Case 5:12-cv-06744-MSG Document 1 Filed 12/04/12 Page 1 of 31

JS 44 (Rev. 09/11)

CIVIL COVER SHEET

The JS 44 civil coversheet and the infornntion contained herein neither replace nor supplerrentthe filing and service of pleadngs or other papers as required by law, except as puvided by local rules of cowt. This form, approved by the Judicial Conference of the United States inSeptember 1974, is required for the use ofthe Clerk of Court for the purpose of IllltJatmg
the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM)

I. (a) PLAINTIFFS
Conestoga Wood Specialties Corp., a PA Corporation; Norman Hahn; Norman Lemar Hahn; and Anthony H. Hahn.
(b) County of Residence of First Listed Plaintiff .L.".,aun",ca",s~t",e,,-r_ _ _ _ __ (EXCEPT IN u.s. PLAINTIFF CASES)

DEFENDANTS

Kathleen Sebelius, in her official capacity as Secretary of the United

States Department of Health and Human Services, et al.

See Attached for full list of Defendants County of Residence of First Listed Defendant

(IN U.S. PLAINTIFF CASES ONLY)

NOTE:

IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) See Attached

Attorneys (IfKnown)

II. BASIS OF JURISDICTION (place an ''X,. in One Box Only)

o I u.s. Government
Plaintiff

o 3 Federa! Question
(Us. Government Not a Party)

III. CITIZENSHIP OF PRINCIPAL PARTIES (place an "X" in One Boxfor Plaintiff)

(For Diversity Cases Only)

and One Box for Defendant)

Citizen of This State

PTF DEF

o 0 I

I Incorporated or Principal Place

PTF DEF 0 4 04

of Business In This State

~ 2 U.S. Government Defendant

o 4 Diversity
(Indicate Citizenship ofParties in Item III)

Citizen of Another State

o 2 0 2 Incorporated and Principal Place

0

of Business In Another State

0 5

Citizen or Subject of a

o 3 0 3 Foreign Nation

0 6 06

Forei Coun

IV NATURE OF SUIT (place an 'T, " in One Box Only)

r···':iPtJnf" •• DOlllTRA_n.

. A11!fiIR( IV'hw.

'~;~$ORPli\1i .

~,. ~

" Cyt

J.l.l'lllEl61>TA'll:th

o II0 Insurance o 120 Marine o 130 Miller Act o 140 Negotiable Instrnment o 150 Recovery of Overpayment

PERSONAL INJURY
o 310 Airplane o 315 Airplane Product
Liability
o 320 Assault, Libel &

& Enforcement ofJudgment

Slander

0 151 Medicare Act

o 330 Federal Employers'

0 152 Recovery of Defaulted

Liability

Student Loans (Exc!. Veterans)
o 153 Recovery of Overpayment
of Veteran's Benefits
o 160 Stockholders' Snits o 190 Other Contract o 195 Contract Product Liability o 196 Franchise

0340 Marine
o 345 Marine Product
Liability
o 350 Motor Vehicle
0355 Motor Vehicle
Product Liability
o 360 Other Personal
Injury
o 362 Personal Injury -

Med. Maloractice

o PERSONAL INJURY

625 Drug Related Seizure

o 422 Appeal 28 USC 158

0 375 False Claims Act

0 365 Personal Injury -

o of Property 21 USC 881

423 Withdrawal

o 400 State Reapportionment

Product Liability 0690 Other

28 USC 157

o 410 Antitrust

0 367 Health Carel Pharmacentical

\'> PRliltmRTVlU'

o 430 Banks and Banking o 450 Commerce

Personal Injury Product Liability

o 820 Copyrights o 830 Patent

o 460 Deportation o 470 Racketeer Influenced and

0 368 Asbestos Personal Injury Product

o 840 Trademark

Corrupt Organizations
o 480 Consumer Credit

Liability

, iI;';-;-o-:'\'h}W4ffih;',,;

o -¥J:wBffiii, 490 Cable/Sat TV

o PERSONAL PROPERTY 710 Fair Labor Standards

o 861 HIA (1395ff)

0 850 Securities/Commodities/

0 370 Other Fraud

Act

o 862 Black Lung (923)

Exchange

o 371 Truth in Lending

o o 720 LaborlMgmt. Relations

863 DIWCIDIWW (405(g» 0 890 Other Statutory Actions

0 380 Other Personal

o 740 Railway Labor Act

o 864 SSID Title XVI

0 891 Agricultural Acts

Property Damage

o 751 Family and Medical

o 865 RSI (405(g»

0 893 Enviromnental Matters

0 385 Property Damage Product Liability

Leave Act
o 790 Other Labor Litigation o 791 Empl. Ret. Inc.

0 895 Freedom ofinformation Act
0 896 Arbitration

" ,tnROPER!lD:.i i~ :.t!!SttelMlLRIGDS;';. '~\1§:F

mTFlONg

o 210 Land Condemnation

01440 Other Civil Rights

0 510 Motions to Vacate

Security Act

V$\':iBDERA! ;~SIJI'liSln;ilJi 0 899 Administrative Procedure

o 870 Taxes (U.S. Plaintiff

ActlReview or Appeal of

o 220 Foreclosure o 230 Rent Lease & Ejectment

0441 Voting
o 442 Employment

Sentence Habeas Corpus:

or Defendant)
o 871 IRS-Third Party

Agency Decision 0 950 Constitutionality of

o 240 Torts to Land

o 443 Housing!

0 530 General

26 USC 7609

State Statutes

o 245 Tort Product Liability o 290 All Other Real Property

Accommodations
o 445 Amer. wlDisabilities -
Employment

0 535 Death Penalty 0 540 Mandamus & Other 0 550 Civil Rights

:.JI'ION&KMW.
o 462 Natura1ization Application o 463 Habeas Corpus -

o 446 Amer. wlDisabilities - 0 555 Prison Condition

Alien Detainee

Other
o 448 Education

0 560 Civil Detainee Conditions of

(Prisoner Petition)
o 465 Other Innnigration

Confinement

Actions

V. ORIGIN
~ 1 Original Proceeding

(Place an "X" in One Box Only)

o 2 Removed from

0 3 Remanded from

State Court

Appellate Court

O 4 ReInstated or 0 5 Tanraonthseferrdreisdtrfircotm 0 6 Multidistrict

Reopened

s eci )

Litigation

Cite the U. S. Civil Statute under which you are filin,g (Do not cite jurisdictional statutes unless diversity):

VI. CAUSE OF ACTION 42 USC 2000bb; 1st and 5th Amend. U.S. Const., 5 USC 701

Brief description of cause:

VII. REQUESTED IN

PPACA violated reli ious beliefs of Plaintiffs

o CHECK IF THIS IS A CLASS ACTION

DEMAND $

CHECK YES only if demanded in complaint:

COMPLAINT:

UNDER FR.C.P. 23

JURY DEMAND: IX Yes 0 No

VIII. RELATED CASE(S)

IF ANY

(See inslnlctions): JUDGE

DOCKET NUMBER

IJ. \l D~ DATE\

\

FOR OFFICE USE ONLY

RECEIPT #

AMOUNT

APPLYING IFP

--------

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

JUDGE

MAG. JUDGE

Case 5:12-cv-06744-MSG Document 1 Filed 12/04/12 Page 2 of 31
Civil Cover Sheet Continued
1. PLAINTIFFS
(c) Attorneys (Firm Name, Address, and Telephone Number)
Charles W. Proctor, III, Esquire Attorney ID # 23266 Law Offices of Proctor, Lindsay & Dixon 1204 Baltimore Pike Suite 200 Chadds Ford, PA 19317 610.361.8600 Fax 610.361.8843
Randall L. Wenger Attorney ID # 86537 Independence Law Center 23 North Front Street Harrisburg, PA 17101 717.545.0600 Fax 717.545.8107
DEFENDANTS
KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; HILDA SOLIS, in her official capacity as Secretary of the United States Department of Labor; TIMOTHY GEITHNER, in his official capacity as Secretary of the United States Department of the Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; UNITED STATES DEPARTMENT OF THE TREASURY.

