therefore, it does not know whether they are Catholic.
89. On information and belief, a majority of the people served by Catholic Charities Springfield are not Catholic.
90. Catholic Charities Springfield itself does not qualify as a “religious employer” under the exemption to the U.S. Government Mandate.
91. Catholic Charities Springfield employees are offered health insurance through the Diocese’s health plan.
E. Catholic Charities of the Archdiocese of Chicago 92. Catholic Charities Chicago is one of the largest private, not-for-profit, social
service agencies in the Midwest, annually serving over one million persons in Cook and Lake counties. Through its many programs, services, and partnerships, Catholic Charities Chicago provides an invaluable and indeed necessary safety net for the most needy and vulnerable members of communities throughout the Chicagoland area. Catholic Charities Chicago’s impact on Chicago cannot be overstated, as an estimated one of every eight people who live in the region is touched in some way by Catholic Charities Chicago.
93. Catholic Charities Chicago’s purpose is to carry out the mandates of the Gospel and the social teaching of the Catholic Church through works of Christian charity, service, and social justice by providing competent and caring social services, special assistance to those in great need, and programs of community outreach and advocacy using the skills and talents of professional staff and volunteers. Catholic Charities Chicago pursues these goals through its
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own programs and through partnerships with parishes, community groups, and governmental agencies.
94. Catholic Charities Chicago fulfills the Catholic Church’s commitment to charity for all people in need regardless of their religious affiliation or lack thereof by providing compassionate, competent, professional services that strengthen and support individuals, families and communities. Catholic Charities Chicago currently operates 157 programs in 162 sites across all of Cook and Lake counties, feeding, sheltering, and clothing disadvantaged persons, and helping them along the path toward self-sufficiency. Catholic Charities Chicago’s services address the fundamental requirements of impoverished children, families, veterans, and seniors. Catholic Charities Chicago’s clients have access to a comprehensive wraparound network of services designed to meet all of the clients’ basic human needs. Catholic Charities Chicago’s complementary services range from food pantries to mental health counseling, affordable housing, senior services, employment placement, and almost everything in between. Catholic Charities Chicago’s goal is to help each client become as self-sufficient as possible.
95. One example of Catholic Charities Chicago’s services is the Homelessness Prevention Call Center (“Call Center”) operated by Catholic Charities Chicago in partnership with the City of Chicago and other charitable organizations. The Call Center is a critical component of Catholic Charities Chicago’s ongoing involvement in a collaborative effort among municipal governments and private charitable entities to reduce the numbers of homeless persons in Chicago and its suburban areas. Catholic Charities Chicago staffs the Call Center with referral specialists who provide at-risk families with information about the various funding resources available to assist them. Within the City of Chicago, the program connects with persons in need of its help through the City of Chicago’s city services hotline, 3-1-1. As a result
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of the collaborative homelessness prevention effort between Catholic Charities Chicago and the

City of Chicago, any caller to the hotline who requests “short term help” in avoiding

homelessness is automatically transferred to the Call Center and connected with the appropriate

resources. Since opening in January 2007, the Call Center has responded to over 350,000 calls.

96. Catholic Charities Chicago also provides a wide variety of important

immigration-related services. Through its Immigrant Family Resource Center, Catholic

Charities Chicago helps newly immigrated individuals in Chicago and its suburbs find access to

health care, food stamps, and other survival needs. The Immigrant Family Resource Center

hosts information sessions at sites throughout Chicago and the suburbs and provides assistance

with assessing eligibility for benefits provided by the Illinois Department of Human Services.

Catholic Charities Chicago also provides assistance with the U.S. immigration system to U.S.

citizens and lawful permanent residents. Catholic Charities Chicago assists eligible persons with

family reunification applications, extensions of stay, replacement of permanent residence cards,

work permits, naturalization certificates, and inquiries for status of cases at the U.S. Citizenship

and Immigration Services as well as at American consulates abroad. Catholic Charities Chicago

also operates a Refugee Resettlement Program that provides core reception, home, and job

placement services to newly arrived refugees from all over the world.

97. Other examples of the services provided by Catholic Charities Chicago include:



Senior Home-Based Services. Catholic Charities Chicago offers in-home

services for thousands of seniors in order to allow them to remain in their

homes and out of institutional care facilities. Over 700 employees in the

Senior Home-Based Services program provide economically-

disadvantaged elderly with basic necessities such as meals and medical

care. The Senior Home-Based Services program and Catholic Charities

Chicago’s other senior assistance programs provided a strong support

network for more than 250,000 seniors in 2011.



Veterans Services. Catholic Charities Chicago provides housing, job

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training, and recovery services for veterans at a number of sites throughout the Chicago area. For example, at the St. Leo Campus for Veterans, Catholic Charities Chicago provides residences for both able-bodied and disabled veterans and a resource center for job placement and benefits screening.



Nutrition Services. To fulfill its clients’ fundamental need for

nourishment, Catholic Charities Chicago prepares meals for thousands of

seniors, children, and families throughout the Chicago area. As part of its

commitment to feeding the hungry, Catholic Charities Chicago offers

dinner every night of the week at 7 sites throughout its territory for a total

of 70,000 meals a year.

98. Catholic Charities Chicago is a corporation affiliated with the Archdiocese of

Chicago.

99. Catholic Charities Chicago has approximately 2,700 full- and part-time staff,

approximately 1,600 of whom are benefits-eligible. Catholic Charities Chicago does not inquire

about the religious commitments or affiliations of its applicants for employment, and, as a result,

it does not know how many of its employees are Catholic.

100. Catholic Charities Chicago serves people in need without regard to their religion.

It does not ask whether people whom it serves are Catholic and, therefore, it does not know

whether they are Catholic.

101. On information and belief, a majority of the people served by Catholic Charities

Chicago are not Catholic.

102. Catholic Charities Chicago itself does not qualify as a “religious employer” under

the exemption to the U.S. Government Mandate.

103. Catholic Charities Chicago offers health insurance through the Catholic Charities

USA Employee Welfare Benefit Trust (“CCUSA Trust”), a self-funded welfare benefit plan.

The CCUSA Trust is both the plan sponsor and the plan administrator. CareFirst Administrator

(“CFA”) is an independent licensee of Blue Cross and Blue Shield Association. The CFA Group