Case 5:12-cv-06744-MSG Document 1 Filed 12/04/12 Page 3 of 31
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Civil Action No. --------------------
CONESTOGA \VOOD SPECIALITIES CORPORATION, a PA Corporation; NORMAN HAHN; NORMAN LEMAR HAHN; and ANTHONY H. HAHN
Plaintiffs,
v.
KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; HILDA SOLIS, in her official capacity as Secretary of the United States Department of Labor; TIMOTHY GEITHNER, in his official capacity as Secretary of the United States Department ofthe Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; and UNITED STATES DEPARTMENT OF THE TREASURY;
Defendants.
VERIFIED COMPLAINT
Plaintiffs, Conestoga Wood Specialties Corporation, a Pennsylvania corporation, Norman Hahn, Norman Lemar Hahn, and Anthony H. Hahn (herein "Conestoga" or collectively, with the
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Hahns, the "Plaintiffs") by and through their attorneys, Charles W. Proctor, III, and Randall L. Wenger, state as follows:
NATURE OF THE CASE 1. In this action, the Plaintiffs seek declaratory and injunctive relief for the Defendants' violations of the Religious Freedom Restoration Act 42 U.S.C. § 2000bb et seq. (RFRA), the First and Fifth Amendments to the United States Constitution, and the Administrative Procedure Act, 5 U.S.C. § 701, et seq. (APA), by Defendants' actions in implementing the Patient Protection and Affordable Care Act of 2010 (Pub. L. 111-148 (March 23,2010), and Pub. L. 111-152 (March 30, 2010) (hereinafter "PPACA"), in ways that coerce the Plaintiffs and thousands of other conscientious individuals and entities and to engage in acts they consider sinful and immoral in violation of their most deeply held religious beliefs. 2. Plaintiffs Norman Hahn, Norman Lemar Hahn and Anthony H. Hahn, (hereinafter "the Hahns") are practicing and believing Christians. They own and operate Conestoga Wood Specialties Corporation, a Pennsylvania corporation, located at 245 Reading Road, East Earl, PA 17519 (hereinafter "Conestoga"), a wood cabinet and specialty products manufacturer, and they seek to operate Conestoga in a manner that reflects their sincerely held religious beliefs. The Hahns, based upon these sincerely held religious beliefs as formed by the moral teachings of their Mennonite Christian beliefs, believe that God requires respect for the sanctity of human life. 3. Applying this religious faith and the moral teachings of the Mennonite faith, the Hahns have concluded that it would be sinful and immoral for them to intentionally participate in, pay for, facilitate, or otherwise support any contraception with an abortifacient effect through
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health insurance coverage they offer at Conestoga. As a consequence, the Hahns provide health insurance benefits to their employees that omits such coverage of abortifacient drugs. The Hahns' plan renews each year on January 1, the next renewal date thus occurring on January 1, 2013, creating the very real potential for harm to the Plaintiffs and their sincerely held religious beliefs if forced to include such coverage.
4. With full knowledge that many religious citizens hold the same or similar beliefs, on February 15,2012 the Defendants finalized rules through the Departments ofHHS, Labor and Treasury (those rules collectively referred to hereinafter as the "Preventive Services Mandate" or the "Mandate"l) that force Plaintiffs to pay for and otherwise facilitate the insurance coverage and use of contraception with an abortifacient effect and related education and counseling. This Mandate applies to Plaintiffs solely because they wish to operate their business in the United States of America.
1 The Mandate consists of a conglomerate of authorities, including: "Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act," 77 Fed. Reg. 8725-30 (Feb. 15, 2012); the prior interim final rule found at 76 Fed. Reg. 46621-26 (Aug. 3, 2011) which the Feb. 15 rule adopted "without change"; the guidelines by Defendant HHS's Health Resources and Services Administration (HRSA), http://www.hrsa.gov/womensguidelines/, mandating that health plans include no-cost-sharing coverage of "All Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity" as part of required women's "preventive care"; regulations issued by Defendants in 2010 directing HRSA to develop those guidelines, 75 Fed. Reg. 41726 (July 19, 2010); the statutory authority found in 42 U.S.C. § 300gg-13(a)(4) requiring unspecified preventive health services generally, to the extent Defendants have used it to mandate coverage to which Plaintiffs and other employers have religious objections; penalties existing throughout the United States Code for noncompliance with these requirements; and other provisions of PPACA or its implementing regulations that affect exemptions or other aspects of the Mandate.
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5. Similarly to other religious groups and entities organized by people of faith, the Hahns believe that compliance with Defendants' Mandate would require them to violate their deeply held religious beliefs as exemplified by the moral teachings of the Mennonite Church. The Mandate illegally and unconstitutionally coerces the Plaintiffs to violate their sincerely held religious beliefs under threat of heavy fines and penalties. The Mandate also forces the Plaintiffs to fund government dictated speech that is directly at odds with the religious ethics derived from their deeply held religious beliefs and the moral teachings of the Mennonite Faith that they strive to embody in their business. Defendants' coercion tramples on the freedom of conscience of Plaintiffs and millions of other Americans to abide by their religious convictions, to comply with moral imperatives they believe are decreed by God Himself, and to contribute to society through their business in a way that is consistent with their religious ethics, deeply held religious beliefs, and the moral teachings of the Mennonite Church.
6. Defendants' refusal to accommodate the conscience of the Plaintiffs is highly selective. PPACA exempts a variety of health plans from the Mandate, and upon information and belief the government has provided thousands of exemptions from the PPACA for various entities such as large corporations. But Defendants' Mandate does not exempt Plaintiffs' plan or those of many other religious Americans.
7. Defendants' actions violate the Plaintiffs' right freely to exercise religion, protected by the Religious Freedom Restoration Act and the Religion Clauses of the First Amendment to the United States Constitution.
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8. Defendants' actions also violate the Plaintiffs' right to the freedom of speech, as secured by the Free Speech Clause of the First Amendment to the United States Constitution, and their due process rights secured by the Fifth Amendment to the United States Constitution.
9. Additionally, Defendants violated the Administrative Procedure Act, 5 U.S.C. § 553, by imposing the Mandate without prior notice or public comment, and for other reasons.
10. Plaintiffs are faced with imminent harm due to Defendants' Mandate. The Mandate by its terms forces Plaintiffs to obtain and pay for insurance coverage of the objectionable items in their January 1,2013 plan. Plaintiffs therefore will suffer irreparable harm on or before January 1, 2013, unless the Court enters declaratory and injunctive relief to protect Plaintiffs from Defendants' deliberate attack on their consciences and religious freedoms which would result from forced compliance with the Mandate.
IDENTIFICATION OF PARTIES 11. Conestoga Wood Specialties Corporation, a Pennsylvania corporation (herein "Conestoga"), doing business at 245 Reading Road, East Earl, Pennsylvania, is a family business that manufactures wood cabinets and wood specialty products. It is owned and operated as a privately held corporation principally by Plaintiffs Norman Hahn, Norman Lemar Hahn, and Anthony H. Hahn, the founder and his sons respectively, who currently manage the business. Together they possess effective ownership of and management responsibility for Conestoga. 12. Plaintiff Norman Hahn, shareholder of Plaintiff Conestoga is a member of the Conestoga Board of Directors, and serves as Vice President of the Board. 13. Plaintiff Norman Lemar Hahn is a shareholder of Plaintiff Conestoga and IS Chairman of the Board of Directors.
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14. Plaintiff Anthony H. Hahn is a shareholder of Plaintiff Conestoga and IS a member of the Board of Directors and President and Chief Executive Officer.
15. By virtue of their ownership, directorship and officer positions, the Hahn's are responsible for implementing Conestoga's compliance with Defendants' Mandate.
16. Defendants are appointed officials of the United States government and United States Executive Branch agencies responsible for issuing and enforcing the Mandate.
17. Defendant Kathleen Sebelius is the Secretary of the United States Department of Health and Human Services (HHS). In this capacity, she has responsibility for the operation and management ofHHS. Sebelius is sued in her official capacity only.
18. Defendant HHS is an executive agency of the United States government and is responsible for the promulgation, administration and enforcement of the Mandate.
19. Defendant Hilda Solis is the Secretary of the United States Department of Labor. In this capacity, she has responsibility for the operation and management of the Department of Labor. Solis is sued in her official capacity only.
20. Defendant Department of Labor is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
21. Defendant Timothy Geithner is the Secretary of the Department of the Treasury. In this capacity, he has responsibility for the operation and management of the Department. Geithner is sued in his official capacity only.
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22. Defendant Department of Treasury is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
JURISDICTION AND VENUE 23. This action arises under the Constitution and laws of the United States. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 & 1361, jurisdiction to render declaratory and injunctive relief under 28 U.S.C. §§ 2201 & 2202, 42 U.S.c. § 2000bb-1, 5 U.S.c. § 702, and Fed. R. Civ. P. 65, and to award reasonable attorney's fees and costs under the Equal Access to Justice Act, 28 U.S.C. § 2412, and 42 U.S.C. § 1988. 24. Venue lies in this district pursuant to 28 U.S.C. § 1391(e). A substantial part of the events or omissions giving rise to the claim occurred in this district, and the Plaintiffs are located in this district.
FACTUAL ALLEGATIONS I. The Hahns' Religious Beliefs and Operation of Conestoga
25. The Hahns are practicing and believing Mennonite Christians. 26. They strive to follow Mennonite ethical beliefs and religious and moral teachings throughout their lives, including in their operation of Conestoga. 27. The Hahns sincerely believe that the Mennonite faith does not allow them to violate Mennonite religious and moral teachings in their decisions operating Conestoga. They believe that according to the Mennonite faith their operation of Conestoga must be guided by ethical social principles and Mennonite religious and moral teachings, that the adherence of
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their business practice according to such Mennonite ethics and religious and moral teachings is a genuine calling from God, that their Mennonite faith prohibits them from separating their religious beliefs from their daily business practice, and that their Mennonite faith requires them to integrate the gifts of the spiritual life, the virtues, morals, and ethical and social principles of Mennonite teaching into their life and work.
28. The Mennonite Church teaches that taking of life which includes anything that terminates a fertilized embryo is intrinsic evil and a sin against God to which they are held accountable. Therefore, abortion and any abortifacient contraception that may cause an abortion is equally objectionable to the Plaintiff.
29. As a matter of religious faith the Hahns believe that these Mennonite teachings are among the religious ethical teachings they must follow throughout their lives including in their business practice.
30. Consequently, the Hahns believe that it would be immoral and sinful for them to intentionally participate in, pay for, facilitate, or otherwise support abortifacient drugs, contraception with an abortifacient effect, and related education and counseling, as would be required by the Mandate, through their inclusion in health insurance coverage offered by Conestoga.
31. Conestoga's mission statement includes the commitment that "We operate in a professional environment founded upon the highest ethical, moral, and Christian principles reflecting respect, support, and trust for our customers, our suppliers, our employees and their families."
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32. The Hahns have always operated Conestoga in accordance with their Mennonite beliefs including but not limited to the structuring of their health insurance plan.
33. As a result of their deeply held beliefs both Conestoga and the Hahn's make substantial contributions to a variety of charitable and community organizations every year above and beyond their giving to the individual churches they attend.
II. Conestoga's Health Insurance Plan 34. As part of fulfilling their vision and mission statement and religious beliefs and
commitments, Plaintiffs provide generous health insurance for their employees. 35. Conestoga has approximately 950 full-time employees throughout its various
locations in the United States. 36. The health insurance plan year for Conestoga begins on January 1 of each year,
with the next plan year starting on January 1,2013. 37. The health insurance plan that will be effective January 1, 2013 provides for
abortifacient drugs and contraception with an abortifacient effect. 38. To implement the plan for the new year beginning January 1, 2013, and/or make
substantial plan changes as a result of the Mandate, Plaintiffs must make logistical arrangements on or before December 31, 2012 in order for the plan to be arranged, reviewed, finalized and communicated to employees prior to the plan year's January 1,2013 start date.
III. The PPACA and Defendants' Mandate Thereunder 39. Under the PPACA, employers with over 50 full-time employees are required to
provide a certain minimum level of health insurance to their employees.
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40. Nearly all such plans must include "preventive services," which must be offered with no cost-sharing by the employee.
41. On February 10,2012, the Department of Health and Human Services finalized a rule (previously referred to in this Complaint as the Mandate) that imposes a definition of preventive services to include all FDA approved "contraceptive" drugs, surgical sterilization, and education and counseling for such services.
42. This final rule was adopted without giving due weight to the tens of thousands of public comments submitted to HHS in opposition to the Mandate.
43. In the category of "FDA approved contraceptives" included in this Mandate are several drugs or devices that may cause the demise of an already conceived but not yet attached human embryo, such as "emergency contraception" or "Plan B" drugs (the so called "morning after" pill).
44. The FDA approved in this same category a drug called "ella" (the so called "week after" pill), which studies show can function to kill embryos even after they have attached to the uterus, by a mechanism similar to the abortion drug RU-486.
45. The manufacturers of some such drugs, methods and devices in the category of "FDA approved contraceptive methods" indicate that they can function to cause the demise of an early human embryo.
46. The Mandate also requires group health care plans to pay for the provision of counseling, education, and other information concerning contraception (including devices and drugs such as "Plan B" and "ella" that cause early abortions or harm to human embryos) for all women beneficiaries who are capable of bearing children.
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47. The Mandate applies to the first health insurance plan year beginning after August 1,2012.
48. Thus Plaintiffs are, absent relief from this Court, subject to the Mandate's requirement of coverage of the above described items starting with Conestoga's January 1, 2013 plan.
49. The Mandate makes little or no allowance for the religious freedom of entities and individuals, including Plaintiffs, who object to paying for or providing insurance coverage for such items.
50. An entity cannot freely avoid the Mandate by simply refusing to provide health insurance to its employees, because the PPACA imposes monetary penalties on entities that would so refuse.
51. The exact magnitude of these penalties may vary according to the complicated provisions of the PPACA, but the fine is approximately $2,000 per employee per year.
52. PPACA also imposes monetary penalties if Conestoga were to continue to offer its health insurance plan to employees but continued omitting abortifacients and contraceptives with an abortifacient effect.
53. The exact magnitude of these penalties may vary according to the complicated provisions of the PPACA, but the fine is approximately $100 per day per employee, with minimum amounts applying in different circumstances.
54. If Plaintiffs do not submit to the Mandate they also trigger a range of enforcement mechanisms that exist under ERISA, including but not limited to civil actions by the Secretary of Labor or by plan participants and beneficiaries, which would include but not be limited to relief
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in the form of judicial orders mandating that Plaintiffs violate their sincerely held religious beliefs and provide coverage for items to which they religiously object.
55. The Mandate applies not only to sponsors of group health plans like Plaintiffs, but also to issuers of insurance. Accordingly, Plaintiffs cannot avoid the Mandate by shopping for an insurance plan that accommodates their right of conscience, because the Administration has intentionally foreclosed that possibility.
56. The Mandate offers the possibility of a narrow exemption to religious employers, but only ifthey meet all of the following requirements:
(1) "The inculcation of religious values is the purpose of the organization"; (2) "The organization primarily employs persons who share the religious tenets of the
organization" ; (3) "The organization serves primarily persons who share the religious tenets of the
organization"; and (4) The organization is a church, an integrated auxiliary of a church, a convention or
association of churches, or is an exclusively religious activity of a religious order, under Internal Revenue Code 6033(a)(1) and (a)(3)(A). 57. Plaintiffs are deemed not "religious" enough by the Defendants under this definition in several respects, including but not limited to because they have purposes other than the "inculcation of religious values," they do not primarily hire or serve Mennonites, and because Conestoga is not a church, integrated auxiliary of a particular church, convention or association of a church, or the exclusively religious activities of a religious order. 58. The Mandate fails to protect the statutory and constitutional conscience rights of religious Americans like Plaintiffs even though those rights were repeatedly raised in the public comments.
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59. The Mandate requires that Plaintiffs provide coverage for abortifacient methods and contraception with a possible abortifacient effect and counseling related to the same, against their conscience and in violation of their religious beliefs, in a manner that is contrary to law.
60. The Mandate constitutes government-imposed coercion on Plaintiffs to change or violate their sincerely held religious beliefs.
61. The Mandate exposes Plaintiffs to substantial fines for refusal to change or violate their religious beliefs.
62. Plaintiffs have a sincere conscientious religious objection to providing coverage for abortifacients and contraception with an abortifacient effect and related education and counseling.
63. The Mandate does not apply equally to all religious adherents or groups. 64. PPACA and the Mandate are not generally applicable because they provide for numerous exemptions from their rules. 65. For instance, the Mandate does not apply to members of a "recognized religious sect or division" that conscientiously objects to acceptance of public or private insurance funds. See 26 U.S.c. §§ 5000A(d)(2)(a)(i) and (ii). Plaintiffs do not meet this exemption. 66. In addition, as described above, the Mandate exempts certain churches narrowly considered to be religious employers. 67. Furthermore, the PPACA creates a system of individualized exemptions because under the PPACA's authorization the federal government has granted discretionary compliance waivers to a variety of businesses for purely secular reasons.
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68. The Mandate does not apply to employers with preexisting plans that are "grandfathered. "
69. Conestoga's plan is not grandfathered under PPACA, nor will its plan year that starts on January 1,2013 have grandfathered status.
70. The Mandate does not apply through the employer mandate to employers having fewer than 50 full-time employees.
71. President Obama held a press conference on February 10,2012, and later (through Defendants) issued an "Advanced Notice of Proposed Rulemaking" ("ANPRM") on March 21, 2012 (77 Fed. Reg. 16501-08), claiming to offer a "compromise" under which some religious non-profit organizations not meeting the above definition would still have to comply with the Mandate, but by means of the employer's insurer offering the employer's employees the same coverage for "free."
72. This "compromise" is not helpful to Plaintiffs because, among other reasons, Conestoga is not a non-profit entity.
73. The ANPRM is neither a rule, a proposed rule, nor the specification of what a rule proposed in the future would actually contain. It in no way changes or alters the final status of the February 15, 2012 Mandate. It does not even create a legal requirement that Defendants change the Mandate at some time in the future.
74. On February 10,2012 a document was also issued from the Center for Consumer Information and Insurance Oversight (CClIO), Centers for Medicare & Medicaid Services (CMS), of HHS, entitled "Guidance on the Temporary Enforcement Safe Harbor for Certain Employers, Group Health Plans and Group Health Insurance Issuers with Respect to the
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Requirement to Cover Contraceptive Services Without Cost Sharing Under Section 2713 of the Public Health Service Act, Section 715(a)(1) of the Employee Retirement Income Security Act, and Section 9815(a)(1) ofthe Internal Revenue Code."
75. Under this "Guidance," an organization that truthfully declares "I certify that the organization is organized and operated as a non-profit entity; and that, at any point from February 10,2012 onward, contraceptive coverage has not been provided by the plan, consistent with any applicable State law, because of the religious beliefs of the organization," and that provides a specified notice to plan participants, will not "be subject to any enforcement action by the Departments for failing to cover recommended contraceptive services without cost sharing in non-exempted, non-grandfathered group health plans established or maintained by an organization, including a group or association of employers within the meaning of section 3(5) of ERISA, (and any group health insurance coverage provided in connection with such plans)," until "the first plan year that begins on or after August 1,2012."
76. The "Guidance" categorically disqualifies Plaintiffs from making use of this "extra year" because, among other reasons, Conestoga is not a non-profit entity.
77. Therefore while President Obama's "compromise" and guidance purport to accommodate the religious beliefs of even more groups beyond the Mandate's initial exemption for churches, none of these measures will stop the Mandate from imposing its requirements on Plaintiffs' plan year beginning January 1,2013.
78. The Mandate will have a profound and adverse effect on Plaintiffs and how they negotiate contracts and compensate their employees.
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79. Any alleged interest Defendants have in providing free FDA-approved contraception and abortifacients without cost-sharing could be advanced through other, more narrowly tailored mechanisms that do not burden the religious beliefs of Plaintiffs and do not require them to provide or facilitate coverage of such items through their health plan.
80. Without injunctive and declaratory relief as requested herein, including preliminary injunctive relief issued on or before December 31, 2012, Plaintiffs are suffering and will continue to suffer irreparable harm.
81. Plaintiffs have no adequate remedy at law. IV. Additional Factual Allegations
82. Conestoga's plan covers pregnancy related expenses, such as prenatal and post partum care, delivery, newborn care, routine GYN care including Pap test, mammogram annual screening, well woman visits, screening for gestational diabetes, human papilloma virus testing, human immunodeficiency virus screening and breast feeding support and supplies among other things. The plan does not consider pregnancy an excluded pre-existing condition.
83. Conestoga's plan has a wellness program for employees which includes promoting the health of women during and after pregnancy.
84. Conestoga's plan is not grandfathered under PPACA because for the January 2011 plan year, Conestoga did not provide notification to plan participants that its plan was considered grandfathered (because the plan was not considered grandfathered).
85. It would significantly injure Plaintiffs and their employees to require them to wait beyond December 31, 2012 to know whether their January 1, 2013 health plan will cover the items required by the Mandate.
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86. Plaintiffs' decision on the plan's terms must be made based on knowing what items the plan will or will not cover and what levels of employee contributions will be needed to meet Conestoga's budget based on what services and supplies are covered by the plan.
87. If Plaintiffs were forced to add no cost sharing "contraceptives" including those that act to destroy early embryos, as well as patient education and counseling in facilitation of the aforementioned, all of which are required by the Mandate, Plaintiffs would have to take that inclusion into account at the time they decide what coverages and employee contributions the budget of Conestoga can afford.
88. Adding the Mandated items will require Conestoga to either eliminate coverage of other services included in the plan, increase employee contributions or possibly both.
89. Therefore, if Plaintiffs are not afforded prompt injunctive relief against the Mandate, they and their employees face imminent and irreparable injury.
90. On October 31, 2012, the Board of Directors adopted "The Hahn Family Statement on the Sanctity of Human Life." The statement provides that:
"The Hahn family believes that the Bible is the inspired, infallible and authoritative written Word of God, the one and only eternal God. Found in the Bible, Exodus 20:13 (NIV) as one of the "Ten Commandments", God commands, "You shall not kill." Found in the Bible, Psalms, 139:13-16 (NIV), the writer acknowledges God in how he was made and says ... " 13For you created my inmost being; you knit me together in my mother's womb. 141 will praise you because I am fearfully and wonderfully made; your works are wonderful, I know that full well. 15My frame was not hidden from you when I was made in the secret place, when I was woven together in the depths of the earth. 16your eyes saw my unformed body; all the days obtained for me were written in your book before one of them came to be." The Hahn Family believes that human life begins at conception (at the point where an egg and sperm unite) and that it is a sacred gift from God and only God has the right to
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terminate human life. Therefore it is against our moral conviction to be involved in the termination of human life through abortion, suicide, euthanasia, murder, or any other acts that involve the deliberate taking of human life."
FIRST CLAIM FOR RELIEF Violation of the Religious Freedom Restoration Act
42 U.S.C. § 2000bb 91. Plaintiffs restate all matters set forth in the preceding paragraphs and incorporate them herein by reference. 92. Plaintiffs' sincerely held religious beliefs prohibit them from providing coverage for abortifacients and contraception with a possible abortifacient effect as well as education and counseling promoting the same in their employee health plan. 93. When Plaintiffs comply with Mennonite and personally held ethical and moral teachings on abortifacients and with their sincerely held religious beliefs, they exercise religion within the meaning of the Religious Freedom Restoration Act. 94. The Mandate imposes a substantial burden on Plaintiffs' religious exercise and coerces them to change or violate their sincerely held religious beliefs. 95. The Mandate chills Plaintiffs' religious exercise within the meaning ofRFRA. 96. The Mandate exposes Plaintiffs to substantial fines and/or financial burdens for their religious exercise. 97. The Mandate furthers no compelling governmental interest and is not narrowly tailored to any compelling governmental interest. 98. The Mandate is not the least restrictive means of furthering Defendants' stated interests. 99. The Mandate violates RFRA.
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WHEREFORE, the Plaintiffs pray for the relief set forth below in the prayer for relief.
SECOND CLAIM FOR RELIEF Violation of Free Exercise Clause of the First Amendment
to the United States Constitution 100. Plaintiffs restate all matters set forth in the preceding paragraphs and incorporate them herein by reference. 101. Plaintiffs' sincerely held religious beliefs prohibit them from providing coverage for abortifacients, contraception with even a possible abortifacient effect, and education and counseling promoting the same in their employee health plan. 102. When Plaintiffs comply with Mennonite and personally held ethical and moral teachings on abortifacients and with their sincerely held religious beliefs, they exercise religion within the meaning of the Free Exercise Clause. 103. The Mandate is not neutral and is not generally applicable. 104. Defendants have created categorical exemptions and individualized exemptions to the Mandate. 105. The Mandate furthers no compelling governmental interest. 106. The Mandate is not the least restrictive means of furthering Defendants' stated interests. 107. The Mandate coerces Plaintiffs to change or violate their sincerely held religious beliefs. 108. The Mandate chills Plaintiffs' religious exercise. 109. The Mandate exposes Plaintiffs to substantial fines and/or financial burdens for their religious exercise.
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110. The Mandate imposes a substantial burden on Plaintiffs' religious exercise. 111. The Mandate is not narrowly tailored to any compelling governmental interest. 112. By design, Defendants framed the Mandate to apply to some religious Americans but not to others, resulting in discrimination among religions. 113. Defendants have created exemptions to the Mandate for some religious believers but not others based on characteristics of their beliefs and their religious exercise. 114. Defendants designed the Mandate, the religious exemption thereto, and the "compromise" and guidance allowances thereto, in a way that makes it impossible for Plaintiffs and other similar religious Americans to comply with their sincerely held religious beliefs. 115. Defendants promulgated both the Mandate and the religious exemption/allowances with the purpose and intent to suppress the religious exercise of Plaintiffs and others. 116. The Mandate violates Plaintiffs' rights secured to them by the Free Exercise Clause of the First Amendment ofthe United States Constitution. WHEREFORE, the Plaintiffs pray for the relief set forth below in the prayer for relief.
THIRD CLAIM FOR RELIEF Violation of the Establishment Clause of the First Amendment to the United States Constitution 117. Plaintiffs restate all matters set forth in the preceding paragraphs and incorporate them herein by reference. 118. The First Amendment's Establishment Clause prohibits the establishment of any religion and/or excessive government entanglement with religion.
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119. To determine whether religious persons or entities like Plaintiffs are required to comply with the Mandate, are required to continue to comply with the Mandate, are eligible for an exemption or other accommodations, or continue to be eligible for the same, Defendants must examine the religious beliefs and doctrinal teachings of persons or entities like Plaintiffs.
120. Obtaining sufficient information for the Defendants to analyze the content of Plaintiffs' sincerely held religious beliefs requires ongoing, comprehensive government surveillance that impermissibly entangles Defendants with religion.
121. The Mandate discriminates among religions and among denominations, favoring some over others, and exhibits a hostility to religious beliefs.
122. The Mandate adopts a particular theological view of what is acceptable moral complicity in provision of abortifacients and imposes it upon all people of religion who must either conform their consciences or suffer penalty.
123. The Mandate violates Plaintiffs' rights secured to them by the Establishment Clause of the First Amendment of the United States Constitution.
WHEREFORE, the Plaintiffs pray for the relief set forth below in the prayer for relief.
FOURTH CLAIM FOR RELIEF Violation of the Free Speech Clause of the First Amendment
to the United States Constitution 124. Plaintiffs restate all matters set forth in the preceding paragraphs and incorporate them herein by reference. 125. Defendants' requirement of provision of insurance coverage for education and counseling regarding contraception with an abortifacient effect and other abortion causing drugs forces Plaintiffs to speak in a manner contrary to their religious beliefs.
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126. Defendants have no narrowly tailored compelling interest to justify this compelled speech.
127. The Mandate violates Plaintiffs' rights secured to them by the Free Speech Clause of the First Amendment of the United States Constitution.
WHEREFORE, the Plaintiffs pray for the relief set forth below in the prayer for relief. FIFTH CLAIM FOR RELIEF
Violation of the Due Process Clause of the Fifth Amendment to the United States Constitution 128. Plaintiffs restate all matters set forth in the preceding paragraphs and incorporate them herein by reference. 129. Because the Mandate sweepingly infringes upon religious exercise and speech rights that are constitutionally protected, it is unconstitutionally vague and overbroad in violation of the due process rights of Plaintiffs and other parties not before the Court. 130. Persons of common intelligence must necessarily guess at the meaning, scope, and application of the Mandate and its exemptions. 131. This Mandate lends itself to discriminatory enforcement by government officials in an arbitrary and capricious manner. 132. The Mandate vests Defendants with unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations meeting whatever definition of "religious employers" it decides to craft. 133. This Mandate is an unconstitutional violation of Plaintiffs' due process rights under the Fifth Amendment to the United States Constitution. WHEREFORE, the Plaintiffs pray for the relief set forth below in the prayer for relief.
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SIXTH CLAIM FOR RELIEF Violation of the Administrative Procedure Act 134. Plaintiffs restate all matters set forth in the preceding paragraphs and incorporate them herein by reference. 135. Because they did not give proper notice and an opportunity for public comment, Defendants did not take into account the full implications of the regulations by completing a meaningful consideration of the relevant matter presented. 136. Defendants did not consider or respond to the voluminous comments they received in opposition to the interim final rule. 137. Therefore, Defendants have taken agency action not in accordance with procedures required by law, and Plaintiffs are entitled to relief pursuant to 5 U.S.C. § 706(2)(D). 138. In promulgating the Mandate, Defendants failed to consider the constitutional and statutory implications of the Mandate on Plaintiffs and similar persons. 139. Defendants' explanation (and lack thereof) for its decision not to exempt Plaintiffs and similar religious organizations from the Mandate runs counter to the evidence submitted by religious Americans during the comment period. 140. Thus, Defendants' issuance of the Mandate was arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because the Mandate fails to consider the full extent of its implications and it does not take into consideration the evidence against it.
141. As set forth above, the Mandate violates RFRA and the First and Fifth Amendments.
142. The Mandate is also contrary to the provisions of the PPACA which states that "nothing in this title"-i.e., title I of the Act, which includes the provision dealing with
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"preventive services"-"shall be construed to require a qualified health plan to provide coverage of [abortion] services ... as part of its essential health benefits for any plan year." Section 1303(b)(l)(A). Some drugs included as "FDA approved contraceptives" under the Mandate cause abortions by causing the demise of human embryos before and/or after attachment to the uterus.
143. The Mandate is also contrary to the provisions of the Weldon Amendment of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act of 2009, Public Law 110 329, Div. A, Sec. 101, 122 Stat. 3574, 3575 (Sept. 30, 2008), which provides that "[n]one of the funds made available in this Act [making appropriations for Defendants Department of Labor and Health and Human Services] may be made available to a Federal agency or program ... if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions."
144. The Mandate also violates the provisions of the Church Amendment, 42 U.S.C. § 300a-7(d), which provides that "No individual shall be required to perform or assist in the performance of any part of a health service program or research activity funded in whole or in part under a program administered by the Secretary of Health and Human Services if his performance or assistance in the performance of such part of such program or activity would be contrary to his religious beliefs or moral convictions."
145. The Mandate is contrary to existing law and is in violation of the APA under 5 U.S.C. § 706(2)(A)f.
WHEREFORE, the Plaintiffs pray for the relief set forth below in the prayer for relief.
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PRAYER FOR RELIEF Plaintiffs respectfully request the following relief: 146. That this Court enter a judgment declaring the Mandate and its application to Plaintiffs and others similarly situated but not before the Court to be an unconstitutional violation of their rights protected by RFRA, the Free Exercise, Establishment, and Free Speech Clauses of the First Amendment to the United States Constitution, the Due Process Clause of the Fifth Amendment to the United States Constitution, and the Administrative Procedure Act, and therefore invalid in any way applicable to them; 147. That this Court enter a preliminary and a permanent injunction prohibiting Defendants from applying the Mandate to Plaintiffs, their insurance carrier, or any person similarly situated, but not before the Court in a way that substantially burdens the religious belief of Plaintiffs or any person in violation of RFRA and the Constitution, and prohibiting Defendants from continuing to illegally discriminate against Plaintiffs and others not before the Court by requiring them to provide health insurance coverage for abortifacients and contraception with an abortifacient effect and education and counseling promoting the same to their employees; 148. That this Court award Plaintiffs court costs and reasonable attorney's fees, as provided by the Equal Access to Justice Act and RFRA (as provided in 42 U.S.C. § 1988); 149. That this Court grant such other and further relief as to which the Plaintiffs may be entitled.
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150. Plaintiffs demand a jury trial on all issues qualified for trial. Respectfully submitted this 4th day of December, 2012.
Attorneysfor Plaintiffs:

Randall L. enger, squire PA Attorney ID Number: 86537 Independence Law Center 23 North Front Street Harrisburg, PA 17101 717-545-0600 (phone) 717-545-8107 (fax) rwenger@indlawcenter.org

Charles W. Proctor, III, Esquire PA Attorney ID Number: 23266 Law Offices of Proctor Lindsay & Dixon 1204 Baltimore Pike, Suite 200 Chadds Ford, PA 19317 610-361-8600 (phone) 610-361-8843 (fax) cproctor@cplawl.com

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Case 5:12-cv-06744-MSG Document 1 Filed 12/04/12 Page 29 of 31

- - ... -.

--------------~-~--

VERIFICATION OF VERIFIED COMPLAINT PURSUANT TO 28 U.S.C. § 1746+
I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.
Executed on ,2-HlJ~ :3 t' -:2,0I:t
Norman Hahn

27

Case 5:12-cv-06744-MSG Document 1 Filed 12/04/12 Page 30 of 31 VERIFICATION OF VERIFIED COMPLAINT PURSUANT TO 28 U.S.C. § 1746+
I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.
Executed on Novev......b<:>r 3S 20.1"'2Norman Lemar ffihn
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Case 5:12-cv-06744-MSG Document 1 Filed 12/04/12 Page 31 of 31 VERIFICATION OF VERIFIED COMPLAINT PURSUANT TO 28 U.S.C. § 1746t
I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. Executed on fitJlkw.bef 30 , ZoL7-
/
29

 
 Case 5:12-cv-06744-MSG Document 35 Filed 12/28/12 Page 1 of 6

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

CONESTOGA WOOD SPECIALITIES :

CORPORATION, et al.

:

:

:

v.

:

:

KATHLEEN SEBELIUS, et al.

:

CIVIL ACTION NO. 12-6744

ORDER AND NOW, this 28th day of December, 2012, following a telephone conference and upon consideration of Plaintiffs’ “Motion for Preliminary Injunction” (Doc. No. 7) and Defendants’ response in opposition, we find as follows: 1. Plaintiffs, Conestoga Wood Specialities Corp. (“Conestoga”), Norman Hahn,
Norman Lemar Hahn and Anthony Hahn (“the Hahns”) have brought suit against Kathleen Sebelius, in her official capacity as Secretary of the United States Department of Health and Human Services, and other government officials and agencies, alleging that certain Women’s Preventive Healthcare regulations passed pursuant to the Patient Protection and Affordable Care Act (“ACA”) violate the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb, the Free Exercise, Establishment and Free Speech Clauses of the First Amendment, the Due Process Clause of the Fifth Amendment, and the Administrative Procedure Act, 5 U.S.C. § 551, et seq. 2. The Women’s Preventive Healthcare regulations, which Plaintiffs refer to as “the Mandate,” require non-exempt employers to provide health insurance coverage for
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all contraception methods approved by the Food and Drug Administration, including
contraception that may have an abortifacient effect, such as Plan B, also known as the “morning after pill.”1 The Hahns are practicing Mennonite Christians, who believe
“that it would be sinful and immoral for them to intentionally participate in, pay for,
facilitate, or otherwise support any contraception with an abortifacient effect through
health insurance coverage they offer at Conestoga.” (Compl., Doc. No. 1, ¶¶ 3, 4.)
3. Plaintiffs filed their Complaint on December 4, 2012, and subsequently filed a
“Motion for Preliminary Injunction” on December 7, 2012. (Doc. No. 7.)
Defendants’ response to Plaintiffs’ motion was submitted December 19, 2012. (Doc.
No. 30.)
4. This case, and Plaintiffs’ motion for a preliminary injunction, involve complex issues
of first impression regarding the ACA, which no other court in this Circuit has
decided. Courts from outside of this Circuit who have considered the issues raised here have reached different results. 2
1See 42 U.S.C. § 300gg-13(a)(4) (stating that a group health plan must provide coverage, without any cost sharing, to women for “preventive care and screenings” as provided for in the guidelines prepared by the Health Resources and Services Administration (“HRSA”)); 77 F.R. 872501 (Feb. 15, 2012) (adopting the HRSA guidelines, defining women’s preventive healthcare to include “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.”)
2Compare O’Brien v. U.S. Dept. of Health and Human Svcs., Dkt. No. 12-cv-467, Doc. No. 53 (8th Cir., Nov. 28, 2012) (granting “[a]ppellants’ motion for stay pending appeal”); Tyndale House Publishers, Inc. v. Sebelius, 2012 WL 5817323 (D.D.C., Nov. 16, 2012) (granting a preliminary injunction); Legatus v. Sebelius, 2012 WL 5359630 (E.D. Mich., Oct. 31, 2012) (same); Newland v. Sebelius, 2012 WL 3069154 (D. Colo, July 27, 2012) (same) with Hobby Lobby Stores, Inc. v. Sebelius, Dkt. No. 12-6294, Doc. No. 25 (10th Cir., Dec. 20, 2012) (denying plaintiffs’ motion for injunction pending appeal); Korte v. U.S. Dept. of Health & Human Svcs., 2012 WL 6553996 (S.D. Ill., Dec. 14, 2012) (denying preliminary injunction); Hobby Lobby Stores, Inc. v.
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5. Presently, the record before the Court is not complete in that Plaintiffs are in the process of supplementing the record with additional evidence and stipulated facts. Further, neither an evidentiary hearing nor oral argument has been held.
6. The parties agree that Plaintiffs do not meet any exemption under the ACA, and are required to comply with the Women’s Preventive Healthcare regulations on or before January 1, 2013. If Plaintiffs do not purchase the required coverage by that date, they face penalties of $100 per employee per day, or $95,000 a day. 26 U.S.C. § 4980D.
7. Given the impending deadline, the incomplete record, the fact that no courtroom proceedings have occurred, and because this case presents complex issues of first impression, we will grant a temporary restraining order pending a hearing and oral argument on Plaintiffs’ motion for preliminary injunctive relief.
8. Under Federal Rule of Civil Procedure 65, in order for the Court to enter a temporary restraining order, a plaintiff must demonstrate “(1) a likelihood of success on the merits; (2) the probability of irreparable harm if the relief is not granted; (3) that granting injunctive relief will not result in even greater harm to the other party; and (4) that granting relief will be in the public interest.” Pileggi v. Aichele, 843 F. Supp. 2d 584, 592 (E.D. Pa. 2012) (citing Bieros v. Nicola, 857 F. Supp. 445, 446 (E.D. Pa. 1994)).
9. “A likelihood does not mean more likely than not.” Singer Management Consultants, Inc. v. Milgram, 650 F.3d 223, 229 (3d Cir. 2011). Instead, a plaintiff need only have
Sebelius, 2012 WL 5844972 (W.D. Okla. Nov. 19, 2012) (same); O’Brien v. U.S. Dept. of Health & Human Svcs., 2012 WL 4481208 (E.D. Mo., Sept. 28, 2012) (granting motion to dismiss for failure to state a claim).
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“shown a reasonable probability of success on the merits.” American Exp. Travel Related Svcs., Inc. v. Sidamon-Eristoff, 669 F.3d 359, 366 (3d Cir. 2012). In light of the opinions of several courts favoring Plaintiffs’ position in this case, we find that Plaintiffs have demonstrated a reasonable probability of success on the merits of their RFRA claim. While additional evidence is necessary to determine whether Plaintiffs’ likelihood of success is sufficient to justify an injunction for the duration of the litigation, we find it to be adequate to warrant temporary relief pending a preliminary injunction hearing. 10. “Irreparable harm is injury that cannot adequately be compensated by monetary relief.” Coventry First, LLC v. Ingrassia, 2005 WL 1625042, at *11 (E.D. Pa., July 11, 2005) (citation omitted). The threatened harm must be imminent. Feldman & Pinto, P.C. v. Seithel, 2011 WL 6758460, at *14 (E.D. Pa., Dec. 22, 2011). “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). This principle extends to the RFRA, “which covers the same types of rights as those protected under the Free Exercise Clause of the First Amendment.” Tyndale House Publishers, Inc. v. Sebelius, 2012 WL 5817323, at *18 (D.D.C., Nov. 16, 2012). Within a matter of days, Plaintiffs will have to decide between paying substantial fines or committing an act which they have shown to have a likelihood of violating their rights to religious freedom. Therefore, we find that Plaintiffs have shown imminent, irreparable harm. 11. We also find that the risk of harm to Plaintiffs outweighs the risk of harm to
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Defendants. Although we recognize that Defendants have a substantial interest in carrying out the mandates of the ACA, a brief stay presents only a minimal burden on that interest. 12. Finally, the public interest favors temporary injunctive relief. “There is undoubtedly [ ] a public interest in ensuring that the rights secured by the First Amendment and, by extension, the RFRA, are protected.” Id. at *19. That interest also weighs in favor of preventing the potential infringement of Plaintiffs’ religious rights until the Court has had the opportunity to fully consider the evidence and issues raised by Plaintiffs’ motion. 13. Although the Court notes Defendants’ objection to this temporary stay, we find that the requirements for a temporary restraining order under Rule 65(b) are satisfied, and that the circumstances justify maintaining the status quo by staying enforcement of the requirements identified by Plaintiffs for a period of fourteen days.3
3We recognize that Rule 65(c) requires a movant to “give[] security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” FED. R. CIV. P. 65(c). However, the Third Circuit has held that the security requirement may be excused where “complying with the [TRO] raises no risk of monetary loss to the defendant.” Zambelli Fireworks Mfg. Co., Inc. v. Wood, 592 F.3d 412, 426 (3d Cir. 2010) (quotations and citations omitted). Here, maintaining the status quo does not present a risk of monetary loss to the Government. The Government’s interest in having Plaintiffs provide this healthcare relates to the public welfare, and not monetary gain.
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WHEREFORE, it is hereby ORDERED that Defendants are TEMPORARILY RESTRAINED from enforcing the Women’s Preventive Healthcare regulations regarding abortifacient contraception and counseling, enacted pursuant to 42 U.S.C. § 300gg-13(a)(4) and 77 F.R. 8725-01 (Feb. 15, 2012), against Plaintiffs, their group health plan and the group health insurance coverage provided in connection with that plan, for a period of fourteen (14) days. This Order applies only to requirements regarding the provision of insurance coverage for the contraceptive services to which Plaintiffs object on religious grounds. It should not be construed as applying to any other healthcare coverage required by law, including coverage of the other services required by the regulations regarding Women’s Preventive Healthcare.
IT IS FURTHER ORDERED that an evidentiary hearing and oral argument on Plaintiffs’ “Motion for Preliminary Injunction” (Doc. No. 7) will be held on January 4, 2013 at 10:00a.m. in Courtroom 4B.
BY THE COURT: /s/ Berle M. Schiller _________________________ For Mitchell S. Goldberg, J.
6