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provides administrative services only and does not assume any financial risk or obligation with respect to health care benefit claims for the self-insured portion of the plan.
104. The plan does not cover abortion-inducing drugs or sterilization. Contraceptives are not covered by the plan unless a physician provides a letter specifically explaining why they are necessary for medical treatment unrelated to contraception.
105. Catholic Charities Chicago’s health plan does not meet the Affordable Care Act’s definition of a “grandfathered” plan because, since March 23, 2010, Catholic Charities Chicago has changed its insurance carrier. Further, Catholic Charities Chicago has not included and does not include a statement in plan materials provided to participants or beneficiaries informing them that it believes its plan is a grandfathered health plan within the meaning of section 1251 of the Affordable Care Act. See, e.g., 26 C.F.R. § 54.9815-1251T(a)(2)(i).
106. The plan year for Catholic Charities Chicago begins on January 1. F. Saint Patrick High School
107. Saint Patrick High School is an all-male college preparatory Catholic high school located in the Belmont-Cragin neighborhood on the northwest side of Chicago, Illinois. It was opened in 1861 by the Brothers of the Christian Schools (or, De La Salle Christian Brothers) and is the oldest all-male Catholic high school in Chicago. As Saint Patrick High School states in its Core Values, Saint Patrick High School is “Catholic in faith, Lasallian in tradition”; it “believe[s] in an educational process that is student centered and of the highest quality”; and it “believe[s] in and foster[s] service opportunities for students and faculty.”
108. In 2011-2012, Saint Patrick High School educated over 800 students. It welcomes students in all financial conditions, from all backgrounds, and of any or no faith. In order to make a Catholic education available to as many children as possible, Saint Patrick High School expends substantial funds in tuition assistance programs; it awarded $1.1 million in
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tuition assistance in 2011-2012 alone. 37-38 percent of Saint Patrick High School’s students are minorities.
109. Saint Patrick High School’s academic success is evident from the many awards and scholarships its students have earned and from its students’ rate of college placement. In 2011, the Evans Scholars Foundation awarded scholarships to five Saint Patrick High School students; it awarded another two scholarships in 2012. Also in 2012, Saint Patrick had a National Merit Finalist and the maximum allowable number of Illinois State Scholars. 95 percent of Saint Patrick’s students go on to college and university studies; the other 5 percent join the military or seek vocational education. In 2012, Saint Patrick’s graduating class was offered over $10.3 million in college scholarship grants.
110. Saint Patrick High School has approximately 95 full- and part-time employees, 92 of whom are benefits-eligible. Saint Patrick does not inquire about the religious commitments or affiliations of its applicants for employment, unless those applicants are applying to teach religion.
111. Saint Patrick High School educates students without regard to their religion. 112. Saint Patrick High School itself does not qualify as a “religious employer” under the exemption to the U.S. Government Mandate. 113. Saint Patrick High School offers health insurance through the Christian Brothers Employee Benefit Trust, a self-funded welfare benefit plan. The plan sponsor is the Trustees of Christian Brothers Employee Benefit Trust, and Christian Brothers Services (appointed by the Trustees) is the plan administrator. 114. The plan does not cover abortion-inducing drugs, sterilization, or contraception (unless pre-authorized and used for medical illnesses, not contraception).
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115. Saint Patrick High School’s health plan does not meet the Affordable Care Act’s definition of a “grandfathered” plan because the plan has not included and does not include a statement in plan materials provided to participants or beneficiaries informing them that the plan is a grandfathered health plan within the meaning of section 1251 of the Affordable Care Act. See, e.g., 26 C.F.R. § 54.9815-1251T(a)(2)(i).
116. The plan year for Saint Patrick High School begins on January 1. II. STATUTORY AND REGULATORY BACKGROUND
A. Statutory Background 117. In March 2010, Congress enacted the Patient Protection and Affordable Care Act,
Pub. L. No. 111-148, 124 Stat. 119 (2010), and the Health Care and Education Reconciliation Act, Pub. L. No. 111-152, 124 Stat. 1029 (2010) (collectively, the “Affordable Care Act” or the “Act”). The Affordable Care Act established many new requirements for “group health plan[s],” broadly defined as “employee welfare benefit plan[s]” within the meaning of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1002(1), that “provide[] medical care . . . to employees or their dependents.” 42 U.S.C. § 300gg-91(a)(1).
118. As relevant here, the Act requires an employer’s group health plan to cover certain women’s “preventive care.” Specifically, it indicated that “[a] group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum[,] provide coverage for and shall not impose any cost sharing requirements for—(4) with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.” Pub. L. No. 111-148 § 1001(5), 124 Stat. 131 (codified at 42 U.S.C. § 300gg-13(a)(4)). Because the Act prohibits “cost sharing requirements,” the health plan must pay for the full costs of these “preventive care” services without any deductible or co-payment.
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119. “[T]he Affordable Care Act preserves the ability of individuals to retain coverage under a group health plan or health insurance coverage in which the individual was enrolled on March 23, 2010.” Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 75 Fed. Reg. 41,726, 41,731 (July 19, 2010) (“Interim Final Rules”); 42 U.S.C. § 18011. These so-called “grandfathered health plans do not have to meet the requirements” of the U.S. Government Mandate. 75 Fed. Reg. at 41,731. HHS estimates that “98 million individuals will be enrolled in grandfathered group health plans in 2013.” Id. at 41,732.
120. Violations of the Affordable Care Act can subject an employer and an insurer to substantial monetary penalties.
121. Under the Internal Revenue Code, certain employers who fail to offer “full-time employees (and their dependents) the opportunity to enroll in minimum essential coverage under an eligible employer-sponsored plan” will be exposed to significant annual fines of $2,000 per full-time employee. See 26 U.S.C. § 4980H(a), (c)(1).
122. Additionally, under the Internal Revenue Code, group health plans that fail to provide certain required coverage may be subject to an assessment of $100 a day per individual. See 26 U.S.C. § 4980D(b); see also Jennifer Staman & Jon Shimabukuro, Cong. Research Serv., RL 7-5700, Enforcement of the Preventative Health Care Services Requirements of the Patient Protection and Affordable Care Act (2012) (asserting that this applies to employers who violate the “preventive care” provision of the Affordable Care Act).
123. Under the Public Health Service Act, the Secretary of HHS may impose a monetary penalty of $100 a day per individual where an insurer fails to provide the coverage required by the U.S. Government Mandate. See 42 U.S.C. § 300gg-22(b)(2)(C)(i); see also
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Cong. Research Serv., RL 7-5700 (asserting that this penalty applies to insurers who violate the “preventive care” provision of the Affordable Care Act).
124. ERISA may provide for additional penalties. Under ERISA, plan participants can bring civil actions against insurers for unpaid benefits. 29 U.S.C. § 1132(a)(1)(B); see also Cong. Research Serv., RL 7-5700. Similarly, the Secretary of Labor may bring an enforcement action against group health plans of employers that violate the U.S. Government Mandate, as incorporated by ERISA. See 29 U.S.C. § 1132(b)(3); see also Cong. Research Serv., RL 7-5700 (asserting that these penalties can apply to employers and insurers who violate the “preventive care” provision of the Affordable Care Act).
125. Several of the Act’s provisions, along with other federal statutes, reflect a clear congressional intent that the executive agency charged with identifying the “preventive care” required by § 300gg-13(a)(4) should exclude all abortion-related services. The Act itself states that “nothing in this title (or any amendment made by this title) 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.” 42 U.S.C. § 18023(b)(1)(A)(i). And the Act left it to “the issuer of a qualified health plan,” not the Government, “[to] determine whether or not the plan provides coverage of [abortion].” Id. § 18023(b)(1)(A)(ii).
126. Likewise, the Weldon Amendment, which has been included in every HHS and Department of Labor appropriations bill since 2004, prohibits certain agencies from discriminating against an institution based on that institution’s refusal to provide abortion-related services. Specifically, it states that “[n]one of the funds made available in this Act [to the Department of Labor and the Department of Health and Human Services] may be made available to a Federal agency or program . . . if such agency, program, or government subjects any
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institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(1), 125 Stat. 786, 1111 (2011).
127. The legislative history of the Act also demonstrates a clear congressional intent to prohibit the executive branch from requiring group health plans to provide abortion-related services. For example, the House of Representatives originally passed a bill that included an amendment by Congressman Bart Stupak prohibiting the use of federal funds for abortion services. See H.R. 3962, 111th Cong. § 265 (Nov. 7, 2009). The Senate version, however, lacked that restriction. S. Amend. No. 2786 to H.R. 3590, 111th Cong. (Dec. 23, 2009). To avoid a filibuster in the Senate, congressional proponents of the Act engaged in a procedure known as “budget reconciliation” that required the House to adopt the Senate version of the bill largely in its entirety. Congressman Stupak and other pro-life House members, however, indicated that they would refuse to vote for the Senate version because it failed adequately to prohibit federal funding of abortion. In an attempt to address these concerns, President Obama issued an executive order providing that no executive agency would authorize the federal funding of abortion services. See Exec. Order No. 13535, 75 Fed. Reg. 15,599 (Mar. 24, 2010).
128. The Act was, therefore, passed on the central premise that all agencies would uphold and follow “longstanding Federal laws to protect conscience” and to prohibit federal funding of abortion. Id. That executive order was consistent with a 2009 speech that President Obama gave at the University of Notre Dame, in which he indicated that his Administration would honor the consciences of those who disagree with abortion, and draft sensible conscience clauses.
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B. Regulatory Background—Defining “Preventive Care” and the Narrow Exemption 129. In a span of less than two years, Defendants promulgated the U.S. Government
Mandate, subverting the Act’s clear purpose to protect the rights of conscience. The U.S. Government Mandate, moreover, was implemented contrary to the normal procedural rules governing the promulgation and implementation of rules of this magnitude.
130. In particular, on July 19, 2010, Defendants issued initial interim final rules concerning § 300gg-13(a)(4)’s requirement that group health plans provide coverage for women’s “preventive care.” Interim Final Rules, 75 Fed. Reg. 41,726. Defendants dispensed with noticeand-comment rulemaking for these rules. Even though federal law had never required coverage of abortion-inducing drugs, sterilization, or contraceptives, Defendants claimed both that the APA did not apply to the relevant provisions of the Affordable Care Act and that “it would be impracticable and contrary to the public interest to delay putting the provisions in these interim final regulations in place until a full public notice and comment process was completed.” Id. at 41,730.
131. The interim final rules referred to the Affordable Care Act’s statutory language. They indicated that “a group health plan . . . must provide coverage for all of the following items and services, and may not impose any cost-sharing requirements (such as a copayment, coinsurance, or deductible) with respect to those items or services: . . . (iv) With respect to women, to the extent not described in paragraph (a)(1)(i) of this section, evidence-informed preventive care and screenings provided for in comprehensive guidelines supported by the Health Resources and Services Administration.” Interim Final Rules, 75 Fed. Reg. at 41,759 (codified at 45 C.F.R. § 147.130(a)(iv)).
132. The interim final rules, however, failed to identify the women’s “preventive care” that Defendants planned to require employer group health plans to cover. 42 U.S.C. § 300gg-
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13(a)(4). Instead, Defendants noted that “[t]he Department of HHS [was] developing these guidelines and expects to issue them no later than August 1, 2011.” Interim Final Rules, 75 Fed. Reg. at 41,731.
133. Defendants permitted concerned entities to provide written comments about the interim final rules. See id. at 41,726. But, as Defendants have conceded, they did not comply with the notice-and-comment requirements of the APA. Id. at 41,730.
134. In response, several groups engaged in a lobbying effort to persuade Defendants to include various contraceptives and abortion-inducing drugs in the “preventive care” requirements for group health plans. See, e.g., Press Release, Planned Parenthood, Planned Parenthood Supports Initial White House Regulations on Preventive Care (July 14, 2010), available at http://www.plannedparenthood.org/about-us/newsroom/press-releases/plannedparenthood-supports-initial-white-house-regulations-preventive-care-highlights-need-new33140.htm. Other commenters noted that “preventive care” could not reasonably be interpreted to include such practices. These groups indicated that pregnancy was not a disease that needed to be “prevented,” and that a contrary view would intrude on the sincerely held beliefs of many religiously affiliated organizations. See, e.g., Comments of U.S. Conference of Catholic Bishops, at 1-2 (Sept. 17, 2010), available at http://old.usccb.org/ogc/preventive.pdf.
135. On August 1, 2011, HHS announced the “preventive care” services that group health plans would be required to cover. See Press Release, HHS, Affordable Care Act Ensures Women Receive Preventive Services at No Additional Cost (Aug. 1, 2011), available at http://www.hhs.gov/news/press/2011pres/08/20110801b.html. Again acting without notice-andcomment rulemaking, HHS announced these guidelines through a press release rather than enactments in the Code of Federal Regulations or statements in the Federal Register.
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136. The press release made clear that the guidelines were developed by a nongovernmental “independent” organization, the Institute of Medicine (“IOM”). See id. In developing the guidelines, IOM invited certain groups to make presentations on preventive care. On information and belief, no groups that oppose government-mandated coverage of abortion, contraception, and related education and counseling were among the invited presenters. Comm. on Preventive Servs. for Women, Inst. of Med., Clinical Preventive Services for Women app. B at 217-21 (2011), http://www.nap.edu/openbook.php?record_id=13181&page=R1.
137. The IOM’s own report, in turn, included a dissent that suggested that the IOM’s recommendations were made on an unduly short time frame dictated by political considerations, through a process that was largely subject to the preferences of the committee’s composition, and without the appropriate transparency for all concerned persons.
138. In direct contradiction of the central compromise necessary for the Affordable Care Act’s passage and President Obama’s promise to protect religious liberty, HHS’s guidelines required insurers and group health plans to cover “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” See Health Res. Servs. Admin., Women’s Preventive Services: Required Health Plan Coverage Guidelines, http://www.hrsa.gov/womensguidelines/ (last visited Apr. 25, 2012). FDA-approved contraceptives that qualify under these guidelines include drugs that induce abortions. For example, the FDA has approved “emergency contraceptives” such as the morning-after pill (otherwise known as Plan B), which can prevent an embryo from implanting in the womb, and Ulipristal (otherwise known as HRP 2000 or ella), which likewise can induce abortions.
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139. A few days later, on August 3, 2011, Defendants issued amendments to the interim final rules that they had enacted in July 2010. See Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 76 Fed. Reg. 46,621 (Aug. 3, 2011). Defendants issued the amendments again without notice-and-comment rulemaking on the same grounds that they had provided for bypassing the APA with the original rules. See id. at 46,624.
140. When announcing the amended regulations, Defendants ignored the view that “preventive care” should exclude abortion-inducing drugs, sterilization, or contraceptives that do not prevent disease. Instead, they noted only that “commenters [had] asserted that requiring group health plans sponsored by religious employers to cover contraceptive services that their faith deems contrary to its religious tenets would impinge upon their religious freedom.” Id. at 46,623.
141. Defendants then sought “to provide for a religious accommodation that respect[ed]” only “the unique relationship between a house of worship and its employees in ministerial positions.” Id.
142. Specifically, the regulatory exemption ignores definitions of religious employers already existing in federal law and, instead, covers only those employers whose purpose is to inculcate religious values, and who employ and serve primarily individuals of the same religion. It provides in full:
(A) In developing the binding health plan coverage guidelines specified in this paragraph (a)(1)(iv), the Health Resources and Services Administration shall be informed by evidence and may establish exemptions from such guidelines with respect to group health plans established or maintained by religious employers and health insurance coverage provided in connection with group health plans established or maintained by religious employers with
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respect to any requirement to cover contraceptive services under such guidelines.
(B) For purposes of this subsection, a “religious employer” is an organization that meets 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.
Id. at 46,626 (codified at 45 C.F.R. § 147.130(a)(iv)(A)-(B)).
143. The exemption excludes the health plans of all other religiously affiliated
employers that view their missions as providing charitable, educational, and employment
opportunities to all those who request it, regardless of their religious faith.
144. Moreover, determining whether an organization is sufficiently “religious” to
qualify for the exemption requires an unconstitutionally invasive inquiry into an organization’s
religious beliefs and practices. For example, the Government must determine the “religious
tenets” of an organization and the individuals it employs and serves; it must determine whether
the organization “primarily” employs and “primarily” serves individuals who “share” the
organization’s “religious tenets”; and it must determine whether “the purpose” of the
organization is the “inculcation of religious values.”
145. When issuing this interim final rule, Defendants did not explain why they
constructed such a narrow religious exemption. Nor did Defendants explain why they refused to
incorporate other “longstanding Federal laws to protect conscience” that President Obama’s
executive order previously had promised to respect. See Exec. Order No. 13535, 75 Fed. Reg.
15,599 (Mar. 24, 2010). ERISA, for example, has long excluded “church plans” from its
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requirements, more broadly defined to cover civil law corporations that share religious bonds with a church. See 29 U.S.C. §§ 1002(33)(C)(iv), 1003. Likewise, the Affordable Care Act’s requirement that all individuals maintain minimum essential coverage excludes those individuals who have a religious objection to receiving benefits from public or private insurance. 26 U.S.C. §§ 1402(g)(1), 5000A(d)(2). Nor did Defendants consider whether they had a compelling interest to require religiously affiliated employers to include services in their health plans that were contrary to their religious beliefs, or whether Defendants could achieve their views of sound policy in a more religiously accommodating manner.
146. Suggesting that they were open to good-faith discussion, Defendants once again permitted parties to provide comments to the amended rules. Numerous organizations expressed the same concerns that they had before, noting that the mandated services should not be viewed as “preventive care.” They also explained that the religious exemption was “narrower than any conscience clause ever enacted in federal law, and narrower than the vast majority of religious exemptions from state contraceptive mandates.” Comments of U.S. Conference of Catholic Bishops at 1-2 (Aug. 31, 2011), available at http://www.usccb.org/about/generalcounsel/rulemaking/upload/comments-to-hhs-on-preventive-services-2011-08.pdf. Others submitted their own comments emphasizing that “[p]regnancy is not a disease, and drugs and surgeries to prevent it are not basic health care that the government should require all Americans to purchase.” Comments of Archdiocese of Washington at 1 (Sept. 30, 2011), available at http://www.dol.gov/ebsa/pdf/1210-AB44a-14694.pdf.
147. Three months later, “[a]fter evaluating [the new] comments” to the interim final rules, Defendants gave their response. They did not request further discussion or make attempts at compromise. Nor did they explain the basis for their decision. Instead, Defendant Sebelius
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issued a short, Friday-afternoon press release, announcing, with little analysis or reasoning, that HHS had decided to keep the exemption unchanged, but creating a temporary enforcement safe harbor whereby “[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.” See Press Release, HHS, A Statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius (Jan. 20, 2012), available at http://www.hhs.gov/news/press/2012pres/01/20120120a.html. As noted by Cardinal Timothy Dolan, the Archbishop of New York, the release effectively gave objecting religious institutions “a year to figure out how to violate [their] consciences.” Taken together, these various rules and press releases amount to a mandate that requires most religiously affiliated organizations to provide coverage for services to their employees that are directly contrary to their religious beliefs.
148. On February 10, 2012, after a continuing public outcry against the U.S. Government Mandate and its exceedingly narrow conscience protections, the White House held a press conference and issued another press release about the U.S. Government Mandate. The White House announced that it had come up with a policy to “accommodate” religious objections to the U.S. Government Mandate, according to which the insurance companies of religious organizations that object to providing coverage for abortion-inducing drugs, sterilization, or contraceptives “will be required to directly offer . . . contraceptive care [to plan participants] free of charge.” White House, Fact Sheet: Women’s Preventive Services and Religious Institutions (Feb. 10, 2012), available at http://www.whitehouse.gov/the-press-office/2012/02/10/fact-sheetwomen-s-preventive-services-and-religious-institutions.
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149. Despite objections that this “accommodation” did nothing of substance to protect the right of conscience, when asked if there would be further room for compromise, White House Chief of Staff Jacob Lew responded: “No, this is our plan.” David Eldridge & Cheryl Wetzstein, White House Says Contraception Compromise Will Stand, The Washington Times, Feb. 12, 2012, http://www.washingtontimes.com/news/2012/feb/12/white-house-birth-controlcompromise-will-stand/print/.
150. Defendants subsequently explained in the Federal Register that they “plan[ned] to initiate a rulemaking to require issuers to offer insurance without contraception coverage to [an objecting religious] employer (or plan sponsor) and simultaneously to offer contraceptive coverage directly to the employer’s plan participants (and their beneficiaries) who desire it, with no cost-sharing.” Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 77 Fed. Reg. 8725, 8728 (Feb. 15, 2012). The Federal Register further asserted that the rulemaking would “achieve the same goals for self-insured group health plans.” Id.
151. Defendants then “finalize[d], without change,” the interim final rules containing the religious employer exemption, 77 Fed. Reg. at 8729, and issued guidelines regarding the previously announced “temporary enforcement safe harbor” for “non-exempted, non-profit religious organizations with religious objections to such coverage.” Id. at 8725; see Ctr for Consumer Info. & Ins. Oversight, Guidance on the Temporary Enforcement Safe Harbor (Feb. 10, 2012), available at http://cciio.cms.gov/resources/files/Files2/02102012/20120210Preventive-Services-Bulletin.pdf.
152. On March 16, 2012, Defendants issued an Advance Notice of Proposed Rulemaking (“ANPRM”) seeking comment on various ways to structure the proposed
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accommodation. Certain Preventive Services Under the Affordable Care Act, 77 Fed. Reg. 16,501 (Mar. 21, 2012). The proposed scenarios require an “independent entity” to provide coverage for the objectionable services at no cost to the participants. But private entities do not provide insurance coverage “for free.” Moreover, even if these proposals were adopted, they would still require religious organizations to provide, pay for, and/or facilitate access to the objectionable services. Finally, it is also unclear whether the Government has statutory authority to implement each of the possibilities referenced in the ANPRM.
153. The ANPRM does not alter existing law. It merely states an intention to do so at some point in the future. But a promise to change the law, whether issued by the White House or in the form of an ANPRM, does not, in fact, change the law. The U.S. Government Mandate is therefore the current, operative law. Plaintiffs have until the start of the next plan year following August 1, 2013, to come into compliance with this law. III. THE U.S. GOVERNMENT MANDATE IMPOSES AN IMMEDIATE AND
SUBSTANTIAL BURDEN ON PLAINTIFFS’ RELIGIOUS LIBERTY A. The U.S. Government Mandate Substantially Burdens Plaintiffs’ Religious Beliefs
154. Responding to the U.S. Government Mandate, Cardinal Donald W. Wuerl, the Archbishop of Washington, has declared that “what is at stake here is a question of human freedom.” And indeed it is. Since the founding of this country, our society and legal system have recognized that individuals and institutions are entitled to freedom of conscience and religious practice. As noted by Thomas Jefferson, “[n]o provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of civil authority.”
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155. The U.S. Government Mandate seeks to require Plaintiffs to provide, pay for, and/or facilitate access to services that are contrary to their religious beliefs. It thus severely burdens Plaintiffs’ firmly held religious beliefs.
156. The U.S. Government Mandate also seeks to compel Plaintiffs to fund related “patient education and counseling for all women with reproductive capacity.” It therefore compels Plaintiffs to pay for, provide, and/or facilitate speech that is contrary to their firmly held religious beliefs.
157. Although the U.S. Government Mandate contains a narrow religious exemption, in order to qualify, religious organizations must submit to an invasive governmental inquiry regarding their purpose and religious beliefs. Requiring Plaintiffs to submit to this governmentconducted religious test likewise substantially burdens their firmly held religious beliefs.
158. It is unclear how the Government defines or will interpret “the purpose” of an organization.
159. It is unclear how the Government defines or will interpret vague terms, such as “primarily,” “share,” and “religious tenets.”
160. It is unclear how the Government will ascertain the “religious tenets” of an organization, those it employs, and those it serves.
161. It is unclear how much overlap the Government will require for religious tenets to be “share[d].”
162. Any attempt by Plaintiffs to qualify for the narrow religious employer exemption by restricting their charitable and educational mission to coreligionists would have devastating effects on the communities Plaintiffs serve.
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163. Indeed, the Government does not even provide Plaintiffs the option to attempt to avoid the U.S. Government Mandate by exiting the health care market. Eliminating its employee group health plan or refusing to provide plans that cover abortion-inducing drugs, sterilization, or contraceptives would expose each Plaintiff to substantial annual fines. It is no “choice” to leave those employees scrambling for health insurance while subjecting Plaintiffs to significant fines for breaking the law. Yet that is what the U.S. Government Mandate requires for Plaintiffs to adhere to their religious beliefs.
164. The U.S. Government Mandate also inhibits Plaintiffs’ ability to hire and retain employees, attract students, and solicit charitable contributions.
165. Nor would the opaque, promised “accommodation”—even if it were law, which it is not—relieve Plaintiffs from the unconscionable position in which the U.S. Government Mandate currently puts them, for numerous reasons.
166. First, the promised “accommodation” would not alter the fact that Plaintiffs would be required to facilitate practices that run directly contrary to their beliefs. Catholic teaching does not simply require Catholic institutions to avoid directly paying for practices that are viewed as intrinsically immoral. It also requires them to avoid actions that facilitate those practices.
167. Second, any requirement that insurance companies or other independent entities provide preventive services “free of charge” is illusory. For-profit entities do not provide services for free. Instead, increased costs are passed through to consumers in the form of higher premiums or fees. Under the proposed accommodation, doctors will still have to be paid to prescribe the objectionable services and drug companies and pharmacists will still have to be paid for providing them. Hypothetical future savings cannot be used to pay those fees; rather, the money will necessarily be derived from increased premiums or fees.
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168. Third, the “accommodation” does not affect the narrow exemption applicable to “religious employers.” To qualify for that narrow exemption, religious organizations must submit to an invasive governmental inquiry. Requiring Plaintiffs to submit to this government-conducted test to determine if Plaintiffs are sufficiently religious is inappropriate and substantially burdens their firmly held religious beliefs.
169. Finally, as noted below, the U.S. Government Mandate is burdening Plaintiffs’ religious beliefs right now. Plaintiffs cannot possibly wait until August 1, 2013, to determine how to respond to the U.S. Government Mandate.
170. In short, while the President claimed to have “f[ou]nd a solution that works for everyone” and that ensures that “[r]eligious liberty will be protected,” in reality, his promised “accommodation” does neither. Unless and until this issue is definitively resolved, the U.S. Government Mandate does and will continue to impose a substantial burden on Plaintiffs’ religious beliefs.
B. The U.S. Government Mandate Is Not a Neutral Law of General Applicability 171. The U.S. Government Mandate is not a neutral law of general applicability. It
offers multiple exemptions from its requirement that employer-based health plans include or facilitate coverage for abortion-inducing drugs, sterilization, contraception, and related education and counseling. It was, moreover, implemented by and at the behest of individuals and organizations who disagree with certain religious beliefs regarding abortion and contraception, and thus targets religious organizations for disfavored treatment.
172. For example, the U.S. Government Mandate exempts all “grandfathered” plans from its requirements.
173. The Government has also crafted a religious exemption to the U.S. Government Mandate that favors certain religions over others. As noted, it applies only to plans sponsored by
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religious organizations that have, as their “purpose,” the “inculcation of religious values”; that “primarily” serve individuals that share their “religious tenets”; and that “primarily” employ such individuals. 45 C.F.R. § 147.130(a)(iv)(B).
174. The U.S. Government Mandate, moreover, was promulgated by Government officials, and supported by non-governmental organizations, who strongly oppose certain Catholic teachings and beliefs. For example, on October 5, 2011, Defendant Sebelius spoke at a fundraiser for NARAL Pro-Choice America. Defendant Sebelius has long supported abortion rights and criticized Catholic teachings and beliefs regarding abortion and contraception. NARAL Pro-Choice America is a pro-abortion organization that likewise opposes many Catholic teachings. At that fundraiser, Defendant Sebelius criticized individuals and entities whose beliefs differed from those held by her and the other attendees of the NARAL Pro-Choice America fundraiser, stating: “Wouldn’t you think that people who want to reduce the number of abortions would champion the cause of widely available, widely affordable contraceptive services? Not so much.”
175. Consequently, on information and belief, Plaintiffs allege that the purpose of the U.S. Government Mandate, including the narrow exemption, is to discriminate against religious institutions and organizations that oppose abortion and contraception.
C. The U.S. Government Mandate Is Not the Least Restrictive Means of Furthering a Compelling Governmental Interest
176. The U.S. Government Mandate is not narrowly tailored to promoting a compelling governmental interest.
177. The Government has no compelling interest in forcing Plaintiffs to violate their sincerely held religious beliefs by requiring them to provide, pay for, or facilitate access to abortion-inducing drugs, sterilization, contraceptives, and related education and counseling. The
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Government itself has relieved numerous other employers from this requirement by exempting grandfathered plans and plans of employers it deems to be sufficiently religious. Moreover, these services are widely available in the United States. The U.S. Supreme Court has held that individuals have a constitutional right to use such services. And nothing that Plaintiffs do inhibits any individual from exercising that right.
178. Even assuming the interest was compelling, the Government has numerous alternatives to furthering that interest other than forcing Plaintiffs to violate their religious beliefs. For example, the Government could have provided or paid for the objectionable services itself through other programs established by a duly enacted law. Or, at a minimum, it could have created a broader exemption for religious employers, such as those found in numerous state laws throughout the country and in other federal laws. The Government therefore cannot possibly demonstrate that requiring Plaintiffs to violate their consciences is the least restrictive means of furthering its interest.
179. The U.S. Government Mandate, moreover, would simultaneously undermine both religious freedom—a fundamental right enshrined in the U.S. Constitution—and access to the wide variety of social and educational services that Plaintiffs provide. The Diocese of Joliet, Diocese of Springfield, and Saint Patrick High School educate children whose families want an alternative to the public school system; and Catholic Charities Joliet, Catholic Charities Springfield, and Catholic Charities Chicago provide a range of social services to the citizens of Illinois. As President Obama acknowledged in his February 10th announcement, religious organizations like Plaintiffs do “more good for a community than a government program ever could.” The U.S. Government Mandate, however, puts these good works in jeopardy.
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180. That is unconscionable. Accordingly, Plaintiffs seek a declaration that the U.S. Government Mandate cannot lawfully be applied to Plaintiffs, an injunction barring its enforcement, and an order vacating the Mandate.
D. The U.S. Government Mandate’s Religious Employer Exemption Excessively Entangles the Government in Religion and Interferes with Religious Institutions’ Religious Doctrine
181. The U.S. Government Mandate’s religious employer exemption further excessively entangles the Government in defining the purpose and religious tenets of each organization and its employees and beneficiaries.
182. In order to determine whether the Diocese of Joliet and Diocese of Springfield— or any other religious organization—qualify for the exemption, the Government would have to identify the organizations’ “religious tenets” and determine whether “the purpose” of the organizations is to “inculcate” those tenets.
183. The Government would then have to conduct an inquiry into the practices and beliefs of the individuals that the organizations ultimately employ and educate.
184. The Government would then have to compare and contrast those religious practices and beliefs to determine whether and how many of them are “share[d].”
185. Regardless of outcome, this inquiry is unconstitutional, and Plaintiffs strongly object to such an intrusive governmental investigation into organizations’ religious mission.
186. The religious employer exemption is based on an improper Government determination that “inculcation” is the only legitimate religious purpose.
187. The Government should not base an exemption on an assessment of the “purity” or legitimacy of an institution’s religious purpose.
188. By limiting that legitimate purpose to “inculcation,” at the expense of other sincerely held religious purposes, the U.S. Government Mandate interferes with religious
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autonomy. Religious institutions have the right to determine their own religious purpose, including religious purposes broader than “inculcation,” without Government interference and without losing their religious liberties.
189. Defining religion based on employing and serving primarily people who share the organization’s religious tenets directly contradicts Plaintiffs sincerely held religious beliefs regarding their religious mission to serve all people, regardless of whether or not they share the same faith.
190. This narrow exemption may protect some religious organizations. But it does not protect the many Catholic and other religious organizations that educate students of all faiths, provide vital social services to individuals of all faiths, and employ individuals of all faiths. The U.S. Government Mandate thus discriminates against such religious organizations because of their religious commitment to educate, serve, and employ people of all faiths.
191. It is unclear whether, if an entity qualifies as a “religious employer” for purposes of the exemption, any affiliated corporation that provides coverage to its employees through the exempt entity’s group health plan would also receive the benefit of the exemption. Certain Preventive Services Under the Affordable Care Act, 77 Fed. Reg. at 16,502 (Mar. 21, 2012).
192. It is unclear whether, if the Diocese of Joliet and/or Diocese of Springfield qualify as “religious employer[s]” under the exemption to the U.S. Government Mandate, any affiliated corporations that provide coverage to their employees through the Diocesan group health plans would therefore also receive the benefit of the exemption.
E. The U.S. Government Mandate Is Causing Present Hardship to Plaintiffs That Should Be Remedied by a Court
193. The U.S. Government Mandate is already causing serious, ongoing hardship to Plaintiffs that merits judicial relief now.
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194. Health plans do not take shape overnight. A number of analyses, negotiations, and decisions must occur each year before Plaintiffs can offer a health benefits package to their employees. For example, an employer that is self-insured—like the Diocese of Joliet, through which Catholic Charities Joliet offers insurance, or the Diocese of Springfield, through which Catholic Charities Springfield offers insurance—must work with actuaries to evaluate its funding reserves, and then negotiate with its third-party administrator to determine the cost of the products and services it wants. An employer that is insured through another organization—like Catholic Charities Chicago and Saint Patrick High School—similarly must evaluate its funding reserves and work with the organization offering its insurance to guarantee that the plan will offer coverage for the products and services the employer wants.
195. Under normal circumstances, Plaintiffs must begin the process of determining their health care package for a plan year at least four to six months before the plan year begins. The multiple levels of uncertainty surrounding the U.S. Government Mandate make this already lengthy process even more complex.
196. For example, if Plaintiffs decide that the only tolerable option is to attempt to qualify as a “religious employer” under the U.S. Government Mandate, they will need to undertake a major overhaul of their corporate structures, hiring practices, and the scope of their programming. This process could take years.
197. In addition, if Plaintiffs do not comply with the U.S. Government Mandate, they may be subject to annual government fines and penalties. Plaintiffs require time to budget for any such additional expenses.
198. The U.S. Government Mandate and its uncertain legality, moreover, undermine Plaintiffs’ ability to hire and retain employees.
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199. Plaintiffs therefore need judicial relief now in order to prevent the serious, ongoing harm that the U.S. Government Mandate is already imposing on them. IV. CAUSES OF ACTION
COUNT I Substantial Burden on Religious Exercise
in Violation of RFRA 200. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 201. RFRA prohibits the Government from substantially burdening an entity’s exercise of religion, even if the burden results from a rule of general applicability, unless the Government demonstrates that the burden furthers a compelling governmental interest and is the least restrictive means of furthering that interest. 202. RFRA protects organizations as well as individuals from Government-imposed substantial burdens on religious exercise. 203. RFRA applies to all federal law and the implementation of that law by any branch, department, agency, instrumentality, or official of the United States. 204. The U.S. Government Mandate requires Plaintiffs to provide, pay for, and/or facilitate practices and speech that are contrary to their religious beliefs. 205. In order to qualify for the “religious employer” exemption to the U.S. Government Mandate, Plaintiffs must submit to an intrusive government inquiry into their religious beliefs. 206. The U.S. Government Mandate substantially burdens Plaintiffs’ exercise of religion. 207. The Government has no compelling governmental interest to require Plaintiffs to comply with the U.S. Government Mandate.
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208. Requiring Plaintiffs to comply with the U.S. Government Mandate is not the least restrictive means of furthering a compelling governmental interest.
209. By enacting and threatening to enforce the U.S. Government Mandate against Plaintiffs, Defendants have violated RFRA.
210. Plaintiffs have no adequate remedy at law. 211. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT II Substantial Burden on Religious Exercise in Violation of
the Free Exercise Clause of the First Amendment 212. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 213. The Free Exercise Clause of the First Amendment prohibits the Government from substantially burdening an entity’s exercise of religion. 214. The Free Exercise Clause protects organizations as well as individuals from Government-imposed burdens on religious exercise. 215. The U.S. Government Mandate requires Plaintiffs to provide, pay for, and/or facilitate practices and speech that are contrary to their religious beliefs. 216. In order to qualify for the “religious employer” exemption to the U.S. Government Mandate, Plaintiffs must submit to an intrusive government inquiry into their religious beliefs. 217. The U.S. Government Mandate substantially burdens Plaintiffs’ exercise of religion. 218. The U.S. Government Mandate is not a neutral law of general applicability because it is riddled with exemptions for which there is not a consistent, legally defensible basis. It offers multiple exemptions from its requirement that employer-based health plans include or
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facilitate coverage for abortion-inducing drugs, sterilization, contraception, and related education and counseling.
219. The U.S. Government Mandate is not a neutral law of general applicability because it discriminates against certain religious viewpoints and targets certain religious organizations for disfavored treatment. Defendants enacted the U.S. Government Mandate despite being aware of the substantial burden it would place on Plaintiffs’ exercise of religion.
220. The U.S. Government Mandate implicates constitutional rights in addition to the right to free exercise of religion, including, for example, the rights to free speech and to freedom from excessive government entanglement with religion.
221. The Government has no compelling governmental interest to require Plaintiffs to comply with the U.S. Government Mandate.
222. The U.S. Government Mandate is not narrowly tailored to further a compelling governmental interest.
223. By enacting and threatening to enforce the U.S. Government Mandate, the Government has burdened Plaintiffs’ religious exercise in violation of the Free Exercise Clause of the First Amendment.
224. Plaintiffs have no adequate remedy at law. 225. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT III Excessive Entanglement in Violation of the Free Exercise and Establishment Clauses of the First Amendment 226. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint.
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227. The Free Exercise Clause and the Establishment Clause of the First Amendment prohibit intrusive government inquiries into the religious beliefs of individuals and institutions, and other forms of excessive entanglement between religion and Government.
228. This prohibition on excessive entanglement protects organizations as well as individuals.
229. In order to qualify for the exemption to the U.S. Government Mandate for “religious employers,” entities must submit to an invasive government investigation into an organization’s religious beliefs, including whether the organization’s “purpose” is the “inculcation of religious values” and whether the organization “primarily employs” and “primarily serves” individuals who share the organization’s religious tenets.
230. The U.S. Government Mandate thus requires the Government to engage in invasive inquiries and judgments regarding questions of religious belief or practice.
231. The U.S. Government Mandate results in an excessive entanglement between religion and Government.
232. The U.S. Government Mandate is therefore unconstitutional and invalid. 233. The enactment and impending enforcement of the U.S. Government Mandate violate the Free Exercise Clause and the Establishment Clause of the First Amendment. 234. Plaintiffs have no adequate remedy at law. 235. The U.S. Government Mandate and its impending enforcement impose an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT IV Religious Discrimination in Violation of the Free Exercise and Establishment Clauses of the First Amendment 236. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint.
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237. The Free Exercise Clause and the Establishment Clause of the First Amendment mandate the equal treatment of all religious faiths and institutions without discrimination or preference.
238. This mandate of equal treatment protects organizations as well as individuals. 239. The U.S. Government Mandate’s narrow exemption for certain “religious employers” but not others discriminates on the basis of religious views or religious status. 240. The U.S. Government Mandate’s definition of religious employer likewise discriminates among different types of religious entities based on the nature of those entities’ religious beliefs or practices. 241. The U.S. Government Mandate’s definition of religious employer furthers no compelling governmental interest. 242. The U.S. Government Mandate’s definition of religious employer is not narrowly tailored to further a compelling governmental interest. 243. The enactment and impending enforcement of the U.S. Government Mandate violate the Free Exercise Clause and the Establishment Clause of the First Amendment. 244. Plaintiffs have no adequate remedy at law. 245. The U.S. Government Mandate and its impending enforcement impose an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT V Interference in Matters of Internal Church Governance in Violation of the Free Exercise and Establishment Clauses of the First Amendment 246. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 247. The Free Exercise Clause and Establishment Clause protect the freedom of religious organizations to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.
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248. Under these Clauses, the Government may not interfere with a religious organization’s internal decisions concerning the organization’s religious structure, ministers, or doctrine.
249. Under these Clauses, the Government may not interfere with a religious organization’s internal decision if that interference would affect the faith and mission of the organization itself.
250. Plaintiffs are religious organizations affiliated with the Roman Catholic Church. 251. The Catholic Church views abortion, sterilization, and contraception as intrinsically immoral, and prohibits Catholic organizations from condoning or facilitating those practices. 252. Plaintiffs have abided and must continue to abide by the decision of the Catholic Church on these issues. 253. The Government may not interfere with or otherwise question the final decision of the Catholic Church that its religious organizations must abide by these views. 254. Plaintiffs have therefore made the internal decision that the health plans they offer to their employees may not cover, subsidize, or facilitate abortion, sterilization, or contraception. 255. The U.S. Government Mandate interferes with Plaintiffs’ internal decisions concerning their structure and mission by requiring them to facilitate practices that directly conflict with Catholic beliefs. 256. The U.S. Government Mandate’s interference with Plaintiffs’ internal decisions affects their faith and mission by requiring them to facilitate practices that directly conflict with their religious beliefs.
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257. Because the U.S. Government Mandate interferes with the internal decisionmaking of Plaintiffs in a manner that affects Plaintiffs’ faith and mission, it violates the Establishment Clause and the Free Exercise Clause of the First Amendment.
258. Plaintiffs have no adequate remedy at law. 259. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT VI Compelled Speech in Violation of the Free Speech Clause of the First Amendment 260. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 261. The First Amendment protects against the compelled affirmation of any religious or ideological proposition that the speaker finds unacceptable. 262. The First Amendment protects organizations as well as individuals against compelled speech. 263. Expenditures are a form of speech protected by the First Amendment. 264. The First Amendment protects against the use of a speaker’s money to support a viewpoint that conflicts with the speaker’s religious beliefs. 265. The U.S. Government Mandate would compel Plaintiffs to provide health care plans to their employees that include or facilitate coverage of practices that violate their religious beliefs. 266. The U.S. Government Mandate would compel Plaintiffs to subsidize, promote, and facilitate education and counseling services regarding these practices. 267. By imposing the U.S. Government Mandate, Defendants are compelling Plaintiffs to publicly subsidize or facilitate the activity and speech of private entities that are contrary to their religious beliefs.
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268. The U.S. Government Mandate is viewpoint-discriminatory and subject to strict scrutiny.
269. The U.S. Government Mandate furthers no compelling governmental interest. 270. The U.S. Government Mandate is not narrowly tailored to further a compelling governmental interest. 271. Plaintiffs have no adequate remedy at law. 272. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT VII Failure to Conduct Notice-and-Comment Rulemaking and Improper
Delegation in Violation of the APA 273. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 274. The Affordable Care Act expressly delegates to an agency within Defendant HHS, the Health Resources and Services Administration, the authority to establish guidelines concerning the “preventive care” that a group health plan and health insurance issuer must provide. 275. Given this express delegation, Defendants were required to engage in formal notice-and-comment rulemaking in a manner prescribed by law before issuing the guidelines that group health plans and insurers must cover. Proposed regulations were required to be published in the Federal Register and interested persons were required to be given an opportunity to participate in the rulemaking through the submission of written data, views, or arguments. 276. Defendants promulgated the “preventive care” guidelines without engaging in formal notice-and-comment rulemaking in a manner prescribed by law. 277. Defendants, instead, delegated their responsibilities for issuing preventive care guidelines to a non-governmental entity, the IOM.
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278. The IOM did not permit or provide for the broad public comment otherwise required under the APA concerning the guidelines that it would recommend. The dissent to the IOM report noted both that the IOM conducted its review in an unacceptably short time frame, and that the review process lacked transparency.
279. Within two weeks of the IOM issuing its guidelines, Defendant HHS issued a press release announcing that the IOM’s guidelines were required under the Affordable Care Act.
280. Defendants have never explained why they failed to enact these “preventive care” guidelines through notice-and-comment rulemaking as required by the APA.
281. Defendants also failed to engage in notice-and-comment rulemaking when issuing the interim final rules and the final rule incorporating the guidelines.
282. Defendants’ stated reasons for promulgating these rules without engaging in formal notice-and-comment rulemaking do not constitute “good cause.” Providing public notice and an opportunity for comment was not impracticable, unnecessary, or contrary to the public interest for the reasons claimed by Defendants.
283. By enacting the “preventive care” guidelines and interim and final rules through delegation to a non-governmental entity and without engaging in notice-and-comment rulemaking, Defendants failed to observe a procedure required by law and thus violated 5 U.S.C. § 706(2)(D).
284. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
285. Plaintiffs have no adequate remedy at law.
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286. The enactment of the U.S. Government Mandate without observance of a procedure required by law and its impending enforcement impose an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT VIII Arbitrary and Capricious Action in Violation of the APA 287. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 288. The APA condemns agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). 289. The APA requires that an agency examine the relevant data and articulate an explanation for its action that includes a rational connection between the facts found and the policy choice made. 290. Agency action is arbitrary and capricious under the APA if the agency has failed to consider an important aspect of the problem before it. 291. A court reviewing agency action may not supply a reasoned basis that the agency itself has failed to offer. 292. Defendants failed to consider the suggestion of many commenters that abortioninducing drugs, sterilization, or contraception could not be viewed as “preventive care.” 293. Defendants failed adequately to engage with voluminous comments suggesting that the scope of the religious exemption to the U.S. Government Mandate should be broadened. 294. Defendants did not articulate a reasoned basis for their action by drawing a connection between facts found and the policy decisions they made. 295. Defendants failed to provide any standards or processes for how the Administration will decide which religious institutions will be included in the religious exemption.
58