 
 Case 5:12-cv-06744-MSG Document 7 Filed 12/07/12 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Civil Action No. 5:12-cv-06744-MSG CONESTOGA WOOD SPECIALITIES CORPORATION, a PA Corporation; NORMAN LEMAR HAHN; and ANTHONY H. HAHN
Plaintiffs, v. KATHLEEN SEBELIUS, in her official capacity as Secretary ofthe United States Department of Health and Human Services; HILDA SOLIS, in her official capacity as Secretary of the United States Department of Labor; TIMOTHY GEITHNER, in his official capacity as Secretary ofthe United States Department ofthe Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; and UNITED STATES DEPARTMENT OF THE TREASURY;
Defendants.
MOTION FOR PRELIMINARY INJUNCTION
Plaintiffs, by and through their attorneys, hereby move this Court to enter a Preliminary Injunction on or before January 1, 2013. The individual Plaintiffs own and manage Conestoga Wood Specialties Corporation. Plaintiffs request a preliminary injunction against Defendants and their mandate that requires Plaintiffs to provide, contrary to Plaintiffs sincerely held religious
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Case 5:12-cv-06744-MSG Document 7 Filed 12/07/12 Page 2 of 2

beliefs. coverage in their business's employee health benefits plan of abortifacient, contraception, and education and counseling for the same. In support of this motion, Plaintiffs rely upon F.R.C.P. 65, any and all other applicable law and their supporting Brief in Support of Motion for Preliminary Injunction submitted with this Motion.
Plaintiffs further move that any requirement for a bond be waived. Under appropriate circumstances, the requirements for a bond may be excused, notwithstanding the literal language of Rule 65(c). Plainitffs believe and therefore avers that the circumstances in the instant matter meet that criteria. Powelton Civic Home Owners Ass 'n v. Dep't of Housing and Urban Development, 284 F. Supp. 809, 840 (E.D.Pa. 1968). Importantly here, cases raising constitutional issues are particularly approporiate for a waiver of the bond requirement. See e.g., Johnston v. Tampa Sports Authority, 2006 WL 2970431, at *1 (M.D.Fla. Oct. 16, 2006); Ogden v. Marendt, 264 F.Supp.2d 785, 795 (S.D.Ill. 2003); Smith v. Bd Of Election Comm'rs, 591 F.Supp. 70, 71 (N.D. Ill. 1984).
Respectfully submitted this 7th day of December, 2012. Attorneysfor Plaintiffs:

lsi Randall L. Wenger Randall L. Wenger, Esquire PA Attorney ID Number: 86537 Independence Law Center 23 North Front Street Harrisburg, PA 17101 717-545-0600 (phone) 717-545-8107 (fax) rwenger@indlawcenter.org

lsi Charles W Proctor, III Charles W. Proctor, III, Esquire PA Attorney ID Number: 23266 Law Offices of Proctor Lindsay & Dixon 1204 Baltimore Pike, Suite 200 Chadds Ford, PA 19317 610-361-8600 (phone) 610-361-8843 (fax) cproctor@cplawl.com

2

 
 Case 5:12-cv-06744-MSG Document 8 Filed 12/07/12 Page 1 of 6
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Civil Action No. 5: 12-cv-06744-MSG
CONESTOGA WOOD SPECIALITIES CORPORATION, a PA Corporation; NORMAN HAHN; NORMAN LEMAR HAHN; and ANTHONY H. HAHN
Plaintiffs, v. KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; HILDA SOLIS, in her official capacity as Secretary of the United States Department of Labor; TIMOTHY GEITHNER, in his official capacity as Secretary ofthe United States Department of the Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; and UNITED STATES DEPARTMENT OF THE TREASURY;
Defendants.
PRELIMINARY INJUNCTION ORDER (PROPOSED)
This matter having come before the Court on motion of Plaintiffs, and the Court having reviewed the pleadings filed in this case, having reviewed the statements and various arguments of counsel, and otherwise being sufficiently advised,
The Court DOES HEREBY FIND THAT:
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Case 5:12-cv-06744-MSG Document 8 Filed 12/07/12 Page 2 of 6
1. The Individual Plaintiffs are several family members who own and operate Conestoga Wood Specialties Incorporated, a Pennsylvania corporation, which manufacture wood cabinets and wood specialty products.
2. Plaintiffs' Verified Complaint brings several statutory and constitutional claims against the Defendants and their requirement that Plaintiffs provide, as a part of their company funded employee health insurance plan, all methods approved by the FDA as contraception, including what Plaintiffs view as abortifacients, and related education and counseling.
3. Defendants' mandated requirement to provide these services contained in the combined following authorities: 42 U.S.C. § 300gg-13(a)(4), Pub. L. 111-148, § 1563(e)-(f), 75 Fed. Reg. 41726-60 (July 19, 2012), guidelines available at http://www.hrsa.gov/womensguidelines/, 76 Fed. Reg. 46621-26 (Aug. 3, 2011) and 77 Fed. Reg. 8725-30 (Fed. 15, 2012), as well as penalties found in 26 U.S.C. §§ 4980D & 4980H and 29 U.S.C. § 1132, and other provisions of PPACA or its implementing regulations that affect exemptions or other aspects of the Mandate. See, e.g., 76 Fed. Reg. at 46623 & n.4 (citing "grandfathering" exemption contained in 26 CFR 54.9815-1251T, 29 CFR 2590.715-1251 and 45 CFR 147.l40 (75 FR 34538, June 17,2010)).
4. Plaintiff s provision of the required coverage violates their sincerely held Mennonite religious beliefs, and will adversely impact them starting January 1, 2013, because Plaintiffs employee health insurance plan for the coming year will go into effect on January 1, 2013.
5. Plaintiffs filed a Motion for a Preliminary Injunction seeking to halt the applicability of Defendants' mandated insurance coverage provisions to their business.
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Plaintiffs' Motion argues that Defendants' requirements violate the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb et seq., the Free Exercise, Establishment, and Freedom of Speech Clauses of the First Amendment, the Due Process Clause of the Fifth Amendment and the Administrative Procedure Act.
6. Defendants' requirements on Plaintiffs substantially burden their exercise of their religious beliefs.
7. Defendants' requirements on Plaintiffs are not justified by a compelling interest. 8. Defendants' requirements on Plaintiffs are not the least restrictive means to achieve a compelling government interest. 9. Defendants' requirements are not religiously netural or generally applicable. 10. Defendants' requirements discriminate among religious and among religious beliefts and the exercise thereof. 11. Defendants' requirements compel speech that Plaintiffs find morally objectionable. 12. Defendants' requirements are unconstitutionally vague and overbroad. 13. Defendants' requirements are agency actions not taken in accordance with the enacting procedures as required by law, are arbitrary and capricious, and violate the Weldon Amendment of the Consolidated Security, Disaster Assistance, and Continuing Appropriation Act of2009, Public Law 110 329, Div. A. Sec. 101, 122 Stat. 3574, 3575 (Sept. 30,2008) and 42 U.S.C. § 300a-7(d).
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14. Plaintiffs have shown a high probability of success on the merits of their claims under RFRA, the First Amendment in relation to religious objectors, the Fifth Amendment and the Administrative Procedures Act.
15. Defendants' requirements as applicable to Plaintiffs violate RFRA and the Free Exercise, Establishment, and Freedom of Speech Clauses of the First Amendment, the Due Process Clause of the Fifth Amendment to the United States Constitution, and the Administrative Procedure Act.
16. Plaintiffs will suffer irreparable harm in the absence of the preliminary injunctive relief specified herein.
17. The balance of equities strongly tips in favor of Plaintiffs. 18. Preliminary injunctive relief as specified herein is in the public interest. Accordingly, IT IS ORDERED THAT: 1. Plainitffs Motion for Preliminary Injunction should be and hereby is GRANTED; 2. Defendants, their agents, officers, and employees are hereby ENJOINED from any application or enforcement of their mandated requirements pursuant to 42 U.S.C. § 300gg13(a)(4), due to any failure by Plaintiffs, their group health insurance plan, or health insurance carrier to offer group or individual health insurance coverage to their employees that provides contraception or related education and counseling, in violation of Plaintiff s strongely held religious beliefs, in their employee health insurance plan for the plan year commencing January 1,2013.
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Case 5:12-cv-06744-MSG Document 8 Filed 12/07/12 Page 5 of 6
3. No bond shall be required as this injunction issues in order to protect Plaintiff s constitutional and statutory rights.

Dated: ----------------

Judge Mitchell S. Goldberg United States District Court For the Eastern District of Pennsylvania

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Case 5:12-cv-06744-MSG Document 8 Filed 12/07/12 Page 6 of 6

Distribution to: U.S. Dep't. of Health and Human Services 200 Independence Avenue S.W. Washington, DC 20201

Kathleen Sebelius, in her official capacity as Secretary of the U.S. Dep't of Health and Human Services 200 Independence Avenue S.W. Washington, DC 20201

u.S. Dep't of the Treasury 1500 Pennsylvania Avenue N.W. Washington, DC 20220

Timothy Geithner, in his official capacity as Secretary of the U.S. Dep't of Treasury 1500 Pennsylvania Avenue N.W. Washington, DC 20220

u.S. Dep't of Labor Frances Perkins Bldg. 200 Constitution Avenue N.W. Washington, DC 20201

Linda Solis, in her official capacity as Secretary of the U.S. Dep't of Labor Frances Perkins Bldg. 200 Constitution Avenue N.W. Washington, DC 20201

Eric H. Holder, Jr. Attorney General of the United States U.S. Department of Justice 20 Massachusetts Avenue N.W. Washington, DC 20001

Viveca Parker, Esquire U.S. Attorney's Office Eastern District of Pennsylvania 615 Chestnut Street, Suite 1250 Philadelphia, PA 19106

6

 
 Case 5:12-cv-06744-MSG Document 15 Filed 12/08/12 Page 1 of 49
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Civil Action No. 5:12-cv-06744-MSG
CONESTOGA WOOD SPECIALITIES CORPORATION, a PA Corporation; NORMAN HAHN; NORMAN LEMAR HAHN; and ANTHONY H. HAHN
Plaintiffs, v. KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; HILDA SOLIS, in her official capacity as Secretary of the United States Department of Labor; TIMOTHY GEITHNER, in his official capacity as Secretary ofthe United States Department ofthe Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; and UNITED STATES DEPARTMENT OF THE TREASURY;
Defendants.
BRIEF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Case 5:12-cv-06744-MSG Document 15 Filed 12/08/12 Page 2 of 49
TABLE OF CONTENTS Table of Authorities .................................................................................................... iii Introduction ................................................................................................................. 1 Factual Background..................................................................................................... 3 Argument ..................................................................................................................... 7
I. Plaintiffs Are Likely to Succeed on the Merits.......................................... 7 A. The Mandate violates RFRA................................................................. 7 1. The Mandate substantially burdens Conestoga's exercise of religion. ......................................................................................................... 8 2. Other means would be less restrictive of Conestoga's religious exercise.......................................................................................... 15 3. The Mandate is not justified by a compelling interest. ................. 17 B. The Mandate violates Plaintiffs' right to Free Exercise of Religion.. 25 1. The Mandate is not generally applicable because it disfavors religion........................................................................................... 25 2. The Mandate is not neutral towards religion................................. 28 3. The Mandate fails strict scrutiny................................................... 30 C. The Mandate violates the Establishment Clause................................. 31 D. The Mandate violates Conestoga's Freedom of Speech..................... 33
II. Plainitffs Will Suffer Irreparable Harm Absent an Injunction.................... 34
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Case 5:12-cv-06744-MSG Document 15 Filed 12/08/12 Page 3 of 49
III. An Injunction Will Cause No Harm to Defendants.................................... 35 IV. The Public Interest Favors a Preliminary Injunction.................................. 36 Conclusion ........................................................................................................... 37 Certificate of Service ........................................................................................... 39
TABLE OF AUTHORITIES Cases Am. Civil Liberties Union v. Ashcroft,
322 F.3d 240 (3d Cir. 2003)............................................................36 Am. Civil Liberties Union v. Reno,
929 F. Supp. 824 (E.D. Pa. 1996) ...................................................... 35 AT & Tv. Winbackv. Conserve Program,
42 F. 3d 1421 (3d Cir. 1994) ...........................................................36 Blackhawk v. Pennsylvania,
381 F.3d 202 (3d Cir. 2004) .. '" ......................................................2,23,26-27 Braunfeld v. Brown,
366 U.S. 599 (1961) ....................................................................................... 29 Brown v. Entm 't Merchs. Ass 'n,
131 S. Ct. 2729 (June 27, 2011) ................................................................ 18-20 Cal. Democratic Party v. Jones,
530 U.S. 567 (2000) ....................................................................................... 17 Church ofthe Lukumi Babalu Aye, Inc. v. City ofHialeah,
508 U.S. 520 (1993) ................................................................................passim
111

Case 5:12-cv-06744-MSG Document 15 Filed 12/08/12 Page 4 of 49

Citizens United v. Federal Election Comm 'n., 130 S. Ct. 876 (2010) .................................................................................... 11

City ofBoerne v. Flores, 521 U.S. 507 (1997) ...................................................................................... 17

Colo. Christian U v. Weaver, 534 F.3d 1245 (10th Cir. 2008) .................................................................. 3,31

EEOC v. Townley Eng 'g & Mfg. Co., 859 F.2d 610 (1988) ...................................................................................... 11

Elrod v. Burns, 427 U.S. 347 (1976) ....................................................................................... 34

Employment Division v. Smith, 494 U.S. 872 (1990) ......................................................................................... 8

Fraternal Order ofPolice v. City ofNewark, 170 F.3d 359 (3d Cir. 1999) ....................................................................... 8,27

Gonzales v. 0 Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) ................................................................................passim

Gov 't of Virgin Is., Dep't Conservation and Cultural Affairs v. Virgin Is. Paving, 714 F. 2d 283 (3d Cir. 1983) ....................................................... .35

Hobby Lobby Stores, Inc. v. Sebelius,

_ F. Supp. 2d

2012 WL 5844972

(W. D. Okla. Nov. 19,2012) ......................................................................... 12

Hodgkins v. Peterson, 355 F.3d 1048 (7th Cir. 2004) ........................................................................ 16

Hurley v. Irish-Am. Gay, Lesbian, & Bisexual Group ofBoston, 515 U.S. 557 (1995) ....................................................................................... 33

Jolly v. Coughlin, 76 F.3d 468 (2d Cir 1996) .............................................................................. 34

IV

Case 5:12-cv-06744-MSG Document 15 Filed 12/08/12 Page 5 of 49
Kikumura v. Hurley, 242 F.3d 950 (10th Cir. 2001) ........................................................................ 34
Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700 (3d Cir. 2004) ...................................................................... 7, 36
Larson v. Valente, 456 U.S. 228 (1982) ....................................................................................... 31
Legatus v. Sebelius, _ _ F.Supp.2d _,2012 WL 5359630 (E.D. Mich. Oct 31,2012) ........... 1
Monell v. Dept. ofSocial Services, 436 U.S. 658 (1978) ...................................................................................... 11
Newland v. Sebelius, _ _ F.Supp.2d _,2012 WL 3069154 (D. Colo. July 27,2012) .......................................................... 1, 11, 13, 17,25
NJ. Retail Merchants Ass 'n v. Sidamon-Eristoff, 669 F.3d 374 (2012) ...................................................................................... 36
o Centro Espirita Beneficente Uniao Do Vegetal v. Ashcroft,
389 F.3d 973, 995 (lOth Cir. 2004) ................................................................ 34
O'Brien v. United States Dep 't ofHealth and Human Services., No: 12-3357 (8th Cir. Nov. 28, 2012) ........................................................ 1, 11
O'Brien v. United States Dep 't ofHealth and Human Services, _ F. Supp. 2d __,2012, WL 441208, at (E.D. Mo. 2012) ..................... 12
Oklahoma v. Sebelius, No. 11-cv-00030 (E.D. Okla. Filed Sept. 19,2012) ............................... 12,22
Opticians Ass 'n ofAm. v. Indep. Opticians ofAm., 920 F. 2d 187 (3d Cir. 1990) ......................................................................... 36
Powelton Civic Home Owners Ass 'n v. Dep't ofHousing and Urban Development 284 F. Supp. 809 (E.D. Pa. 1968) ................................................................. 38
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Case 5:12-cv-06744-MSG Document 15 Filed 12/08/12 Page 6 of 49
Ramsey v. City ofPittsburgh, 764 F. Supp. 2d 728 (W.D. PA 2011) ........................................................... 36
Riley v. National Federation ofthe Blind ofNorth Carolina, Inc., 487 U.S. 781 (1988) ................................................................................. 16-17
RoDa Drilling Co. v. Siegal, 552 F.3d 1203 (10th Cir. 2009) ...................................................................... 38
Sherbert v. Verner, 374 U.S. 398 (1963) .................................................................................... 8-10
Shrink Missouri Government PAC v. Adams, 151 F.3d 763 (8th Cir. 1998) .......................................................................... 12
Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) .................................................................. 11, 34
Thomas v. Review Board, 450 U.S. 707 (1981) ......................................................................................... 7
Thomas v. Collins, 323 U.S. 516, 530 (1945) ................................................................... 11, 14, 17
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 624 (1994) ....................................................................................... 33
Tyndale House Publishers, Inc. v. Sebelius, _F.Supp.2d_, 2012 WL 5817323 (D.D.C. Nov. 16,2012) .. 2,11,14,25
United States v. Lee, 455 U.S. 252 (1982) ...................................................................................... 13
Washington v. Klem, 497 F.3d 272 (3d Cir. 2007) ............................................................................ 9
Wilson v. NLRB, 920 F.2d 1282 (6th Cir. 1990)........................................................................ 31
VI

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Wisconsin v. Yoder, 406 U.S. 205 (1972) .................................................................................... 8-10
Wooley v. Maynard, 430 U.S. 705 (1977) .................................................................................. 33-34
W V State Bd. ofEduc. v. Barnette, 319 U.S. 624 (1943) ....................................................................................... 33
Statutes 1 U.S.C. § 1 ............................................................................................................... 11 26 U.S.C. § 4980D .......................................................................................... 6, 10,34 26 U.S.C. § 4980H .......................................................................................... 6, 10,34 26 U.S.C. §§ 5000A(d)(2)(a) .................................................................................... 22 29 U.S.C. § 1132 ............................................................................................. 6, 10,34 42 U.S.C. § 300gg-13(a)(4) ......................................................................................... 5 42 U.S.C. § 2000bb et seq. ...................................................... ...........................passim 42 U.S.C. § 2000cc-5(7)(A) ........................................................................................ 8 Pub. L.111-148, §1563(e)-(f) ..................................................................................... 6
Regulations 75 Fed. Reg. 41726 ...................................................................................................... 5 76 Fed. Reg. 46621-23-24 ..................................................................................passim
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76 Fed. Reg. 46626........................................................................................ 22, 27, 28 77 Fed. Reg. 8725 ........................................................................................................ 6
Other Authorities ACLU Press Release, "ACLU Applauds CA Supreme Court Decision Promoting
Women's Health and Ending Gender Discrimination in Insurance Coverage" (Mar. 1, 2004) .............................................................................. 30 CBS News "Feds to stop funding Texas women's health program" (Mar. 9, 2012)................................................................................................. 19 Guttmacher Institute, "Facts on Contraceptive Use in the United States," June 2010 ........................................................................................................ 18 HHS, "A statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius," (Jan. 20, 2012) ............................................................... 19 HRSA, http://www.hrsa.gov/womensguidelines/ ....................................................... 5 HealthCare.gov, "Small Business"............................................................................ 22 HealthReform.gov, "Fact Sheet: Keeping the Health Plan You Have: The Affordable Care Act and "Grandfathered" Health Plans" ................ '" .......... 22 Index of CClIO Regulations and Guidelines http://cciio.ems.gOYIresources/regulations/index.html .................................. 22
Vlll

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INTRODUCTION The Defendants collectively seek to force citizens to violate their sincerely held religious beliefs merely because those citizens own and operate a business in the United States of America. Defendants' national mandate of birth control and abortifacient coverage in health insurance (hereinafter "Mandate")1 disregards religious conscience rights that are enshrined in federal statutory and constitutional law. Those rights squarely protect the Plaintiffs in this case, the Hahn family and Conestoga Wood Specialties Corporation, collectively, (hereinafter "Conestoga"). The Mandate's burdens on Conestoga's beliefs cannot be reconciled with the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (RFRA), because (among many other reasons) there are obvious less religiously restrictive means for the government to pursue free contraception (which, of concern to the Hahns and Conestoga includes abortifacients), such as for the government itself to subsidize such services. Four courts so far have protected corporations like Conestoga and their owners from the Mandate. 0 'Brien v. United States Dep't ofHealth and Human Servs., No: 123357 (8th Cir. Nov. 28, 2012) (granting a motion providing for injunctive relief against the Mandate pending appeal); Newland v. Sebilius, _F.Supp.2d _ , 2012 WL 3069154 (D. Colo. July 27, 2012) (granting a preliminary injunction against the Mandate); Legatus v. Sebelius, _F.Supp.2d _ , 2012 WL 5359630 (E.D. Mich. Oct.
-1 ASJ.. a..eSCfl*D1 ea... .D,.e,lOw, m~1 e I1\vIflana1ate conSI• sts 01£' a congl1omerate 01.c regull at'iOns, gU.l;ul e1d" nes, l•TIrlu"lrect statutory authority and penalties.
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Case 5:12-cv-06744-MSG Document 15 Filed 12/08/12 Page 10 of 49
31,2012) (same); Tyndale House Publishers, Inc. v. Sebelius, _ F.Supp.2d _,2012 WL 5817323 (D.D.C. Nov. 16,2012) (same).
Defendants' own behavior shows that their Mandate is not in furtherance of a compelling interest "of the highest order" as required by Gonzales v. 0 Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 433 (2006) (quoting Church of the Lukumi Babalu Aye, Inc. v. City ofHialeah, 508 U.S. 520, 546 (1993)). They offer a multitude of secular and even religious exemptions to the Mandate, but refuse to respect the beliefs of Conestoga. The Mandate does not apply to approximately 191 million Americans covered by "grandfathered" plans, the Amish, small employers, churches, religious organizations that primarily serve their members, and others.
This arbitrary regulation of exemptions further illustrates that the Mandate violates the religion clause of the First Amendment. A law cannot burden religious exercise while offering such a variety of other exemptions implicating the same interests. See, e.g., Blackhawk v. Pennsylvania, 381 FJd 202,209 (3d Cir. 2004); 0 Centro Espirita, 546 U.S. at 432-37 (2006). Such a scheme is not "neutral" or "generally applicable."
The Mandate also engages in entanglement with and hostility to religious beliefs in violation of the First Amendment's Establishment Clause. Defendants have taken it upon themselves to decide who is, and who is not, sufficiently "religious" to receive the largesse of their accommodations. The Mandate attempts to marginalize certain expressions of religious beliefs by declaring that entities do not qualify for an exemption
2

Case 5:12-cv-06744-MSG Document 15 Filed 12/08/12 Page 11 of 49
unless they are churches or religious orders that primarily serve, hire, and inculcate beliefs upon their own adherents. This establishes a caste system of religious believers, favoring some while punishing others, such as Conestoga here. This is government establishment of religion in one of the most basic senses of the phrase. Colo. Christian U v. Weaver, 534 F.3d 1245, 1257 (10th Cir. 2008). Defendants are, additionally, violating Conestoga's freedom not to speak through the "counseling" that the Mandate requires.
Defendants' illegal Mandate poses an urgent threat to the Hahns and their family business Conestoga. The Mandate will force them, starting in January 1, 20l3, to add objectionable items into their health plan. If this Court does not issue preliminary injunctive relief against the applicability of the Mandate to Conestoga prior to December 31, 2012, Defendants will irreparably trample on Conestoga's federal rights and injure their ability to obtain final relief.
FACTUAL BACKGROUND
Conestoga's Verified Complaint is incorporated herein by reference thereto and fully set forth herein. Conestoga is a family owned and operated wood cabinet and wood specialty products manufacturing business in East Earl, Pennsylvania with additional facilities in other states. Verified Complaint ("VC") ~ 11-14 (5: 12-cv-06744-MSG, Doc. # 1). Norman Hahn, Norman Lemar Hahn and Anthony H. Hahn are owners and members of the Board of Directors of Conestoga Wood Specialties Corporation. Id. Anthony H. Hahn is also the President and Chief Executive Officer of Conestoga. Id.
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His father, Norman Hahn is the Vice Chairman of the Board of Directors. Id. Norman Lemar Hahn is Chairman of the Board of Directors. Id. Together the Hahns are responsible for all of Conestoga'ss corporate operations, which includes approximately 950 employees. VC ~~ 15, 34.
The Hahns are of the Mennonite faith, and strive through their operation of Conestoga (and in all the other aspects of their lives) to follow the teachings of the Mennonite faith. VC ~~ 25 - 32. The Hahns' commitment to Mennonite religious ethics permeates their management of Conestoga. Id. They have established a vision and mission statement for Conestoga that strives" ... professional environment founded upon the highest ethical, moral and Christian principles reflecting respect, support and trust for our customers, our suppliers, our employees and their families." VC ~ 31. Under the Hahns' management of Conestoga, they have donated substantial sums to a variety of charitable and community organizations every year above and beyond their giving to their respective churches. VC ~ 33. For several years the Hahns have implemented a program within Conestoga to more thoroughly conform its management and company culture to religious ethical principles that derive from their religious beliefs about how people flourish in the workplace and beyond. VC ~ 29.
In exercise of their sincerely and deeply held Mennonite beliefs, Conestoga opposes offering employee health insurance coverage of any form of contraception that has an abortifacient effect. VC ~~ 30-32. Conestoga's next plan-year begins January 1,
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2013. VC,-r 35. To finalize the employees health insurance plan for next year, the

coverage to be provided by December 31,2012.

Defendants have mandated that Conestoga violate their deeply held religious

beliefs by providing coverage for abortifacient contraception and education and

counseling in favor of the same in their employee health plan starting with the January 1,

2013 plan year. VC,-r,-r 4-5, 35-37, 67-68. The Patient Protection and Affordable Care

Act of 2010 (PPACA) did not require this Mandate. But it did require that health plans

include coverage of yet-to-be-specified preventive health services, including preventive

care items for women, at no cost-sharing to patients. 42 U.S.C. § 300gg-13(a)(4).

Defendants issued regulations ordering HHS' s Health Resources and Services

Administration (HRSA) to decide what would be mandated as women's preventive care.

75 Fed. Reg. 41726-60 (July 19, 2010). HRSA issued such guidelines in July 2011,

mandating that preventive care for women include "All Food and Drug Administration

approved contraceptive methods, sterilization procedures, and patient education and

counseling

for

all

women

with

reproductive

capacity. "

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

"interim final rule" endorsing HRSA's guidelines as applied to plan years beginning after

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

objectors from the Mandate, according to a specific religious definition. 76 Fed. Reg.

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Case 5:12-cv-06744-MSG Document 15 Filed 12/08/12 Page 14 of 49
46621-26 (Aug. 3, 2011). At last, Defendants issued final regulations by adopting the Aug. 3 regulations "without change." 77 Fed. Reg. 8725-30 (Feb. 15,2012).
If Conestoga adheres to their religious beliefs, the Mandate automatically triggers a variety of penalties. VC ~~ 49-53. Section 1563 ofPPACA incorporates the preventive care requirement into the Internal Revenue Code as well as ERISA. See "Conforming Amendments," Pub. L. 111-148, §1563(e)-(f). This results in penalties through the Treasury Department of approximately $100 per employee per day on Conestoga if they continue providing their employees with generous health insurance coverage but omit the mandated items to which they object. 26 U.S.C. § 4980D. Furthermore, the law imposes a $2,000 per employee per year penalty on Conestoga if they omit health insurance altogether. 26 U.S.C. § 4980H. Meanwhile, the Labor Department as well as Conestoga's plan participants are authorized to sue Conestoga for omitting the objectionable mandated coverage, and those suits can specifically force the Conestoga to violate their beliefs by providing the objectionable coverage. 29 U.S.C. § 1132.
This Court is Conestoga's only recourse from the Mandate's assault on their religious freedom. VC ~~ 84-85. Conestoga's health plan is not grandfathered from the Mandate, nor does it meet the variety of other secular or religious exemptions Defendants and federal law have chosen to provide. VC ~~ 55-57,65-72. Conestoga has no adequate remedy at law. VC ~~ 84-85. Unless this Court orders preliminary injunctive relief to Conestoga before December 31, 2012, so as to prevent the Mandate's applicability to
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them, Conestoga will suffer irreparable harm by Defendants' coercion, because it blatantly violates long standing religious conscience protections found in federal statute and the constitution. VC,-r,-r 96-140.
ARGUMENT To be successful, a motion for a preliminary injunction must demonstrate: (1) a likelihood of success on the merits; (2) that it will suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will not result in even greater harm to the nonmoving party; and (4) that the public interest favors such relief. Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700 (3d Cir. 2004). Each of these four factors favors injunctive relief in the instant case. I. Conestoga Is Likely to Succeed on the Merits. A. The Mandate violates RFRA. Defendants' Mandate is a textbook violation of the Religious Freedom Restoration Act (RFRA). That statute provides: (a) In general
Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section. (b) Exception
Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person-
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(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling
governmental interest. 42 U.S.C. 2000bb-1. RFRA applies against actions of the federal government. 0 Centro Espirita, 546 U.S. at 424 n.1. RFRA adopts a strict scrutiny rule against federal burdens of religious exercise, to curtail the perceived lower standard applied in Employment Division v. Smith, 494 U.S. 872 (1990). See 0 Centro Espirita, 546 U.S. at 424.
1. The Mandate substantially burdens Conestoga's exercise of religion. Conestoga's operation of their health insurance plan according to their religious beliefs is the "exercise of religion" under RFRA. RFRA "includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief." 42 U.S.C. § 2000cc-5(7)(A). This includes not merely worship but actions in accordance with one's religious beliefs. In Sherbert v. Verner, 374 U.S. 398, 399 (1963), an employee's religious beliefs forbade her from working on Saturdays. In Wisconsin v. Yoder, 406 U.S. 205, 208 (1972), parents had religious beliefs that prohibited them from sending their children to high school. In Thomas v. Review Board, 450 U.S. 707, 709 (1981), a worker objected to participating in the production of war materials.2 See also Fraternal Order of Police v. City of Newark, 170 F.3d 359, 360 (3d Cir. 1999) (concerning a police officer's belief that wearing a beard was religiously required).
2 Smith reaffirmed that "the 'exercise of religion' often involves not only belief and profession but the performance of (or abstention from) physical acts," for example, "abstaining fwm certain foods or certain modes of transportation." 494 U.S. at 877.
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Therefore Conestoga's operation of their business in compliance with their religious beliefs against providing coverage for contraception with an abortifacient effect and education thereof is part of their "exercise of religion" under RFRA.
The Mandate imposes far more than a substantial burden on Conestoga's religious beliefs, because it directly mandates that they violate those beliefs. Following Congress' intent "to create a broad definition of substantial burden," a "substantial burden" is imposed "where: (l) a follower is forced to choose between following the precepts of his religion and forfeiting benefits otherwise generally available to other inmates versus abandoning one of the precepts of his religion in order to receive a benefit; OR (2) the government puts substantial pressure on an adherent to substantially modify his behavior and to violate his beliefs." Washington v. Klem, 497 F.3d 272, 280 (3d Cir.2007) (finding a substantial burden on a prisoner's belief to read four religious books a day by a prison guideline allowing him to keep ten books and also access a library). Such a burden happens, even in indirect instances, such as where a law forces a person or group "to choose between following the precepts of [their] religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of [their] religion in order to accept [government benefits], on the other hand." Sherbert, 374 U.S. at 404. Sherbert held that it was "clear" that denying unemployment benefits to an employee was a substantial burden, even though the law did not directly command her to violate her beliefs against working on Saturdays. Id. at 403-04; see also Klem, 497 F.3d at 280 n.7 (circuit
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Case 5:12-cv-06744-MSG Document 15 Filed 12/08/12 Page 18 of 49
definition "incorporates the holdings of both Sherbert and Thomas ''). Here, the coercion is even more direct in the cover of a mandate that forces Conestoga's to violate their beliefs against offering coverage for contraception with an abortifacient effect.
In Yoder, the Court treated it as a substantial burden when the parents who refused to send their children to high school "were fined the sum of $5 each." 406 U.S. at 208. Here, Conestoga faces crippling fines and lawsuits unless they violate their religious principles by providing coverage of abortifacient contraception to which they religiously object. Defendants' Mandate imposes penalties of $100 per employee per day if they omit these items from their plan, and $2,000 per employee per year if they drop health insurance (plus the inherent harm to their employees, and to their competitive provision of benefits, that would come from dropping coverage). 26 U.S.C. §§ 4980D & 4980H. The Mandate further authorizes lawsuits by plan participants and the Secretary of Labor to force Conestoga to provide coverage in violation of their beliefs. 29 U.S.C. § 1132. The mere fact that the Mandate imposes a federal law requirement on Conestoga puts them at risk in innumerable situations, such as contracts, that may require them to comply with "all federal laws." The Supreme Court found that "a fine imposed against appellant" to be a quintessential burden. Sherbert, 374 U.S. at 403-04. That is the penalty present here.
In several lawsuits against this Mandate, the government has argued that a forprofit entity is categorically incapable of exercising religion. However, four federal
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courts have granted injunctions against the Mandate for for-profit employers, including the Eighth Circuit as well as three district courts, which explicitly relied on those companies' RFRA claims. O'Brien, No:12-3357 (8th Cir. Nov. 28, 2012) (granting a motion for injunctive relief against the Mandate pending appeal); Newland, 2012 WL 3069154 at *17; Legatus, 2012 WL 5359630 at *9 (finding that a corporation may assert the religious rights of its owners); Tyndale House Publishers, 2012 WL 5817323 at *14 (same). See also Stormans, Inc. v. Selecky, 586 F.3d 1109, 1120 (9th Cir. 2009) (finding that a for-profit corporation may assert the religious rights of its owners, who are burdened to the same extent the government coerces their businesses); EEOC v. Townley Eng'g & Mfg. Co., 859 F.2d 610, 620 n.l5 (9th Cir. 1988) (same). Moreover, there is no doubt that corporations like Conestoga are covered by the protections of RFRA because RFRA applies to "persons," and the general definition included in 1 U.S.C. § 1 provides: "In determining the meaning of any Act of Congress, unless the context indicates otherwise ... the words 'person' and 'whoever' includes corporations ... as well as individuals." It "is well understood that corporations should be treated as natural persons for virtually all purposes of constitutional and statutory analysis." Monell v. Dept. of Social Services, 436 U.S. 658, 687 (1978). See also Citizens United v. Federal Election Comm 'n, 130 S. Ct. 876, 899 (2010) (applying First Amendment protections to corporations as persons).
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Contrary to Newland, Legatus, and Tyndale, the government has recently relied on two district court decisions against RFRA challenges to the Mandate. 0 'Brien v. United States Dep't of Health and Human Servs., _ F.Supp.2d _ , 2012 WL 4481208, at (E.D. Mo. 2012), appeal docketed, No. 12-3357 (8th Cir. Oct. 1, 2012); Hobby Lobby Stores, Inc. v. Sebelius, _ F.Supp.2d _ , 2012 WL 5844972 (W.D. Okla. Nov. 19, 2012), appeal docketed, No. 12-6294 (10th Cir. Nov. 20, 2012).
But, as observed above, the Eight Circuit, on appeal of the 0 'Brien decision, granted a motion for an injunction pending appeal (procedurally labeled a motion for "stay") blocking enforcement of the Mandate during the appeal. O'Brien, No: 12-3357 (8th Cir. Nov. 28, 2012). Because injunctive relief pending appeal requires the same elements of injunctive relief in other contexts, including a likelihood of success on the merits, this negates the precedential value of the erroneous 0 'Brien district court decision. See Shrink Missouri Government PAC v. Adams, 151 F.3d 763, 764 (8th Cir. 1998) (injunction pending appeal requires showing of likelihood of success on merits). Likewise, Hobby Lobby relied extensively on 0 'Brien, and is now an outlier on this Issue.
The government's rationale says that payment into a health insurance plan that covers objectionable practices is merely "indirect" support of a practice. O'Brien, 2012 WL 4481208 at *6; Hobby Lobby, 2012 WL 5844972 at *23. However, these are impermissible judicial decisions of moral theology. The Court may not judge for a
12