Case: 1:12-cv-03932 Document #: 27 Filed: 08/08/12 Page 59 of 63 PageID #:286
296. Defendants failed to consider the use of broader religious exemptions in many other federal laws and regulations.
297. Defendants’ promulgation of the U.S. Government Mandate violates the APA. 298. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile. 299. Plaintiffs have no adequate remedy at law. 300. Defendants are imposing an immediate and ongoing harm on the Plaintiffs that warrants relief.
COUNT IX Acting Illegally in Violation of the APA 301. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 302. The APA requires that all Government agency action, findings, and conclusions be “in accordance with law.” 303. The U.S. Government Mandate and its exemption are illegal and therefore in violation of the APA. 304. The Weldon Amendment states that “[n]one of the funds made available in this Act [to the Department of Labor and the Department of Health and Human Services] may be made available to a Federal agency or program . . . if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(1), 125 Stat. 786, 1111 (2011). 305. The Affordable Care Act states that “nothing in this title (or any amendment by this title) shall be construed to require a qualified health plan to provide coverage of [abortion]
59

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services . . . as part of its essential health benefits for any plan year.” 42 U.S.C. § 18023(b)(1)(A)(i). It adds that “the issuer of a qualified health plan shall determine whether or not the plan provides coverage of [abortion.]” Id. § 18023(b)(1)(A)(ii).
306. The Affordable Care Act contains no clear expression of an affirmative intention of Congress that employers with religiously motivated objections to the provision of health plans that include coverage for abortion-inducing drugs, sterilization, contraception, or related education and counseling should be required to provide such plans.
307. The U.S. Government Mandate requires employer-based health plans to provide coverage for abortion-inducing drugs, contraception, sterilization, and related education. It does not permit employers or issuers to determine whether the plan covers abortion, as the Act requires. By issuing the U.S. Government Mandate, Defendants have exceeded their authority, and ignored the direction of Congress.
308. The U.S. Government Mandate violates RFRA 309. The U.S. Government Mandate violates the First Amendment. 310. The U.S. Government Mandate is not in accordance with law and thus violates 5 U.S.C. § 706(2)(A). 311. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile. 312. Plaintiffs have no adequate remedy at law. 313. Defendants failure to act in accordance with law imposes an immediate and ongoing harm on Plaintiffs that warrants relief.
DEMAND FOR JURY TRIAL Plaintiffs hereby make demand for a trial by jury on all issues so triable.
60