Case 5:12-cv-06744-MSG Document 15 Filed 12/08/12 Page 21 of 49

religious practitioner that promotion of abortifacients is morally acceptable if it is not too

proximate. The Supreme Court rejected the same attempt in Thomas, where the

government deemed the armament manufacturing activity to which the plaintiff objected

"sufficiently insulated" from his objection to war. 450 U.S. at 715. "Thomas drew a

line, and it is not for us to say that the line he drew was an unreasonable one. Courts

should not undertake to dissect religious beliefs ...." Id. See also Newland, 2012 WL

3069154 at *6 n.9 (rejecting the government's burden argument "out of hand").

The government's position likewise contradicts United States v. Lee,

455

U.S. 252 (1982), which explicitly held that the for-profit religious plaintiff had met its

showing to establish a sufficient burden for a free exercise of religion claim. 455 U.S. at

257. In doing so, the Court rejected the government's attempt to insist that despite the

Conestoga's sincerity of beliefs, there was no substantial burden on "the integrity of the

Amish religious belief or observance." Id. Instead the Supreme Court found the burden

sufficiently "interferes with the free exercise rights of the Amish." Id. Lee stated that

determining the burden did not sufficiently violate the faith to satisfy a free exercise

claim would be an interpretation of faith that is "not within 'the judicial function and

judicial competence'" Id. (quoting Thomas, 450 U.S. at 716). The invitation by the

government to judge between different levels of moral culpability is incompatible with

the Supreme Court definition of substantial burden, by which it is not a measure of

religious beliefs, but is a measure of the "pressure" the government applies against

13

Case 5:12-cv-06744-MSG Document 15 Filed 12/08/12 Page 22 of 49
beliefs. Thomas, 450 U.S. at 718. As explained above, the Mandate here explicitly orders a violation of beliefs and imposes intense penalties as pressure to do so. The government also incorrectly argues that a burden on a company is somehow remote from the close family owners and operators of that company who must violate their religious beliefs and use their property to execute the order. The Court in Tyndale House Publishers rightly observed that this view is contrary to precedent such as Stormans and Townley. Tyndale House Publishers, 2012 WL 5817323 at *814 (identity of burden on owners and company "is precisely what those cases held").
The Mandate here is even more proximate than the substantial burden found in Lee, because Conestoga here must provide objectionable coverage directly to other private citizens, whereas in Lee they sent the money to a multi-trillion dollar budget in Washington. The government would constrain free exercise to personal matters, but would allow the government to coerce believers to help other people engage in objectionable activities. O'Brien, 2012 WL 4481208 at *6; Hobby Lobby, 2012 WL 5844972 at *18. This idea severely constricts the First Amendment and RFRA (which protects "any" free exercise of religion, not merely freedom of worship). Instead, Lee requires that the Court recognize a sufficient burden showing and apply the applicable scrutiny level, which is strict scrutiny under RFRA and 0 Centro. Therefore, this court should follow Newland, Legatus, Tyndale House and the Eight Circuit in 0 'Brien in
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Case 5:12-cv-06744-MSG Document 15 Filed 12/08/12 Page 23 of 49
granting injunctive relief since the Mandate substantially burdens both Conestoga'ss and the Hahns exercise of religion.
2. Other means would be less restrictive of Conestoga's religious exercise. Before this memo addresses why Defendants cannot show a compelling interest, it is worthwhile considering that even if such an interest existed, the government could not possibly show that the Mandate is "the least restrictive means of furthering" it under 42 U.S.C. 2000bb-l. Defendants bear the burden to show both of these elementscompelling interest and least restrictive means-including at the preliminary injunction stage. 0 Centro Espirita, 546 U.S. at 428-30 ("[T]he burdens at the preliminary injunction stage track the burdens at trial. ... RFRA challenges should be adjudicated in the same manner as constitutionally mandated applications of the [compelling interest] test," such as for speech claims under the First Amendment."). Defendants fail the least restrictive means test simply because the government could, if the political will existed, achieve its desire for free coverage of birth control by providing that benefit itself. Rather than coerce Conestoga to provide this coverage in their plan, the government could possibly create its own "contraception insurance" plan covering all the items the Mandate requires, and then allow free enrollment in that plan for whomever the government seeks to cover. Another course of action could be for the government to directly compensate providers of contraception, or offer tax credits or deductions for contraceptive purchases, or impose a mandate on the contraception
15

Case 5:12-cv-06744-MSG Document 15 Filed 12/08/12 Page 24 of 49
manufacturing industry to give its items away for free. 3 These and other options could fully achieve Defendants' goal while being less restrictive of Conestoga's beliefs. There is no essential need to coerce Conestoga or other religious objectors to provide the objectionable coverage themselves.
Defendants cannot deny that the government could pursue its goal more directly. This conclusion is not only dictated by common sense, but is also proven because the federal government and many states already directly subsidize birth control coverage for many citizens through Title XIXlMedicaid and Title XlFamily Planning Services funding. Thus the Court's RFRA analysis may stop here by finding that the Mandate is not the least restrictive means of furthering Defendants' interest. Other options may be more difficult to pass as a political matter, (which further illustrates the public's disbelief that the Mandate's interest is "compelling"). Indeed PPACA itself does not require the Mandate. But political difficulty does not exonerate the Mandate's burdens on Conestoga's religious beliefs, or allow it to pass RFRA's strict scrutiny. "Nor can the government slide through the test merely because another alternative would not be quite as good." Hodgkins v. Peterson, 355 F.3d 1048, 1060 (ih Cir. 2004); Strict scrutiny requires the government, rather than burdening fundamental rights, to pursue other methods that involve its own efforts and expenses even if they are less direct. See Riley
3 And by virtue of Defendants' recent attempts to quell political backlash by claiming they may create an "accommodation" for some additional religious entities (but still not for Conestoga), Defendants are necessarily allil1itting that the Mruldate is not the least restrictive mea.'1S to achieve their goals. See 77 Fed. Reg. 16501-08 (Mar. 21,2012)
16

Case 5:12-cv-06744-MSG Document 15 Filed 12/08/12 Page 25 of 49
v. National Federation of the Blind of North Carolina, Inc., 487 U.S. 781, 799-800 (1988) (government interest could be served by its own speech advertising and by enforcement of fraud laws instead of by compelling speakers to delivers its message). Since many methods less restrictive of religious beliefs exist, see e.g., Newland, 2012 WL 3069154 at *17 ("Given the existence of government programs similar to Conestoga's proposed alternative, the government has failed to meet this burden" of demonstrating that the Mandate is the least restrictive means), this alone fatally undermines Defendants' burden under RFRA and the Mandate from applying to Conestoga.
3. The Mandate is not justified by a compelling interest. Defendants cannot establish that their coercion of Conestoga is "in furtherance of a compelling governmental interest." RFRA, with "the strict scrutiny test it adopted," 0 Centro Espirita, 546 U.S. at 430, imposes "the most demanding test known to constitutional law." City ofBoerne v. Flores, 521 U.S. 507, 534 (1997). A compelling interest is an interest of "the highest order," Lukumi, 508 U.S. at 546, and is implicated only by "the gravest abuses, endangering paramount interests," Thomas v. Collins, 323 U.S. 516, 530 (1945). Defendants cannot propose such an interest "in the abstract," but must show a compelling interest "in the circumstances of this case" by looking at the particular "aspect" of the interest as "addressed by the law at issue." Cal. Democratic Party v.
17

Case 5:12-cv-06744-MSG Document 15 Filed 12/08/12 Page 26 of 49
Jones, 530 U.S. 567, 584 (2000); 0 Centro Espirita, 546 U.S. at 430-32 (RFRA's test can only be satisfied "through application of the challenged law 'to the person'-the particular claimant"); see also Lukumi, 508 U.S. at 546 (rejecting the assertion that protecting public health was a compelling interest "in the context of these ordinances"). The government must "specifically identify an 'actual problem' in need of solving" and show that coercing Conestoga is "actually necessary to the solution." Brown v. Entm't Merchs. Ass 'n, 131 S. Ct. 2729, 2738 (June 27, 2011). If Defendants' "evidence is not compelling," they fail their burden. Id. at 2739. To be compelling, the government's evidence must show not merely a correlation but a "caus[al]" nexus between their Mandate and the grave interest it supposedly serves. Id. The government "bears the risk of uncertainty ... ambiguous proofwill not suffice." Id.
Defendants' interest in coercing Conestoga to provide coverage of abortifacient contraception is not compelling. No "grave" or "paramount" crisis justifies this Mandate on Conestoga. Never in the history of the United States has the federal government forced religiously objecting employers to cover abortifacient contraception in their employee health plans. Until August 1, 2012, at the earliest, no such federal mandate existed. Yet a large majority of Americans already have contraceptive coverage.4 Defendant Sebelius has admitted that "contraceptive services are available at sites such as
4 Nine out of ten employers, pre-Mandate, already provide a "full range" of contraceptive coverage. Guttrnacher Institute, "Facts on Contraceptive Use in the United States," June 2010, available at http://www.guttrnacher.org/pubs/fb_contr_use.htrnl (last accessed Dec. 3, 2012).
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Case 5:12-cv-06744-MSG Document 15 Filed 12/08/12 Page 27 of 49
community health centers, public clinics, and hospitals with income-based support."s
Such "income-based support" is available through federal government subsidies in Title
XIXlMedicaid and Title X/Family Planning Services, as well as through subsidies by state governments.6 And the availability of contraceptive items for sale is ubiquitous,
now reaching even vending machines on college campuses. Defendants therefore cannot
claim a grave interest in the scarcity of contraception coverage in health insurance. To
the extent they claim an interest in increasing access to contraception on the margins,
Brown declared: "government does not have a compelling interest in each marginal
percentage point by which its goals are advanced." 131 S. ct. at 2741.
Defendants cannot show, as they must, a compelling interest with respect to the
even-tinier fraction of American employees who work for religiously-objecting
employers. A generalized, "abstract" interest in the benefits of contraception for women
will not suffice; Defendants must demonstrate their interest with respect to Conestoga's
own employees, see 0 Centro Espirita, 546 U.S. at 430-32, proving the government has
5 "A statement by u.s. Department of Health and Human Services Secretary Kathleen Sebelius,"
(Jan. 20, 2012), available at http://www.hhs.gov/news/press/2012pres/01l20120120a.html (last accessed Dec. 3, 2012). 6 Defendants have shown that they do not believe a compelling interest exists to promote contraceptive access. In Texas, HHS has decided to cease providing 90% of funding of a $40 million Texas Women's Health family planning program. Texas had been using that funding to provide thousands of women with family planning, but Texas required funding providers to not, directly or indirectly, provide abortion. On this basis alone HHS withdrew federal funding, which Defendant Sebelius admitted would cause "a huge gap in family planning." HHS decided that protecting the interests of abortion providers is more important than providing contraception access. See CBS News "Feds to stop funding Texas women's health program" (Mar. 9, 2012), avaiiable at http://www.cbsnews.coml8301-501363_162-573946811feds-to-stop-funding-texaswomens-health-program/ (last accessed Dec. 3,2012).
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Case 5:12-cv-06744-MSG Document 15 Filed 12/08/12 Page 28 of 49
no choice but to coerce Conestoga. In 0 Centro Espirita, the Court held evidence to be insufficient showing that Schedule I controlled substances were "extremely dangerous," because that "categorical" support could not meet the government's RFRA burden to consider the "particular" exception requested by the Plaintiffs. Id. at 432.
Defendants' must also show that their alleged harm to Conestoga's employees is not mild, but extreme: that it threatens the "gravest," "highest" and most "paramount" consequences for Conestoga's employees absent the Mandate. But the Mandate's regulations cite no rash of contraception-deprived deaths among employees of religiously-devout employers. They also cite no pandemic of unwanted births causing catastrophic inequalities among such employees. Defendants do not know whether employees of Conestoga and similar entities experience negative health consequences absent the Mandate. But Defendants "bear the risk of uncertainty," and cannot satisfY their burden under RFRA with speculation and generalizations.
Under Brown, Defendants must additionally demonstrate a causal connection between some allegedly grave harm to Conestoga's employees, and Conestoga's failure to comply with the Mandate. Defendants have failed to show that women are suffering grave health and equality effects absent this Mandate as applied to religiously objecting Conestoga. They have not shown that women who would receive these benefits are not already getting abortifacient contraception through other means. Defendants have no scientific causal evidence indicating that the Mandate (as opposed to contraception
20

Case 5:12-cv-06744-MSG Document 15 Filed 12/08/12 Page 29 of 49
generally) has any effect whatsoever on unintended pregnancy so as to improve health and equality. Twenty-eight states have passed contraceptive coverage mandates, and the government has no evidence that even one of those state mandates resulted in "the highest order" of benefit to health and equality. In short, Defendants cannot connect the Mandate to causation of grave harm among Conestoga's employees. See also 0 Centro Espirita, 546 U.S. at 438 (where "the Government did not even submit evidence addressing" the specific consequences of an alleged interest, but only offered affidavits "attesting to the general importance" of that interest, "under RFRA invocation of such general interests, standing alone, is not enough.")
The most ironic flaw in Defendants' assertion of a compelling interest is that the federal government itself has voluntarily omitted millions of employees from the Mandate for secular and religious reasons, but Defendants still refuse to exempt Conestoga. The Mandate does not apply to thousands of plans that are "grandfathered" under PPACA. See Mandate, 76 Fed. Reg. at 46623 & n.4. The government's own data shows that 191 million Americans will be covered in grandfathered plans that are not subject to the Mandate in 2013.7 This included the fact that "most" large employers - so, most employers similarly situated to Conestoga here - will not be subject to the Mandate
7 Newland, 2012 WL 3069154 at *1; Tyndale House Publishers, 2012 WL 5817323 at *18. 21

Case 5:12-cv-06744-MSG Document 15 Filed 12/08/12 Page 30 of 49

due to the government's own exclusion of grandfathered plans.s In addition, employers with less than 50 full-time employees are not required by PPACA to provide health insurance coverage at all, which may allow them to avoid the Mandate.9 Also, the Mandate does not apply to members of a "recognized religious sect or division" that conscientiously objects to acceptance of public or private insurance funds. 26 U.S.C. §§ 5000A(d)(2)(a)(i) and (ii). The Mandate exempts from its requirements "religious employers" defined as churches or religious orders that primarily hire and serve their own adherents and have the purpose of inculcating their values. Mandate, 76 Fed. Reg. at 46626. The federal government has decided that employers in any of these categories do not face various penalties for failing to comply with the Mandate. 10

8 HealthReform.gov, "Fact Sheet: Keeping the Health Plan You Have: The Affordable Care Act

and

"Grandfathered"

Health

Plans,"

available

at

http://www.healthcare.govInews/factsheets/20 10106/keeping-the-health-plan-you-have-

grandfathered.html (last accessed Dec. 3, 2012) (estimating that 55% of 113 million large-

employer employees, and 34% of 43 million small-employer employees, will be in grandfathered ~lans in 2013).
See 26 U.S.C. § 4980H(c)(2) (employers are not subject to penalty for not providing health insurance coverage if they have less than 50 full-time employees); HealthCare.gov, "Small Business," available at http://www.healthcare.gov/using-insurance/employers/small-businessl

(last accessed Dec. 3, 2012). 10 Also notably, the government has granted many discretionary waivers to the requirements of

PPACA, some including this Mandate. See, e.g., Index of CClIO Regulations and Guidance

available at http://cciio.cms.gov/resources/regulations/index.html (last visited Dec. 3,2012)

(referencing multiple waivers). And apparently, PPACA does not impose its penalty on large

employers dropping coverage altogether in states that choose not to set up state insurance

exchanges, since 26 U.S.C. § 4980H is only triggered by employee enrollment in an exchange

plan receiving PPACA health insurance premium credits, and those subsidies only flow to state

exchange plans, not to federally-created exchange plans. See, e.g., Amended Complaint at ~ 10,

filed in Oklahoma v. Sebelius, No. 11-cv-00030 (E.D. Okla. Filed Sept. 19,2012).

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Case 5:12-cv-06744-MSG Document 15 Filed 12/08/12 Page 31 of 49
These are massive exemptions that cannot coexist with a compelling interest against Conestoga. 0 Centro Espirita, 546 U.S. at 434 (since the law does "not preclude exceptions altogether; RFRA makes clear that it is the obligation of the courts to consider" whether "exceptions" must also be afforded because of RFRA). Defendants cannot claim a "grave" or "paramount" interest to impose the Mandate on Conestoga or other religious objectors while allowing 191 million employees to be "unprotected." "[A] law cannot be regarded as protecting an interest 'of the highest order' when it leaves appreciable damage to that supposedly vital interest unprohibited." Lukumi, 508 U.S. at 520; see also Blackhawk, 381 F.3d at 209 (laws undermine their interests when they offer secular exemptions but refuse similarly-situated religious exemptions). No compelling interest exists when the government "fails to enact feasible measures to restrict other conduct producing substantial harm or alleged harm of the same sort." Lukumi, 508 U.S. at 546-47. The exemptions to the Mandate "fatally undermine[] the Government's broader contention that [its law] will be 'necessarily ... undercut'" if Conestoga is exempted too. 0 Centro Espirita, 546 U.S. at 434.
Defendants' grandfathering exemption has nothing to do with a determination that nearly 200 million Americans do not need contraceptive coverage while Conestoga's employees somehow do. The exemption allowed President Obama claim, "If you like your health care plan, you can keep your health care plan."ll If the government exempt 11 See http://www.healthcare.gov/news/factsheets/2010106/keeping-the-health-plan-you-have-
grandfathered.html (last visited Dec. 3,2012). 23

Case 5:12-cv-06744-MSG Document 15 Filed 12/08/12 Page 32 of 49
the "health" and "equality" interests of such a massive group of citizens their "interest" in mandating cost-free birth control coverage cannot possibly be "paramount" or "grave" enough to justify forcing Conestoga to violate their religious beliefs. See 0 Centro Espirita, 546 U.S. at 434 ("Nothing about the unique political status of the [exempted peoples] makes their members immune from the health risks the Government asserts").
In 0 Centro Espirita the Supreme Court held that no compelling interest existed behind a law that had a much more urgent goal, regulating extremely dangerous controlled substances, and that had many fewer exemptions than the broad swath of omissions from the Mandate. In that case the Court dealt with the Controlled Substances Act's prohibition on "all use," with "no exception," of a hallucinogenic ingredient in a tea along with other Schedule I substances. 546 U.S. at 423,425. But because elsewhere in the statute there was a narrow religious exemption for Native American use of a different substance, peyote, the Court held that the government could not meet its compelling interest burden even in its generalized interest in to regulate Schedule I substances as applied to the Plaintiff in that case. Id. at 433. Of even greater importance in the matter at issue here, namely that the government cannot satisfy its burden by pointing to general health benefits of contraception. Halting the use of extremely dangerous drugs is far more urgent than forcing religious objectors to provide contraception coverage. Defendants' grant of secular and religious exemptions for millions of other employees betrays any alleged compelling interest they may have in forcing Conestoga to comply
24

Case 5:12-cv-06744-MSG Document 15 Filed 12/08/12 Page 33 of 49
with the Mandate against their religious beliefs. See e.g., Newland, 2012 WL 3069154 at *14-15 (explaining that since the "government has exempted over 190 million health plan participants," "this massive exemption completely undermines any compelling interest); Tyndale House Publishers, 2012 WL 5817323 at *33 (quoting Lukumi, 508 U.S. at 547, for the proposition that a "law cannot be regarded as protecting an interest of the highest order . . . when it leaves appreciable damage to that supposedly vital interest unprohibited," and ultimately finding that there is no compelling interest in failing to give an exemption to that corporation).
B. The Mandate violates Conestoga's right to Free Exercise of Religion. The Mandate also violates the free exercise clause of the First Amendment of the United States Constitution. "At minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons." Lukumi, 508 U.S. at 532. When the "object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral, and it is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest." Id. at 533. The object of a law can be determined by examining its text and operation. Id. at 534-35.
1. The Mandate is not generally applicable because it disfavors religion. The Mandate lacks "general applicability." Laws lack general applicability when they are underinclusive. Id. at 543. "The Free Exercise Clause protects religious
25

Case 5:12-cv-06744-MSG Document 15 Filed 12/08/12 Page 34 of 49
observers against unequal treatment, and inequality results when a legislature decides that the governmental interests it seeks to advance are worthy of being pursued only against conduct with a religious motivation." 1d. at 542-43 (internal quotation marks and citation omitted). "A law fails the general applicability requirement if it burdens a category of religiously motivated conduct but exempts or does not reach a substantial category of conduct that is not religiously motivated and that undermines the purposes of the law to at least the same degree as the covered conduct that is religiously motivated." Blackhawk, 381 F.3d at 209 (citing Lukumi, 1508 Us. at 543-46). In Lukumi, the Court said that the underinc1usiveness of the city's ban on animal sacrifice was "substantial" because it "fail[ed] to prohibit nonreligious conduct that endangers these interests [in public health and preventing animal cruelty] in a similar or greater degree than Santeria sacrifice does." 508 U.S. at 542-43.
The Mandate is massively underinc1usive, yet Defendants refuse to offer Conestoga an exemption. As described above, nearly 200 million Americans will be exempt from the Mandate in 2013 because their plans will be grandfathered. Mandate, 76 Fed. Reg. at 46623 & n.4; Newland, 2012 WL 5817323 at *18. The Mandate also does not apply to small employers who have the option of dropping insurance, to religious sects opposed to insurance, and to "religious employers" that the Mandate defines as exempt, to entities granted discretionary waivers, and others. Health insurance plans covering millions of Americans can omit all the mandated items and cause all the
26

Case 5:12-cv-06744-MSG Document 15 Filed 12/08/12 Page 35 of 49
same harm alleged by Defendants, but Conestoga still must comply even in violation of their religious beliefs.
There is no physiological or psychological difference between employees that work for religious minded employers and other employees, making contraception beneficial for the latter but not for the former. Defendants have chosen to offer an exemption for some religious employers but they refuse to exempt Conestoga a for profit corporation based on their religious beliefs. The overall apparent intent of the Mandate, selectively allowing secular and religious exemptions, shows that it is a quintessential "not generally applicable law".
The Mandate is not "generally applicable" because it contains both categorical and discretionary exemptions for a variety of reasons, but refuses to exempt objectors such as Conestoga. In cases striking down religiously burdensome laws containing exemptions, Judge Alito explained for the Third Circuit that strict scrutiny applies when discretionary or categorical exemptions exist but religious objections are denied. Blackhawk, 381 F.3d at 209; Fraternal Order of Police, 170 F.3d at 365. Here, in addition to the Mandate's categorical exemptions such as for grandfathered plans, Defendants admit that they possess "discretion" over the exemption they created for "religious employers" and the scope of who is covered. Mandate, 76 Fed. Reg. at 46623-24; 77 Fed. Reg. at 8726. Defendants admit that they could have exempted Conestoga and other non-church
27

Case 5:12-cv-06744-MSG Document 15 Filed 12/08/12 Page 36 of 49
religious objectors, but they chose not to. Meanwhile, their scheme exempts tens of millions for secular reasons.
2. The Mandate is not neutral towards religion. The Mandate's exemptions also show it is not neutral towards religion. "A law lacks facial neutrality if it refers to a religious practice without a secular meaning discernible from the language or context." Lukumi, 508 U.S. at 533. The Mandate explicitly exempts some "religious employers" but not others. This exemption is based on a variety of religious criteria including whether the "inculcation of religious values is the purpose" of the entity, whether "persons who share the religious tenets of' the group are those whom the group primarily hires or serves, and whether the group is a church or religious order. Mandate, 76 Fed. Reg. at 46626. The religious employer definition in the Mandate imposes Defendants' theological notion that employers are only religious if they are churches who stay in their own four walls and focus on self-serving purposes. Defendants have created a caste system of religious employers, favoring one kind of objector because their religion is insular, while penalizing Plaintiff because they pursue their religious tenets within society or the business world instead of in church. The text of the Mandate itself therefore shows an unconstitutionally discriminatory "effect of a law in its real operation," thus showing "strong evidence" that religious objectors beyond Defendants' narrow definition are the "object" of the Mandate, rather than contraceptive access. Lukumi, 508 U.S. at 535.
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Case 5:12-cv-06744-MSG Document 15 Filed 12/08/12 Page 37 of 49
The Mandate constitutes "an impermissible attempt to target" religious objectors that are not insularly-focused. Id. Indeed, the Mandate's criteria impose a governmental view of what really "counts" as religion, even though some religions do not even use the vocabulary of "churches" and do not primarily exercise their beliefs in isolation. This lack of neutrality regarding the notion of what religion is bespeaks of a Free Exercise Clause violation. See Braunfeld v. Brown, 366 U.S. 599,607 (1961) (noting that "[i]fthe purpose or effect of a law is to impede the observance of one or all religions or is to discriminate invidiously between religions, that law is constitutionally invalid even though the burden may be characterized as being only indirect."); see also Lukumi, 508 U.S. at 532 (identifying a Free Exercise Clause violation where a policy prefers some religions to others).
As in Lukumi, the effect of the Mandate is to pick and choose between specifically religious objectors. There, the Supreme Court found an ordinance against animal sacrifice not facially neutral because its operative terms included "sacrifice" and "ritual," terms not typically associated with secular meanings. Lukumi, 508 U.S. at 534. But in practice, it was clear that the object of the ordinance was to exclude the "religious exercise of Santeria church members." Id. at 535. For example, the ordinance exempted from its prohibition almost all killings of animals, except for religious sacrifice. Id. at 536. The Court called this a "religious gerrymander," an impermissible attempt to target [the church] and their religious practices." Id. at 535. As in Lukumi, the Mandate here
29

Case 5:12-cv-06744-MSG Document 15 Filed 12/08/12 Page 38 of 49
exempts "religious employers" that primarily engage in the "inculcation of religious values" and focus on "persons who share the[ir] religious tenets" and are churches or religious orders. Yet the Mandate also does not apply to hundreds of millions of employees for secular reasons, including that they are in grandfathered plans or work for small employers, and for religious reasons if they are in a religious sect opposed to insurance. The fact that most employers already cover contraception, combined with the Mandate's constricted definition of religion, shows that the Mandate is a thinly-veiled attempt not to advance health but to target society's religious "hold outs" who possess beliefs against providing such coverage. 12 The Mandate and its exemptions establish nothing less than a "religious gerrymander" designed to target most religions objectors to contraception, while letting millions of secular employers off the hook. This demonstrates the lack of neutrality. Id. at 537-39.
3. The Mandate fails strict scrutiny. Because the Mandate is neither generally applicable nor neutral it is subject to strict scrutiny, id. at 546. As explained above, Defendants cannot meet this standard.
12 The Mandate's religious employer definition was drafted by the ACLU in California exclude most religious objectors. See ACLU Press Release, "ACLU Applauds CA Supreme Court Decision Promoting Women's Health and Ending Gender Discrimination in Insurance Coverage" (Mar. 1, 2004) ("The ACLU crafted the statutory exemption [at issue] ...."), available at http://www.aciu.org/reproductive-freedom!adu-appiauds-ca-supreme-court-decision-promotingwomens-health-and-ending-gend (last accessed Dec. 3,2012).
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C. The Mandate violates the Establishment Clause. The Mandate also violates the Establishment Clause of the First Amendment. The Mandate's "religious employer" exemption, as discussed above, sets forth Defendants' notion of what "counts" as religion and what doesn't for the purposes of who will be exempt under the Mandate. But the government may not create a caste system of different religious organizations and belief levels when it imposes a burden. Instead it "must treat individual religions and religious institutions 'without discrimination or preference.'" Colo. Christian U v. Weaver, 534 F.3d 1245, 1257 (10th Cir. 2008); Larson v. Valente, 456 U.S. 228 (1982); see also Wilson v. NLRB, 920 F.2d 1282 (6th Cir. 1990) (holding that section 19 of the National Labor Relations Act, which exempts from mandatory union membership any employee who "is a member of and adheres to established and traditional tenets or teachings of a bona fide religion, body, or sect which has historically held conscientious objections to joining or financially supporting labor organizations," is unconstitutional because it discriminates among religions and would involve an impermissible government inquiry into religious tenets), cert. denied, 505 U.S. 1218 (1992). Defendants used their unfettered discretion to pick and choose what criteria qualify a group as "religious" enough for an exemption, and they imposed their constricted theological view of religion on all Americans. The Mandate's four-pronged religious exemption emphasizing "the inculcation of religious values" necessarily
31

Case 5:12-cv-06744-MSG Document 15 Filed 12/08/12 Page 40 of 49
requires the government to explore a religious organization's purpose in impermissible ways. The exemption deems religious organizations insufficiently "religious" if they do not focus on co-religionists in hiring and service, which would involve the government's probing of what exactly count as the organization's religious "tenets," and which disfavors religious believers such as Conestoga who exercise their beliefs not by only working with or for Mennonites but by witnessing their faith by treating everyone with dignity according to their church's teaching. The exemption's restriction of religious employers to a tax code provision identifying churches and religious orders, whose purpose relates to whether paperwork should be filed, bears no reasonable relation to Defendants' alleged interest and is designed to discriminate against religious objectors such as Conestoga. These factors involve the government in "intrusive judgments regarding contested questions of religious belief or practice" in violation of the First Amendment. Weaver, 534 F.3d at 1261.
In Weaver the Tenth Circuit held unconstitutional a discrimination-amongreligions policy that is very similar to the Mandate. The discrimination among religions in that case attempted to treat "pervasively sectarian" education institutions differently than other religious institutions, based on whether the employees and students were of one religious persuasion, the courses sought to "indoctrinate", the governance was tied to particular church affiliation, and similar factors. Id. at 1250-51. The Mandate here likewise draws its line around "religious employers" based on whether the people they
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"hire" or "serve" share the same "religious tenets," whether its purpose is to "inculcate" values, and whether the entity is a church or affiliate. The Tenth Circuit held that such a discriminatory line violates the First Amendment, and the Court rejected as "puzzling and wholly artificial" the government's argument that their law "distinguishes not between types of religions, but between types of institutions." Id. at 1259-60. The Court held that "animus" towards religion is not required to find a First Amendment violation in the presence of such facial discrimination. Id. at 1260.
D. The Mandate violates Conestoga's Freedom of Speech. The Mandate additionally violates the First Amendment by coercing Conestoga to provide for speech that is contrary to their religious beliefs. The "right to speak and the right to refrain from speaking are complementary components of the broader concept of 'individual freedom of mind.'" Wooley v. Maynard, 430 U.S. 705, 714 (1977) (quoting W V. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943)). Accordingly, the First Amendment protects the right to "decide what not to say." Hurley v. Irish-Am. Gay, Lesbian, & Bisexual Group of Boston, 515 U.S. 557, 573 (1995) (internal quotation marks omitted). Thus, "[l]aws that compel speakers to utter or distribute speech bearing a particular message are subject to the same rigorous scrutiny" as those "that suppress, disadvantage, or impose differential burdens upon speech because of its content." Turner Broad. Sys., Inc. v. FCC, 512 U.S. 624, 642 (1994). The "First Amendment protects the right of individuals to hold a point of view different from the majority and to refuse to
33