Case: 1:12-cv-03932 Document #: 27 Filed: 08/08/12 Page 61 of 63 PageID #:288 WHEREFORE, Plaintiffs respectfully pray that this Court: 1. Enter a declaratory judgment that the U.S. Government Mandate violates Plaintiffs’ rights under RFRA; 2. Enter a declaratory judgment that the U.S. Government Mandate violates Plaintiffs’ rights under the First Amendment; 3. Enter a declaratory judgment that the U.S. Government Mandate was promulgated in violation of the APA; 4. Enter an injunction prohibiting the Defendants from enforcing the U.S. Government Mandate against Plaintiffs; 5. Enter an order vacating the U.S. Government Mandate; 6. Award Plaintiffs attorney and expert fees under 42 U.S.C. § 1988; and 7. Award all other relief as the Court may deem just and proper.
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Respectfully submitted, this the 8th day of August, 2012.
JONES DAY
/s/ Brian J. Murray Daniel E. Reidy
IL Bar No. 2306948 dereidy@jonesday.com Carol A. Hogan IL Bar No. 6202430 chogan@jonesday.com Mark P. Rotatori IL Bar No. 6225962 mprotatori@jonesday.com Brian J. Murray IL Bar No. 6272767 bjmurray@jonesday.com Dennis Murashko IL Bar No. 6293444 dmurashko@jonesday.com 77 West Wacker Drive Chicago, IL 60601 (312) 782-3939 (telephone) (312) 782-8585 (facsimile) Counsel for Plaintiffs
62

Case: 1:12-cv-03932 Document #: 27 Filed: 08/08/12 Page 63 of 63 PageID #:290 CERTIFICATE OF SERVICE
I hereby certify that on August 8th, 2012, I electronically filed the foregoing Amended Complaint and Jury Demand with the Clerk of the Court using the CM/ECF system, which will send notification to all counsel of record.
/s/ Brian J. Murray One of the Attorneys for Plaintiffs
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 Case: 1:12-cv-03932 Document #: 54 Filed: 02/08/13 Page 1 of 12 PageID #:613

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

R. DANIEL CONLON, BISHOP OF

)

THE ROMAN CATHOLIC DIOCESE )

OF JOLIET, ILLINOIS, as Successor

)

Trustee Under the Provisions of the Trust )

Agreement Dated December 31, 1949; )

CATHOLIC CHARITIES DIOCESE OF ) Case No. 12-cv-3932

JOLIET, INC; THE MOST REVEREND )

THOMAS JOHN PAPROCKI, ROMAN ) Judge John W. Darrah

CATHOLIC BISHOP OF

)

SPRINGFIELD-IN-ILLINOIS;

)

CATHOLIC CHARITIES OF THE

)

DIOCESE OF SPRINGFIELD-IN-

)

ILLINOIS; CATHOLIC CHARITIES OF )

THE ARCHDIOCESE OF CHICAGO; )

and SAINT PATRICK HIGH SCHOOL, )

)

Plaintiffs,

)

)

v.

)

)

KATHLEEN SEBELIUS, in her official )

capacity as Secretary of the U.S.

)

Department of Health and Human

)

Services; HILDA SOLIS, in her official )

capacity as Secretary of the Department )

of Labor; TIMOTHY GEITHNER; in his )

official capacity as Secretary of the

)

U.S. Department of the Treasury;

)

U.S. DEPARTMENT OF HEALTH AND )

HUMAN SERVICES;

)

U.S. DEPARTMENT OF LABOR; and )

U.S. DEPARTMENT OF TREASURY, )

)

Defendants.

)

MEMORANDUM OPINION AND ORDER

Case: 1:12-cv-03932 Document #: 54 Filed: 02/08/13 Page 2 of 12 PageID #:614
On August 8, 2012, Plaintiffs filed an Amended Complaint, alleging nine separate counts against Defendants with regards to the enactment and enforcement of the Patient Protection and Affordable Care Act of 2010 (“ACA”). Plaintiffs assert that because they are Catholic, religious entities and employers, the requirements of the ACA to provide contraceptive, sterilization, and abortion services to employees violate Plaintiffs’ sincerely held religious beliefs. (Am. Compl. ¶¶ 2-5.) Specifically, Plaintiffs allege Defendants, in the enactment and enforcement of the ACA, violate the Religious Freedom Restoration Act, the First Amendment of the U.S. Constitution, and the Administrative Procedure Act. (Am. Compl. ¶¶ 200-304.) Defendants move to dismiss Plaintiffs’ Amended Complaint for lack of subject-matter jurisdiction, arguing Plaintiffs lack standing, and that the matter is not ripe for adjudication. For the reasons presented below, Defendants’ Motion to Dismiss is granted, and the Amended Complaint is dismissed without prejudice.
BACKGROUND The instant action is one of many filed across the country, challenging the legality of the ACA’s regulations regarding contraception and preventative care. In granting a similar motion to dismiss on the basis of standing and ripeness, Judge Boasberg of the District of D.C. provided a detailed explanation of the statutory history. See Belmont Abbey College v. Sebelius, 878 F. Supp. 2d 25 (D.D.C. 2012) (Belmont Abbey). The United States Department of Health and Human Services enlisted the guidance of the Institute of Medicine, a private health policy organization, to establish guidelines regarding preventative health care for the Health Resources and Services Administration
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(“HRSA”). The Institute of Medicine suggested, among other proposals, that insurance plans be required to cover contraceptives and sterilization procedures, including emergency contraceptives, such as the “morning-after” pill. Id. at 29. HRSA adopted these proposed guidelines; and, on August 1, 2011, the Department of Health and Human Services, the Department of Labor, and the Department of Treasury (“the Departments”) issued an interim final rule, requiring group insurance plans to cover the preventative services for women suggested by the Institute of Medicine. Id. at 29-30 (quoting 76 Fed. Reg. 46621; 45 C.F.R. § 147.130). According to the federal regulation, all insurance plans and policies, unless specifically exempt, must provide women coverage for contraceptive services, beginning on August 1, 2012, without any cost-sharing requirements. Id.
The Departments acknowledged the impact on the religious beliefs of some religious employers if they were required to cover contraceptive services. Wheaton College v. Sebelius, No. 12-1169, 2012 WL 3637162, at *2 (Aug. 24, 2012 D.D.C.) (Wheaton College). The interim final rule gave exemption to certain employers, including churches or religious orders, and other employers that meet the following criteria:
(1) The inculcation of religious values is the purpose of the orga nization. (2) The organization prim arily employs persons who share the religious tenets of the organization. (3) The organization serves prim arily persons who share the religious tenets of the organization. (4) The organization is a nonprofit organization as desc ribed 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)(1)(iv)(B). The Departments invited comments to the interim
3

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final rule, specifically with regards to the definition of religious employer, described

above. In response to the comments received, the Departments stated the following:

[T]he Departments are adopting the definition in the am ended interim

final regulations for purposes of these final regulations while also creating

a temporary enforcement safe harbor , discussed below. During the

temporary enforcement safe harbor, the Departm ents plan to develop and

propose changes to these final regulations that would m eet two

goals—providing contraceptive coverage without cost-sharing

to

individuals who want it and accom modating non-exempted, non-profit

organizations' religious objections to covering contraceptive services . . . .

77 Fed. Reg. 8725. The rule provides a one year “safe harbor” by which “certain non-

exempted, non-profit organizations with religious objections to covering contraceptive

services” will not be held to be in violation of the regulations for failing to cover

contraceptive services.1 77 Fed. Reg. 8728. The safe harbor remains in effect “until the 1 To qualify for the safe harbor, an organization must meet 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 consistently not provided all or the same subset of the contraceptive coverage otherwise requi red at any point, consistent with any applicable State law, because of the religious beliefs of the organization.

3. As detailed below, the group health plan established or maintained by the

organization (or another entity on behalf of the plan, such as a health

insurance issuer or third-party administrator) must provide to participants the

attached notice, as described below, which states that som

e or all

contraceptive coverage will not be provided under the plan for the first plan

year beginning on or after August 1, 2012.

4. The organi zation self-certifies that it satisfies criteria 1-3 above, and documents its self-certification in accordance with the procedures detailed herein.

U.S. Department of Health and Human Services, Guidance on the Temporary

Enforcement Safe Harbor for Certain Em ployers, Group Health Plans and

Group Health Insurance Issuers, at 3 (Aug. 15, 2012),

available at

4

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first plan year that begins on or after August 1, 2013.” Belmont Abbey, 878 F. Supp. 2d at 31 (citation omitted). During the safe harbor period, the Departments intend to “develop alternative ways of providing contraceptive coverage without cost sharing with respect to non-exempted, non-profit religious organizations with religious objections to such coverage.” 77 Fed. Reg. 8728. On March 21, 2012, the Departments issued an “Advance Notice of Proposed Rulemaking,” or “ANPRM,” whereby the Departments formally declared their intention to amend the final regulations, and invited additional comments from the public and interested parties. See 77 Fed. Reg. 16,501; Belmont Abbey, 878 F. Supp. 2d at 31. The Departments intend to finalize such amendments to the final regulations prior to the end of the safe harbor period, August 1, 2013. 77 Fed. Reg. 16,503.
“Plaintiffs are Catholic religious entities that provide a wide range of spiritual, educational, and social services” to Illinois residents, without regard to an individual’s religious beliefs. (Am. Compl. ¶ 2.) Plaintiffs Diocese of Joliet and Diocese of Springfield state they do not know if they will qualify as a “religious employer” under the federal regulations. (Am. Compl. ¶ 6.) Plaintiffs further state that Diocese of Springfield’s and Catholic Charities Springfield’s health plan is grandfathered and that those Plaintiffs are injured by their inability to change their plan as they see fit. (Resp. at 5.) All Plaintiffs allege that the enactment of the federal regulations regarding coverage of preventative care would force Plaintiffs “to provide, pay for, and/or facilitate access to abortion-inducing drugs, sterilization, and contraception, or [require] Plaintiffs to submit
http://cciio.cms.gov/resources/files/prev-services-guidance-08152012.pdf. 5

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to an intrusive governmental examination of their religious missions.” (Am. Compl. ¶ 8.) Defendants move to dismiss Plaintiffs’ Amended Complaint, asserting that
Plaintiffs’ suit should be dismissed for lack of subject-matter jurisdiction, because Plaintiffs fail to allege an imminent injury, required to establish standing. Defendants further contend that the case is not yet ripe for judicial review.
LEGAL STANDARD Federal Rule of Civil Procedure 12(b)(1) allows a party to raise as a defense, by motion, a federal court’s lack of subject-matter jurisdiction. “When reviewing a dismissal for lack of subject-matter jurisdiction . . . the district court must accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of the plaintiff.” St. John’s United Church of Christ v. City of Chicago, 502 F.3d 616, 625 (7th Cir. 2007) (quoting Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th Cir. 1999)). However, when a defendant challenges subject-matter jurisdiction, the plaintiff bears the burden of establishing jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (Lujan). A challenge of standing is a challenge to a court’s subject-matter jurisdiction; standing is an essential jurisdictional requirement. To establish standing, a plaintiff must show: a violation of a concrete, particularized legally protected interest; a causal relationship between the defendant’s conduct and the injury to the plaintiff, and an injury which can be redressed if a court finds in the plaintiff's favor. Lujan, 504 U.S. at 560-61. The nonmoving party must support the basis of the jurisdiction with competent proof of jurisdictional facts. Kontos v. U.S. Dep't of Labor, 826 F.2d 573, 576 (7th Cir. 1987).
6

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“When considering a motion that launches a factual attack against jurisdiction, ‘[t]he district court may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.’” Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443 (7th Cir. 2009) (citations omitted). In establishing standing, a plaintiff must demonstrate the threat of an “‘injury in fact’ that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical.” American Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583, 590 (7th Cir. 2012) (quoting Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)) (citations omitted). Without a certainly impending injury, standing does not exist. Sierra Club v. Marita, 46 F.3d 606, 611 (7th Cir. 1995) (citing Lujan, 504 U.S. 564; Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) (Whitmore)).
Challenges to standing may be made prior to the enforcement of a law. The “existence of a statute implies a threat to prosecute, so pre-enforcement challenges are proper, because a probability of future injury counts as ‘injury’ for the purpose of standing.” Bauer v. Shepard, 620 F.3d 704, 708 (7th Cir. 2010) (citations omitted) (Bauer).
A case may be challenged on the issue of ripeness, which, like the issue of standing, stems from the U.S. Constitution’s case-or-controversy requirement. Concerns of whether or not a case is ripe for adjudication can “arise when a case involves uncertain or contingent events that may not occur as anticipated, or not occur at all.” Wisconsin Right to Life State Political Action Comm. v. Barland, 664 F.3d 139, 148 (7th Cir. 2011)
7

Case: 1:12-cv-03932 Document #: 54 Filed: 02/08/13 Page 8 of 12 PageID #:620
(Barland). In determining if an issue is ripe for adjudication, a court considers: (1) “the fitness of the issues for judicial decision” and (2) “the hardship to the parties of withholding court consideration.” Id. (citing Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190, 201 (1983)).
ANALYSIS Standing
Defendants contend Plaintiffs lack the requisite standing to pursue their claims because they do not allege an imminent injury resulting from the ACA and related federal regulations. Specifically, Defendants argue that because of the safe harbor provision, “Defendants will not take any enforcement action against an organization that qualifies for safe harbor until the first plan year that begins on or after August 1, 2013.” (Mem. in Support of Defs.’ Mot. at 10.) However, standing is not vitiated simply because the harm is not immediate, but rather likely to occur in the near future. “Standing depends on the probability of harm, not its temporal proximity.” 520 S. Michigan Ave. Associates, Ltd. v. Devine, 433 F.3d 961, 962 (7th Cir. 2006) (520 S. Michigan Ave.) (further noting “Courts frequently engage in pre-enforcement review based on the potential cost that compliance (or bearing a penalty) creates.”). The mere fact Plaintiffs are perhaps not harmed today does not destroy the parties’ standing; it is enough for Plaintiffs to demonstrate the probability of harm in the future. See Bauer, 620 F.3d at 708. The safe harbor provision, on its face, simply delays the enforcement of the contraceptive provisions as to Plaintiffs; the provision does not “reduce the certainty of the impending injury.” Belmont Abbey, 878 F. Supp. 2d at 35.
8

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Though the safe harbor does not eliminate the possibility of an imminent injury for purposes of standing, the ANPRM issued on March 21, 2012, does impact the likely imminence of Plaintiffs’ injuries. The Government, in the ANPRM, made clear its intent to amend the regulations to address concerns, like that of Plaintiffs’, regarding employers with religious objections to contraception. 77 Fed. Reg. 16,501. The ANPRM further provided that such amendments would be implemented prior to the end of the safe harbor provision. Id. Moreover, government agencies are entitled to the presumption that they act in good faith, and no evidence has been presented to indicate the Departments will renege on the statements made regarding amendment in the ANPRM. See Starr v. Federal Aviation Administration, 589 F.2d 307, 315 (7th Cir. 1978). With an amendment to the final regulations forthcoming, Plaintiffs’ alleged injuries regarding the enforcement of the current regulations are not “certainly impending.” Belmont Abbey, 878 F. Supp. 2d at 37 (quoting Whitmore, 495 U.S. at 158.).
However, Plaintiffs also allege that, beyond the future impact at the expiration of the safe harbor, the regulations also create present injuries. Specifically, Plaintiffs argue that the current regulations impact their ability to plan their future budgets, contending that “if Plaintiffs are to comply with the law at the end of the safe harbor, they must begin taking compliance measures now or bear the risk of being unprepared.” (Resp. at 10) (emphasis in original). In support of this position, Plaintiffs rely in part upon the Seventh Circuit’s ruling in 520 S. Michigan Ave. However, 520 S. Michigan Ave. is readily distinguishable from the facts at issue here. In 520 S. Michigan Ave., an employer believed a credible threat of criminal prosecution existed if it failed to comply
9

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with a law, and no promises were made regarding the non-enforcement of the law. 520 S. Michigan Ave., 433 F.3d at 963-64. Here, the Government has clearly indicated that the present regulations will be amended. Therefore, any present injuries incurred by Plaintiffs as a result of their planning for the future, in response to regulations they know will be amended, are of their own making. Plaintiffs assert that the possibility of a change (or lack thereof) in a regulation causes Plaintiffs immediate harm, because that possibility affects their ability to plan for the future. Those claims of present injury are remote and based in conjecture; the claims do not establish an actual, concrete harm required to confer standing to Plaintiffs. See Lujan, 504 U.S. at 560.
Thus, Defendants’ Motion to Dismiss the Amended Complaint for lack of subject-matter jurisdiction on the basis of standing is granted.
Ripeness Furthermore, Plaintiffs’ claims are not ripe for adjudication. The ripeness doctrine prevents a court from engaging in a premature adjudication of an issue, particularly when an administrative decision is not yet final. See National Park Hospitality Association v. Department of the Interior, 538 U.S. 803, 807-808 (2003) (National Park). The doctrine prevents courts “from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Id. (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 148–149 (1967) overruled on other grounds (Abbott Labs); Califano v. Sanders, 430 U.S. 99, 105 (1977)).
10

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In determining if an issue is ripe for adjudication, a court considers: (1) “the fitness of the issues for judicial decision” and (2) “the hardship to the parties of withholding court consideration.” National Park, 538 U.S. at 808. Defendants argue Plaintiffs’ claims are not yet ripe because the promised accommodations regarding religious objections mean the current regulations are not truly final, rendering any judicial decision as to the legality of the current regulations premature. Plaintiffs counter that the regulations are “final rules” and, therefore, fit for pre-enforcement review. However, Plaintiffs’ position ignores the reality that the Government stated its intention in the ANPRM to amend the regulations and that the Government further represented the amendment was impending at oral argument. Hence, it is possible that the forthcoming amendments will eliminate the need for judicial review or, at the very least, impact the scope of Plaintiffs’ claims. The ANPRM demonstrates that the challenged regulations are not “sufficiently final” and, therefore, Plaintiffs’ claims are not ripe for judicial review. See Belmont Abbey, 878 F. Supp. 2d at 39.
Likewise, the hardship to Plaintiffs if the Court does not adjudicate their claims is insufficient to overcome the requirement that the claims be fit for final review. As discussed above, Plaintiffs argue they cannot properly plan for the future, particularly with regards to their budgets, due to the current state of the regulations. However, their claims of uncertainty do not meet the hardship requirement necessary to make their claims ripe for adjudication. The current regulations, considering the forthcoming amendments, do not have a direct impact on Plaintiffs’ day-to-day operations, despite Plaintiffs’ allegation that the current regulations somehow already inhibit their ability to
11

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hire employees, attract students, and solicit charitable contributions. (Am. Compl. ¶ 164.) See Bethlehem Steel Corp. v. EPA, 536 F.2d 156, 162-163 (7th Cir. 1976) (finding plaintiffs’ “claims of uncertainty in their business and capital planning are not sufficient to warrant our review of an ongoing administrative process. . . . the claims are vague and speculative.”). The necessity to postpone judicial review of Plaintiffs’ claims until the Departments have finalized the amended regulations outweighs the purported hardship to Plaintiffs in their ability to plan for contingencies. See Belmont Abbey, 878 F. Supp. 2d at 41.
Therefore, in addition to failing to assert standing necessary to establish subjectmatter jurisdiction, the claims alleged by Plaintiffs are unripe for adjudication.
CONCLUSION For the reasons set forth above, Defendants’ Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject-matter jurisdiction [31] is granted, and Plaintiff’s Complaint is dismissed without prejudice. The merits of the current preventative care regulations or proposed amended regulations cannot be reached.

Date: February 8, 2013

______________________________ JOHN W. DARRAH United States District Court Judge

12

 
 Case: 1:12-cv-3932 As of: 03/30/2014 05:54 PM CDT 1 of 10
COLE,TERMED
United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 6,1 (Chicago)
CIVIL DOCKET FOR CASE #: 1:12−cv−03932

R. Daniel Conlon, Bishop of the Roman Catholic Diocese of Joliet, Illinois, as Successor Trustee Under the Provisions of the Trust Agreement Dated December 31, 1949 et al v. Kathleen Sebelius, in her official capacity as Secretary of the U.S. Department Assigned to: Honorable John W. Darrah Cause: 05:702 Administrative Procedure Act
Plaintiff

Date Filed: 05/21/2012 Date Terminated: 02/08/2013 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

R. Daniel Conlon, Bishop of the Roman Catholic Diocese of Joliet, Illinois, as Successor Trustee Under the Provisions of the Trust Agreement Dated December 31, 1949

represented by Daniel E. Reidy Jones Day 77 West Wacker Drive Suite 3500 Chicago, IL 60601−1692 (312)782−3939 Email: dereidy@jonesday.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carol A. Hogan Jones Day 77 West Wacker Drive Suite 3500 Chicago, IL 60601−1692 (312)782−3939 Email: chogan@jonesday.com ATTORNEY TO BE NOTICED

Dennis Murashko Jones Day 77 West Wacker Dr Chicago, IL 60631 (312) 782−3939 Email: dmurashko@jonesday.com ATTORNEY TO BE NOTICED

Mark P. Rotatori Jones Day 77 West Wacker Drive Suite 3500 Chicago, IL 60601−1692 (312)782−3939 Fax: (312)782−8585 Email: mprotatori@jonesday.com ATTORNEY TO BE NOTICED

Brian Joseph Murray Jones Day 77 West Wacker Drive Suite 3500 Chicago, IL 60601−1692 (312)782−3939 Fax: (312)782−8585 Email: bjmurray@jonesday.com ATTORNEY TO BE NOTICED

Plaintiff Catholic Charities Diocese of Joliet, Inc.

represented by

Case: 1:12-cv-3932 As of: 03/30/2014 05:54 PM CDT 2 of 10

Daniel E. Reidy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carol A. Hogan (See above for address) ATTORNEY TO BE NOTICED

Dennis Murashko (See above for address) ATTORNEY TO BE NOTICED

Mark P. Rotatori (See above for address) ATTORNEY TO BE NOTICED

Brian Joseph Murray (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
The Most Reverend Thomas John Paprocki, Roman Catholic Bishop of the Diocese of Springfield−in−Illinois

represented by Daniel E. Reidy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carol A. Hogan (See above for address) ATTORNEY TO BE NOTICED

Dennis Murashko (See above for address) ATTORNEY TO BE NOTICED

Mark P. Rotatori (See above for address) ATTORNEY TO BE NOTICED

Brian Joseph Murray (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Catholic Charities of the Diocese of Springfield−in−Illinois

represented by Daniel E. Reidy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carol A. Hogan (See above for address) ATTORNEY TO BE NOTICED

Dennis Murashko (See above for address) ATTORNEY TO BE NOTICED

Mark P. Rotatori (See above for address) ATTORNEY TO BE NOTICED

Brian Joseph Murray (See above for address) ATTORNEY TO BE NOTICED

Case: 1:12-cv-3932 As of: 03/30/2014 05:54 PM CDT 3 of 10

Plaintiff Catholic Charities of The Archdiocese of Chicago
Plaintiff Saint Patrick High School

represented by Brian Joseph Murray (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Joseph Murray (See above for address) ATTORNEY TO BE NOTICED

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

represented by Benjamin Leon Berwick U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Av., NW Suite 7306 Washington, DC 20012 202 305 8573 Email: benjamin.l.berwick@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
AUSA United States Attorney's Office (NDIL) 219 South Dearborn Street Suite 500 Chicago, IL 60604 Email: USAILN.ECFAUSA@usdoj.gov ATTORNEY TO BE NOTICED
Bradley Philip Humphreys U. S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Suite 7219 Washington, DC 20530 (202) 514−3367 Email: bradley.p.humphreys@usdoj.gov ATTORNEY TO BE NOTICED
represented by Benjamin Leon Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
AUSA (See above for address) ATTORNEY TO BE NOTICED
Bradley Philip Humphreys (See above for address) ATTORNEY TO BE NOTICED
represented by Benjamin Leon Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:12-cv-3932 As of: 03/30/2014 05:54 PM CDT 4 of 10

Defendant U.S. Department of Health and Human Services
Defendant U.S. Department of Labor
Defendant U.S. Department of Treasury
Defendant Patrick J. Fitzgerald Amicus American Center For Law &Justice

AUSA (See above for address) ATTORNEY TO BE NOTICED
Bradley Philip Humphreys (See above for address) ATTORNEY TO BE NOTICED
represented by Benjamin Leon Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
AUSA (See above for address) ATTORNEY TO BE NOTICED
Bradley Philip Humphreys (See above for address) ATTORNEY TO BE NOTICED
represented by Benjamin Leon Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
AUSA (See above for address) ATTORNEY TO BE NOTICED
Bradley Philip Humphreys (See above for address) ATTORNEY TO BE NOTICED
represented by Benjamin Leon Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
AUSA (See above for address) ATTORNEY TO BE NOTICED
Bradley Philip Humphreys (See above for address) ATTORNEY TO BE NOTICED
represented by Benjamin Leon Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David W. Schopp Law Office of David Schopp 320 North Lake Street Aurora, IL 60506

Case: 1:12-cv-3932 As of: 03/30/2014 05:54 PM CDT 5 of 10
630−264−7450 Email: lodws@aol.com ATTORNEY TO BE NOTICED

Date Filed 05/21/2012
05/21/2012 05/21/2012 05/21/2012 05/21/2012 05/21/2012 05/21/2012 05/21/2012
05/21/2012
05/21/2012
05/21/2012
05/21/2012

# Docket Text
1 COMPLAINT filed by The Most Reverend Thomas John Paprocki, Roman Catholic Bishop of the Diocese of Springfield−in−Illinois, Catholic Charities Diocese of Joliet, Inc., Catholic Charities of the Diocese of Springfield−in−Illinois, R. Daniel Conlon, Bishop of the Roman Catholic Diocese of Joliet, Illinois, as Successor Trustee Under the Provisions of the Trust Agreement Dated December 31, 1949; Jury Demand. Filing fee $ 350, receipt number 0752−7170360.(Murray, Brian) (Entered: 05/21/2012)
2 CIVIL Cover Sheet (Murray, Brian) (Entered: 05/21/2012)
3 NOTIFICATION of Affiliates pursuant to Local Rule 3.2 by R. Daniel Conlon, Bishop of the Roman Catholic Diocese of Joliet, Illinois, as Successor Trustee Under the Provisions of the Trust Agreement Dated December 31, 1949 (Murray, Brian) (Entered: 05/21/2012)
4 NOTIFICATION of Affiliates pursuant to Local Rule 3.2 by Catholic Charities Diocese of Joliet, Inc. (Murray, Brian) (Entered: 05/21/2012)
5 NOTIFICATION of Affiliates pursuant to Local Rule 3.2 by The Most Reverend Thomas John Paprocki, Roman Catholic Bishop of the Diocese of Springfield−in−Illinois (Murray, Brian) (Entered: 05/21/2012)
6 NOTIFICATION of Affiliates pursuant to Local Rule 3.2 by Catholic Charities of the Diocese of Springfield−in−Illinois (Murray, Brian) (Entered: 05/21/2012)
CASE ASSIGNED to the Honorable John W. Darrah. Designated as Magistrate Judge the Honorable Jeffrey Cole. (nsf, ) (Entered: 05/21/2012)
7 ATTORNEY Appearance for Plaintiffs Catholic Charities Diocese of Joliet, Inc., Catholic Charities of the Diocese of Springfield−in−Illinois, R. Daniel Conlon, Bishop of the Roman Catholic Diocese of Joliet, Illinois, as Successor Trustee Under the Provisions of the Trust Agreement Dated December 31, 1949, The Most Reverend Thomas John Paprocki, Roman Catholic Bishop of the Diocese of Springfield−in−Illinois by Brian Joseph Murray (Murray, Brian) (Entered: 05/21/2012)
8 ATTORNEY Appearance for Plaintiffs Catholic Charities Diocese of Joliet, Inc., Catholic Charities of the Diocese of Springfield−in−Illinois, R. Daniel Conlon, Bishop of the Roman Catholic Diocese of Joliet, Illinois, as Successor Trustee Under the Provisions of the Trust Agreement Dated December 31, 1949, The Most Reverend Thomas John Paprocki, Roman Catholic Bishop of the Diocese of Springfield−in−Illinois by Daniel E. Reidy (Reidy, Daniel) (Entered: 05/21/2012)
9 ATTORNEY Appearance for Plaintiffs Catholic Charities Diocese of Joliet, Inc., Catholic Charities of the Diocese of Springfield−in−Illinois, R. Daniel Conlon, Bishop of the Roman Catholic Diocese of Joliet, Illinois, as Successor Trustee Under the Provisions of the Trust Agreement Dated December 31, 1949, The Most Reverend Thomas John Paprocki, Roman Catholic Bishop of the Diocese of Springfield−in−Illinois by Carol A. Hogan (Hogan, Carol) (Entered: 05/21/2012)
10 ATTORNEY Appearance for Plaintiffs Catholic Charities Diocese of Joliet, Inc., Catholic Charities of the Diocese of Springfield−in−Illinois, R. Daniel Conlon, Bishop of the Roman Catholic Diocese of Joliet, Illinois, as Successor Trustee Under the Provisions of the Trust Agreement Dated December 31, 1949, The Most Reverend Thomas John Paprocki, Roman Catholic Bishop of the Diocese of Springfield−in−Illinois by Dennis Murashko (Murashko, Dennis) (Entered: 05/21/2012)
11 ATTORNEY Appearance for Plaintiffs Catholic Charities Diocese of Joliet, Inc., Catholic Charities of the Diocese of Springfield−in−Illinois, R. Daniel Conlon, Bishop of the Roman Catholic Diocese of Joliet, Illinois, as Successor Trustee

Case: 1:12-cv-3932 As of: 03/30/2014 05:54 PM CDT 6 of 10

05/21/2012 05/29/2012 06/25/2012 06/29/2012 07/02/2012
07/02/2012 07/02/2012

Under the Provisions of the Trust Agreement Dated December 31, 1949, The Most Reverend Thomas John Paprocki, Roman Catholic Bishop of the Diocese of Springfield−in−Illinois by Mark P. Rotatori (Rotatori, Mark) (Entered: 05/21/2012)
SUMMONS Issued as to Hilda Solis, in her official capacity as Secretary of the U.S. Department of Labor, Kathleen Sebelius, in her official capacity as Secretary of the U.S. Department of Health and Human Services, R. Daniel Conlon, Bishop of the Roman Catholic Diocese of Joliet, Illinois, as Successor Trustee Under the Provisions of the Trust Agreement Dated December 31, 1949, The Most Reverend Thomas John Paprocki, Roman Catholic Bishop of the Diocese of Springfield−in−Illinois, Timothy Geithner, in his official capacity as Secretary of the U.S. Department of Treasury, U.S. Department of Health and Human Services, U.S. Attorney, and U.S. Attorney General (ma, ) (Entered: 05/21/2012)
12 SUMMONS Returned Executed by The Most Reverend Thomas John Paprocki, Roman Catholic Bishop of the Diocese of Springfield−in−Illinois, Catholic Charities Diocese of Joliet, Inc., Catholic Charities of the Diocese of Springfield−in−Illinois, R. Daniel Conlon, Bishop of the Roman Catholic Diocese of Joliet, Illinois, as Successor Trustee Under the Provisions of the Trust Agreement Dated December 31, 1949 as to Patrick J. Fitzgerald served on 5/23/2012, answer due 7/23/2012 (Murray, Brian) (Entered: 05/29/2012)
13 MINUTE entry before Honorable John W. Darrah: Initial status hearing set for 9/4/12 at 9:30 a.m.Mailed notice (mjc, ) (Entered: 06/26/2012)
14 ATTORNEY Appearance for Defendants Patrick J. Fitzgerald, Hilda Solis, in her official capacity as Secretary of the U.S. Department of Labor, Kathleen Sebelius, in her official capacity as Secretary of the U.S. Department of Health and Human Services, Timothy Geithner, in his official capacity as Secretary of the U.S. Department of Treasury, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury by Benjamin Leon Berwick (Berwick, Benjamin) (Entered: 06/29/2012)
15 SUMMONS Returned Executed by The Most Reverend Thomas John Paprocki, Roman Catholic Bishop of the Diocese of Springfield−in−Illinois, Catholic Charities Diocese of Joliet, Inc., Catholic Charities of the Diocese of Springfield−in−Illinois, R. Daniel Conlon, Bishop of the Roman Catholic Diocese of Joliet, Illinois, as Successor Trustee Under the Provisions of the Trust Agreement Dated December 31, 1949 as to Hilda Solis, in her official capacity as Secretary of the U.S. Department of Labor served on 5/30/2012, answer due 7/30/2012; Kathleen Sebelius, in her official capacity as Secretary of the U.S. Department of Health and Human Services served on 5/30/2012, answer due 7/30/2012; Timothy Geithner, in his official capacity as Secretary of the U.S. Department of Treasury served on 5/30/2012, answer due 7/30/2012; U.S. Department of Health and Human Services served on 5/30/2012, answer due 7/30/2012; U.S. Department of Labor served on 6/1/2012, answer due 7/31/2012; U.S. Department of Treasury served on 5/30/2012, answer due 7/30/2012 (Attachments: # 1 Certificate of Service HHS, # 2 Certificate of Service Labor, # 3 Certificate of Service Sebelius, # 4 Certificate of Service Solis, # 5 Certificate of Service Treasury, # 6 Declaration)(Murray, Brian) (Entered: 07/02/2012)
16 AFFIDAVIT of Service filed by Plaintiffs Catholic Charities Diocese of Joliet, Inc., Catholic Charities of the Diocese of Springfield−in−Illinois, R. Daniel Conlon, Bishop of the Roman Catholic Diocese of Joliet, Illinois, as Successor Trustee Under the Provisions of the Trust Agreement Dated December 31, 1949, The Most Reverend Thomas John Paprocki, Roman Catholic Bishop of the Diocese of Springfield−in−Illinois regarding Summons served on Eric. H. Holder, Jr. on 6/4/2012 (Attachments: # 1 Declaration)(Murray, Brian) (Entered: 07/02/2012)
17 MOTION by Defendants Patrick J. Fitzgerald, Hilda Solis, in her official capacity as Secretary of the U.S. Department of Labor, Kathleen Sebelius, in her official capacity as Secretary of the U.S. Department of Health and Human Services, Timothy Geithner, in his official capacity as Secretary of the U.S. Department of Treasury, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury for extension of time to Respond to Complaint (Berwick, Benjamin) (Entered: 07/02/2012)

Case: 1:12-cv-3932 As of: 03/30/2014 05:54 PM CDT 7 of 10

07/02/2012 07/09/2012
07/09/2012 08/06/2012
08/06/2012 08/06/2012
08/06/2012 08/08/2012 08/08/2012 08/08/2012
08/08/2012

18 NOTICE of Motion by Benjamin Leon Berwick for presentment of extension of time,, 17 before Honorable John W. Darrah on 8/14/2012 at 09:30 AM. (Berwick, Benjamin) (Entered: 07/02/2012)
19 MOTION by Plaintiffs Catholic Charities Diocese of Joliet, Inc., Catholic Charities of the Diocese of Springfield−in−Illinois, R. Daniel Conlon, Bishop of the Roman Catholic Diocese of Joliet, Illinois, as Successor Trustee Under the Provisions of the Trust Agreement Dated December 31, 1949, The Most Reverend Thomas John Paprocki, Roman Catholic Bishop of the Diocese of Springfield−in−Illinois for leave to file Amended Complaint (Attachments: # 1 Exhibit Amended Complaint)(Murray, Brian) (Entered: 07/09/2012)
20 NOTICE of Motion by Brian Joseph Murray for presentment of motion for leave to file,, 19 before Honorable John W. Darrah on 8/14/2012 at 09:30 AM. (Murray, Brian) (Entered: 07/09/2012)
21 MOTION by Defendants Patrick J. Fitzgerald, Hilda Solis, in her official capacity as Secretary of the U.S. Department of Labor, Kathleen Sebelius, in her official capacity as Secretary of the U.S. Department of Health and Human Services, Timothy Geithner, in his official capacity as Secretary of the U.S. Department of Treasury, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury for leave to file excess pages (Berwick, Benjamin) (Entered: 08/06/2012)
22 NOTICE of Motion by Benjamin Leon Berwick for presentment of motion for leave to file excess pages, 21 before Honorable John W. Darrah on 8/14/2012 at 09:30 AM. (Berwick, Benjamin) (Entered: 08/06/2012)
23 MOTION by Defendants Hilda Solis, in her official capacity as Secretary of the U.S. Department of Labor, Timothy Geithner, in his official capacity as Secretary of the U.S. Department of Treasury, U.S. Department of Labor, U.S. Department of Health and Human Services, U.S. Department of Treasury, Patrick J. Fitzgerald, Kathleen Sebelius, in her official capacity as Secretary of the U.S. Department of Health and Human Services to dismiss for lack of jurisdiction (Attachments: # 1 Memorandum in Support)(Berwick, Benjamin) (Entered: 08/06/2012)
24 NOTICE of Motion by Benjamin Leon Berwick for presentment of motion to dismiss/lack of jurisdiction,, 23 before Honorable John W. Darrah on 8/14/2012 at 09:30 AM. (Berwick, Benjamin) (Entered: 08/06/2012)
25 MOTION by Plaintiffs Catholic Charities Diocese of Joliet, Inc., Catholic Charities of the Diocese of Springfield−in−Illinois, R. Daniel Conlon, Bishop of the Roman Catholic Diocese of Joliet, Illinois, as Successor Trustee Under the Provisions of the Trust Agreement Dated December 31, 1949, The Most Reverend Thomas John Paprocki, Roman Catholic Bishop of the Diocese of Springfield−in−Illinois to withdraw motion for leave to file,, 19 (Murray, Brian) (Entered: 08/08/2012)
26 NOTICE of Motion by Brian Joseph Murray for presentment of motion to withdraw,, motion for relief, 25 before Honorable John W. Darrah on 8/14/2012 at 09:30 AM. (Murray, Brian) (Entered: 08/08/2012)
27 AMENDED complaint by The Most Reverend Thomas John Paprocki, Roman Catholic Bishop of the Diocese of Springfield−in−Illinois, Catholic Charities Diocese of Joliet, Inc., Catholic Charities of the Diocese of Springfield−in−Illinois, R. Daniel Conlon, Bishop of the Roman Catholic Diocese of Joliet, Illinois, as Successor Trustee Under the Provisions of the Trust Agreement Dated December 31, 1949, Catholic Charities of The Archdiocese of Chicago, Saint Patrick High School against Hilda Solis, in her official capacity as Secretary of the U.S. Department of Labor, Kathleen Sebelius, in her official capacity as Secretary of the U.S. Department of Health and Human Services, Timothy Geithner, in his official capacity as Secretary of the U.S. Department of Treasury, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury (Murray, Brian) (Entered: 08/08/2012)
28 NOTIFICATION of Affiliates pursuant to Local Rule 3.2 by Catholic Charities of The Archdiocese of Chicago re amended complaint,,, 27 (Murray, Brian) (Entered: 08/08/2012)

Case: 1:12-cv-3932 As of: 03/30/2014 05:54 PM CDT 8 of 10

08/08/2012 08/14/2012
08/21/2012
08/21/2012 08/23/2012 08/23/2012 08/23/2012 08/28/2012
08/29/2012 08/29/2012 08/31/2012 09/11/2012
10/02/2012

29 NOTIFICATION of Affiliates pursuant to Local Rule 3.2 by Saint Patrick High School re amended complaint,,, 27 (Murray, Brian) (Entered: 08/08/2012)
30 MINUTE entry before Honorable John W. Darrah: Ruling on motion hearing held. Parties' joint motion for an extension of time is moot 17 . Plaintiffs' agreed motion for leave to file an amended complaint is granted 19 . Defendants' unopposed motion for leave to file brief in excess of the page limit is granted 21 . Defendants' memorandum is moot 23 . Plaintiffs'motion to withdraw motion for leave to file amended complaint is moot 25 . Defendant's motion to dismiss, with brief in support, to be filed by 8/21/12, response by 9/11/12. Reply by 10/2/12. Status hearing set for 9/4/12 is vacated. Status hearing set for 12/5/12 at 9:30 a.m.Mailed notice (mjc, ) (Entered: 08/15/2012)
31 MOTION by Defendants Hilda Solis, in her official capacity as Secretary of the U.S. Department of Labor, Timothy Geithner, in his official capacity as Secretary of the U.S. Department of Treasury, U.S. Department of Labor, U.S. Department of Health and Human Services, U.S. Department of Treasury, Patrick J. Fitzgerald, Kathleen Sebelius, in her official capacity as Secretary of the U.S. Department of Health and Human Services to dismiss for lack of jurisdiction (Attachments: # 1 Memorandum in Support)(Berwick, Benjamin) (Entered: 08/21/2012)
32 NOTICE of Motion by Benjamin Leon Berwick for presentment of motion to dismiss/lack of jurisdiction,, 31 before Honorable John W. Darrah on 12/5/2012 at 09:30 AM. (Berwick, Benjamin) (Entered: 08/21/2012)
33 MOTION by Amicus American Center For Law &JusticeLeave To Participate as Amici Curiae in Support of Plaintiffs (Attachments: # 1 Exhibit Amici Curiae Brief)(Schopp, David) (Entered: 08/23/2012)
34 NOTICE of Motion by David W. Schopp for presentment of motion for miscellaneous relief 33 before Honorable John W. Darrah on 8/29/2012 at 09:30 AM. (Schopp, David) (Entered: 08/23/2012)
35 Corporate Disclosure Statement by American Center For Law &Justice (Schopp, David) (Entered: 08/23/2012)
36 ATTORNEY Appearance for Defendants Hilda Solis, in her official capacity as Secretary of the U.S. Department of Labor, Kathleen Sebelius, in her official capacity as Secretary of the U.S. Department of Health and Human Services, Timothy Geithner, in his official capacity as Secretary of the U.S. Department of Treasury, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury by Bradley Philip Humphreys (Humphreys, Bradley) (Entered: 08/28/2012)
37 MINUTE entry before Honorable John W. Darrah: Ruling on motion hearing held. Motion by Amicus American Center For Law &Justice Leave to Participate as Amici Curiae in Support of plaintiffs 33 is granted. Enter Order. Mailed notice (mjc, ) (Entered: 08/30/2012)
38 ORDER granting motion for leave to appear as Amici Curiae and file Amici Curiae brief Signed by the Honorable John W. Darrah on 8/29/2012.(mjc, ) (Entered: 08/30/2012)
39 ATTORNEY Appearance for Amicus American Center For Law &Justice by David W. Schopp (Schopp, David) (Entered: 08/31/2012)
40 MEMORANDUM by Catholic Charities Diocese of Joliet, Inc., Catholic Charities of The Archdiocese of Chicago, Catholic Charities of the Diocese of Springfield−in−Illinois, R. Daniel Conlon, Bishop of the Roman Catholic Diocese of Joliet, Illinois, as Successor Trustee Under the Provisions of the Trust Agreement Dated December 31, 1949, Saint Patrick High School, The Most Reverend Thomas John Paprocki, Roman Catholic Bishop of the Diocese of Springfield−in−Illinois in Opposition to motion to dismiss/lack of jurisdiction,, 31 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Murray, Brian) (Entered: 09/11/2012)
41 REPLY by Defendants Hilda Solis, in her official capacity as Secretary of the U.S. Department of Labor, Kathleen Sebelius, in her official capacity as Secretary of the

Case: 1:12-cv-3932 As of: 03/30/2014 05:54 PM CDT 9 of 10

11/13/2012 11/27/2012
11/29/2012 11/30/2012
12/03/2012 12/03/2012 12/12/2012
12/24/2012

U.S. Department of Health and Human Services, Timothy Geithner, in his official capacity as Secretary of the U.S. Department of Treasury, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury to memorandum in opposition to motion,, 40 (Berwick, Benjamin) (Entered: 10/02/2012)
42 NOTICE of Supplemental Authority by Patrick J. Fitzgerald, Hilda Solis, in her official capacity as Secretary of the U.S. Department of Labor, Kathleen Sebelius, in her official capacity as Secretary of the U.S. Department of Health and Human Services, Timothy Geithner, in his official capacity as Secretary of the U.S. Department of Treasury, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury (Berwick, Benjamin) Modified on 11/15/2012 (mjc, ). (Entered: 11/13/2012)
43 NOTICE of Supplemental Authority by Patrick J. Fitzgerald, Hilda Solis, in her official capacity as Secretary of the U.S. Department of Labor, Kathleen Sebelius, in her official capacity as Secretary of the U.S. Department of Health and Human Services, Timothy Geithner, in his official capacity as Secretary of the U.S. Department of Treasury, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury (Attachments: # 1 Exhibit Catholic Diocese of Nashville v. Sebelius)(Berwick, Benjamin) (Entered: 11/27/2012)
44 NOTICE of Supplemental Authority by Patrick J. Fitzgerald, Hilda Solis, in her official capacity as Secretary of the U.S. Department of Labor, Kathleen Sebelius, in her official capacity as Secretary of the U.S. Department of Health and Human Services, Timothy Geithner, in his official capacity as Secretary of the U.S. Department of Treasury, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury (Attachments: # 1 Exhibit Zubik v. Sebelius)(Berwick, Benjamin) (Entered: 11/29/2012)
45 RESPONSE by Plaintiffs Catholic Charities Diocese of Joliet, Inc., Catholic Charities of The Archdiocese of Chicago, Catholic Charities of the Diocese of Springfield−in−Illinois, R. Daniel Conlon, Bishop of the Roman Catholic Diocese of Joliet, Illinois, as Successor Trustee Under the Provisions of the Trust Agreement Dated December 31, 1949, Saint Patrick High School, The Most Reverend Thomas John Paprocki, Roman Catholic Bishop of the Diocese of Springfield−in−Illinois to other,, 43 , other,, 44 , other,, 42 (Murray, Brian) (Entered: 11/30/2012)
46 MINUTE entry before Honorable John W. Darrah: Status hearing set for 12/5/12 is re−set to 1/22/13 at 10:00 a.m. The Court will entertain oral argument at that time re: the pending motion to dismiss. Mailed notice(maf) (Entered: 12/03/2012)
47 MINUTE entry before Honorable John W. Darrah: Status hearing of January 22, 2013, is re−set to 10:00 a.m. on January 30, 2013.Mailed notice (mjc, ) (Entered: 12/04/2012)
48 NOTICE of Supplemental Authority by Catholic Charities Diocese of Joliet, Inc., Catholic Charities of The Archdiocese of Chicago, Catholic Charities of the Diocese of Springfield−in−Illinois, R. Daniel Conlon, Bishop of the Roman Catholic Diocese of Joliet, Illinois, as Successor Trustee Under the Provisions of the Trust Agreement Dated December 31, 1949, Saint Patrick High School, The Most Reverend Thomas John Paprocki, Roman Catholic Bishop of the Diocese of Springfield−in−Illinois (Attachments: # 1 Exhibit A)(Murray, Brian) (Entered: 12/12/2012)
49 NOTICE of Supplemental Authority by Patrick J. Fitzgerald, Hilda Solis, in her official capacity as Secretary of the U.S. Department of Labor, Kathleen Sebelius, in her official capacity as Secretary of the U.S. Department of Health and Human Services, Timothy Geithner, in his official capacity as Secretary of the U.S. Department of Treasury, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury (Attachments: # 1 Exhibit Catholic Diocese of Biloxi v. Sebelius, # 2 Exhibit Wheaton College v. Sebelius)(Berwick, Benjamin) (Entered: 12/24/2012)

Case: 1:12-cv-3932 As of: 03/30/2014 05:54 PM CDT 10 of 10

01/14/2013
01/29/2013
01/30/2013 02/08/2013
02/08/2013 02/08/2013 03/05/2013

50 NOTICE of Supplemental Authority by Patrick J. Fitzgerald, Hilda Solis, in her official capacity as Secretary of the U.S. Department of Labor, Kathleen Sebelius, in her official capacity as Secretary of the U.S. Department of Health and Human Services, Timothy Geithner, in his official capacity as Secretary of the U.S. Department of Treasury, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury (Berwick, Benjamin) (Entered: 01/14/2013)
51 NOTICE of Supplemental Authority by Patrick J. Fitzgerald, Hilda Solis, in her official capacity as Secretary of the U.S. Department of Labor, Kathleen Sebelius, in her official capacity as Secretary of the U.S. Department of Health and Human Services, Timothy Geithner, in his official capacity as Secretary of the U.S. Department of Treasury, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury (Berwick, Benjamin) (Entered: 01/29/2013)
52 MINUTE entry before Honorable John W. Darrah:Status hearing and oral argument held re: the pending motion to dismiss. Ruling by mail. Mailed notice(maf) (Entered: 01/30/2013)
53 MINUTE entry before Honorable John W. Darrah: For the reasons stated in the attached memorandum opinion and order, defendants' motion to dismiss pursuant to FRCP 12(b)(1) for lack of subject−matter jurisdiction 31 is granted; and plaintiff's complaint is dismissed without prejudice. The merits of the current preventative care regulations or proposed amended regulations cannot be reached. Enter Memorandum Opinion and Order. Civil case closed. [For further details see separate order(s).]Mailed notice (mjc, ) (Entered: 02/08/2013)
54 MEMORANDUM Opinion and Order Signed by the Honorable John W. Darrah on 2/8/2013.(mjc, ) (Entered: 02/08/2013)
55 ENTERED JUDGMENT. (mjc, ) (Entered: 02/08/2013)
56 TRANSCRIPT OF PROCEEDINGS held on 01/30/13 before the Honorable John W. Darrah. Court Reporter Contact Information: Mary M. Hacker, (312) 435−5564, Mary_Hacker@ilnd.uscourts.gov.

IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.

Redaction Request due 3/26/2013. Redacted Transcript Deadline set for 4/5/2013. Release of Transcript Restriction set for 6/3/2013. (Hacker, Mary) (Entered: 03/05/2013)