Case 5:12-cv-06744-MSG Document 15 Filed 12/08/12 Page 42 of 49
foster, in the way [the government] commands, an idea they find morally objectionable." Wooley, 430 U.S. at 715. Here, the Mandate unconstitutionally coerces Conestoga to speak a message they find morally objectionable by requiring that they cover in their insurance plan not only contraception with abortifacient effects, but "patient education and counseling" in favor of such abortifacients, forcing Conestoga to contradict their own strongly held religious beliefs.
II. Conestoga Will Suffer Irreparable Harm Absent an Injunction. Conestoga seek to continue offering their employee insurance plan without
providing abortifacients and counseling/education for the same, and without being subject to the Mandate's harsh penalties, lawsuits and other liability. Without the requested injunction, Conestoga will be coerced in violation of their rights under RFRA and the First Amendment, causing actual and imminent loss of their religious conscience rights starting January 1, 2013. The injury is not slight but amounts to massive fines as well as lawsuits implicating court-ordered relief. 26 U.S.C. § 4980D; 26 U.S.C. § 4980H; 29 U.S.C. § 1132. The coercion of Conestoga's conscience rights and fundamental freedoms in this way is irreparable injury. Kikumura v. Hurley, 242 F.3d 950, 963 (lOth Cir. 2001) ("a plaintiff satisfies the irreparable harm analysis by alleging a violation of RFRA"); accord Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir 1996), and 0 Centro Espirita Beneficente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 995 (lOth Cir.2004); see also Stormans, Inc. v. Selecky, 586 F.3d 1109, 1138 (9th Cir. 2009). See also Elrod v.
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Burns, 427 U.S. 347, 373 (1976) ("The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.")
The free exercise interest protected by RFRA is equivalent, for irreparable harm purposes, to its constitutional derivative, especially since Congress passed RFRA specifically to provide protection for free exercise as understood in the First Amendment. Newland, 2012 WL 3069154 at *4 (irreparable harm established under RFRA claim against Madate); Legatus, 2012 WL 5359630 at *13 (same); Tyndale House publishers, 2012 WL 5817323 at *18 (same). Where Congress has enacted legislation to prevent the injury that forms the basis of Conestoga's claims, violating that statute constitutes irreparable injury. Gov't of Virgin Is., Dep't of Conservation and Cultural Affairs v. Virgin Is. Paving, 714 F.2d 283, 286 (3d Cir. 1983). The fact that Conestoga is likely to succeed on the merits of their fundamental rights claims supports a finding or irreparable injury. See Am. Civil Liberties Union v. Reno, 929 F.Supp, 824, 851 (E.D. Pa. 1996) ("in a case which the injury alleged is a threat to First Amendment interests, the finding of irreparable injury is often tied to the likelihood of success of the merits."), aff'd Reno v. Am. Civil Liberties Union, 521 U.S. 844 (1997). HI. An Injunction Will Cause No Harm to Defendants.
The federal government has only recently imposed this Mandate against religious objectors. Therefore Defendants can offer no evidence to show that harm will come to Conestoga's employees if an injunction issues preventing the Mandate's applicability in
35

Case 5:12-cv-06744-MSG Document 15 Filed 12/08/12 Page 44 of 49
violation of RFRA and the First Amendment. Both the ubiquity of contraception access and government subsidization thereof, and the fact that the government has exempted nearly 200 million Americans from the Mandate already, make it impossible for Defendants to claim that a preliminary injunction for less than on thousand persons in this case will cause harm. IV. The Public Interest Favors a Preliminary Injunction.
The Court of Appeals for the Third Circuit has determined that '[a]s a practical matter, if a plaintiff demonstrates both a likelihood of success on the merits and irreparable injury, it almost always will be the case that the public interest will favor the plaintiff.'" Ramsey v. City ofPittsburgh, 764 F. Supp. 2d 728 (W.D. Pa. 2011) (citing AT & Tv. Winback & Conserve Program, 42 F.3d 1421, 1427, n.8 (3d Cir. 1994)).
The public interest is served by the injunction itself because "one of the goals of the preliminary injunction analysis is to maintain the status quo, defined as the last, peaceable noncontested status of the parties." Kos Pharm., 369 F.3d at 708 (quoting Opticians Ass'n ofAm. V.lndep. Opticians ofAm., 920 F.2d 187 (3d Cir. 1990)). In this case, the status quo is that Plaintiffs have not provided coverage of abortifacient items and the Mandate is not yet applicable to their plan.
"[T]he State 'does not have an interest in the enforcement of an unconstitutional law[.]'" NJ. Retail Merchants Ass 'n v. Sidamon-Eristoff, 669 F.3d 374, 388-89 (3d Cir. 2012) (quoting Am. Civil Liberties Union v. Ashcroft, 332 F.3d240, 247 (3d Cir. 2003)).
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Nor can the government claim the public interest demands imposing the Mandate on Conestoga to benefit its employees when, again, Defendants have voluntarily decided that 200 million Americans need not receive its benefits. The public interest is best served by preventing government officials from compelling individuals to violate their religious conscience rights protected by RFRA, the First Amendment and other laws. See e.g. Tyndale House, 2012 WL 5817323 at *37-38 (finding that the public interest weighs in favor of providing injunctive relief against the Mandate to vindicate rights under RFRA and the First Amendment).
CONCLUSION Defendants' Mandate violates both RFRA and the First Amendment due to its massive burdens on religious exercise, its arbitrary imposition and ample alternative options, and its discrimination among religions. Unless this Court issues a preliminary injunction prior to December 31, 2012, when Conestoga needs to implement their 2013 insurance plan, Conestoga will face the choice of violating their beliefs or suffering massive financial penalties, lawsuits, and potential other liability. Defendants would face no harm from an injunction against their illegal regulatory scheme that already exempt millions of others. Conestoga respectfully requests that this Court issue a preliminary injunction against Defendants' requirement that Conestoga and their insurance plan13
13 This should include the duties of Conestoga's insurance carrier that runs the plan, because the Mandate forces Conestoga to supply abortifacient contraceptives both by penalties on itself and
37

Case 5:12-cv-06744-MSG Document 15 Filed 12/08/12 Page 46 of 49
comply with this so called "contraception" mandate due to the abortifacient contraception and the counseling and education for the same. A form of order is attached. 14

Respectfully submitted this 8th day of December, 2012. Attorneys for Conestoga:

lsi Randall L. Wenger Randall L. Wenger, Esquire PA Attorney ID Number: 86537 Independence Law Center 23 North Front Street Harrisburg, PAl 71 01 717-545-0600 (phone) 717-545-8107 (fax) rwenger@indlawcenter.org

lsi Charles W Proctor. III Charles W. Proctor, III, Esquire PA Attorney ID Number: 23266 Law Offices of Proctor Lindsay & Dixon 1204 Baltimore Pike, Suite 200 Chadds Ford, PA 19317 610-361-8600 (phone) 610-361-8843 (fax) cproctor@cplawl.com

by penalizing insurance providers for providing a plan without such coverage. See § 300gg13(a)(4).
14 Because the public interest in this case, the lack of any financial harm to Defendants from an injunction, and all of the other factors that weigh in Conestoga's favor, Conestoga requests that the Court impose a bond of zero dollars in this instance. RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1215 (lOth Cir. 2009) (court has discretion to order no bond). Under appropriate circumstances, the requirements for a bond may be excused, notwithstanding the literal language if Rule 65 (c). Powelton Civic Home Owners Ass 'n v. Dep't ofHousing and Urban Development, 284 F.Supp. 809, 840 (E.D. Pa, 1968).
38

Case 5:12-cv-06744-MSG Document 15 Filed 12/08/12 Page 47 of 49

UNITED STATES DISTRICT COURT
for the Eastern District of Pennsylvania

CONESTOGA WOOD SPECIALTIES CORP.,

)

a PA Corporation; NORMAN HAHN;

)

NORMAN LEMAR HAHN and ANTHONY H. HAHN

)

Plaintiffs,

)

v.

) Civil Action No. 5: 12-CV-06744-MSG

UNITED STATES DEPARTMENT OF HEALTH AND

)

HUMAN SERVICES; UNITED STATES DEPARTMENT )

OF LABOR; UNITED STATES DEPARTMENT OF

)

TREASURY; KATHLEEN SEBELIUS, in her official capacity )

as Secretary of the United States Department of Health and )

Human Services; HILDA SOLIS, in her official capacity as )

Secretary of the United States Department of Labor; and

)

TIMOTHY GEITHNER, in his official capacity as Secretary )

of the United States Department of Treasury.

)

Defendants.

)

CERTIFICATION OF SERVICE
The undersigned counsel for Plaintiffs, Charles W. Proctor, III, Esquire, hereby certifies that the following counsel for Defendants were served with the proceeding document by the Court's ECF filing system on December 8, 2012:

U.S. Dep't. of Health and Human Services 200 Independence Avenue S.W. Washington, DC 20201

Kathleen Sebelius, in her official capacity as Secretary of the U.S. Dep't of Health and Human Services 200 Independence Avenue S.W. Washington, DC 20201

U.S. Dep't of the Treasury 1500 Pennsylvania Avenue N.W. Washington, DC 20220

Timothy Geithner, in his official capacity as Secretary of the U.S. Dep't of Treasury 1500 Pennsylvania Avenue N.W. Washington, DC 20220

Case 5:12-cv-06744-MSG Document 15 Filed 12/08/12 Page 48 of 49

u.s. Dep't of Labor
Frances Perkins Bldg. 200 Constitution Avenue N.W. Washington, DC 20201
Eric H. Holder, Jr. Attorney General of the United States U.S. Department of Justice 20 Massachusetts Avenue N.W. Washington, DC 20001

Linda Solis, in her official capacity as Secretary of the U.S. Dep't of Labor Frances Perkins Bldg. 200 Constitution Avenue N.W. Washington, DC 20201
Zane David Memeger U.S. Attorney's Office Eastern District of Pennsylvania 615 Chestnut Street, Suite 1250 Philadelphia, PA 19106

lsi Charles W Proctor, III Charles W. Proctor, III, Esquire

Case 5:12-cv-06744-MSG Document 15 Filed 12/08/12 Page 49 of 49

UNITED STATES DISTRICT COURT
for the Eastern District of Pennsylvania

CONESTOGA WOOD SPECIALTIES CORP.,

)

Plaintiffs,

)

v.

)

UNITED STATES DEPARTMENT OF HEALTH AND

)

HUMAN SERVICES; UNITED STATES DEPARTMENT )

OF LABOR; UNITED STATES DEPARTMENT OF

)

TREASURY; KATHLEEN SEBELIUS, in her official capacity )

as Secretary of the United States Department of Health and

)

Human Services; HILDA SOLIS, in her official capacity as )

Secretary of the United States Department of Labor; and

)

TIMOTHY GEITHNER, in his official capacity as Secretary )

of the United States Department of Treasury.

)

Defendants.

)

Civil Action No. 5: 12-CV-06744-MSG

CERTIFICATION OF SERVICE

The undersigned counsel for Plaintiffs, Charles W. Proctor, III, Esquire, hereby certifies that the following counsel for Defendants were served with the Brief in Support of Motion for Preliminary Injunction proceeding document by placing in the United State Postal Service, on December 8, 2012:

U.S. Dep't. of Health and Human Services 200 Independence Avenue S.W. Washington, DC 20201

Kathleen Sebelius, in her official capacity as Secretary of the U.S. Dep't of Health and Human Services 200 Independence Avenue S.W. Washington, DC 20201

lsi Charles W Proctor. III Charles W. Proctor, III, Esquire

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

CONESTOGA WOOD SPECIALITIES :

CORPORATION, et al.

:

:

:

v.

:

:

KATHLEEN SEBELIUS, et al.

:

CIVIL ACTION No. 12-6744

Goldberg, J.

January 11, 2013

MEMORANDUM OPINION
This case presents issues of first impression as to whether the Women’s Preventive Healthcare regulations under the recently enacted Patient Protection and Affordable Care Act pass muster under the First Amendment and the Religious Freedom Restoration Act of 1993. In resolving these questions we also decide whether the United States Supreme Court’s decision in Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010), which granted political free speech rights to corporations, also extends to the First Amendment’s Free Exercise of Religion Clause.
Plaintiffs, Conestoga Wood Specialties Corporation, and five of its owners, Norman Hahn, Elizabeth Hahn, Norman Lemar Hahn, Anthony H. Hahn and Kevin Hahn, brought suit against Kathleen Sebelius in her official capacity as Secretary of the United States Department of Health and

1

Human Services, along with other United States government officials and agencies,1 seeking declaratory and injunctive relief. Plaintiffs allege that various regulations and guidelines implemented in connection with the Patient Protection and Affordable Care Act of 2010, Pub. L. No. 111-148, violate the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb, et seq., the First and Fifth Amendments to the United States Constitution and the Administrative Procedure Act, 5 U.S.C. § 701, et seq. Specifically, Plaintiffs object to regulations regarding Women’s Preventive Healthcare—which Plaintiffs refer to as “the Mandate”— that allegedly “force [them] to pay for and otherwise facilitate the insurance coverage and use of contraception with an abortifacient effect and related education and counseling.” Plaintiffs claim that these regulations conflict with their sincerely-held religious beliefs. (Am. Compl. ¶¶ 2, 4.)
Plaintiffs filed a motion for preliminary injunction on December 7, 2012, and the Court held an evidentiary hearing on January 4, 2013.2 We have also accepted and considered an amicus brief from the American Civil Liberties Union Foundation and the American Civil Liberties Union of Pennsylvania.
For the reasons that follow, we find that Plaintiffs have not shown that they are entitled to a preliminary injunction, and, as such, the motion will be denied.
1 The complete list of Defendants is as follows: Kathleen Sebelius, in her official capacity as Secretary of the United States Department of Health and Human Services; Hilda Solis, in her official capacity as Secretary of the United States Department of Labor; Timothy Geithner, in his official capacity as Secretary of the United States Department of the Treasury; United States Department of Health and Human Services; United States Department of Labor; and United States Department of the Treasury.
2 On December 28, 2012, we entered an Order for a temporary stay pending an evidentiary hearing. (Doc. No. 35.) Absent this temporary stay, Conestoga would have been required to comply with the regulations on January 1, 2013.
2

I. FACTUAL AND PROCEDURAL BACKGROUND3 A. The Affordable Care Act The Patient Protection and Affordable Care Act (“ACA”), which was signed into law on
March 23, 2010, requires employers with fifty or more full-time employees to provide their employees with a minimum level of health insurance. One aspect of this minimum level of coverage is that employers and health insurance companies are required to cover women’s “preventive health services,” and are prohibited from imposing cost-sharing for plan beneficiaries. 42 U.S.C. § 300gg13(a)(4).
The Health Resources and Services Administration (“HRSA”) delegated the creation of guidelines on this issue to the Institute of Medicine (“IOM”). See 77 FR 8725-01 (Feb. 15, 2012). On August 1, 2011, the HRSA adopted the recommended guidelines published by the IOM, which included required coverage for “the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” INSTITUTE OF MEDICINE, CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS 109-10 (2011) (hereinafter “CLOSING THE GAPS”); see also 76 Fed. Reg. 46621-01 (Aug. 3, 2011).
Under the regulations adopted pursuant to Women’s Preventive Healthcare, group health plans and health insurance issuers are required to provide coverage consistent with the HRSA guidelines in plan years beginning on or after August 1, 2012, unless the employer or plan is exempt. Women’s Preventive Services: Required Health Plan Coverage Guidelines, U.S. DEPT. OF HEALTH AND HUMAN SVCS., http://www.hrsa.gov/womensguidelines/ (last visited Jan. 8, 2013) (“HRSA
3 All facts are undisputed, unless otherwise noted. 3

Guidelines”). The interim final regulations and guidelines were adopted without change on April 16, 2012. 77 FR 8725-01 (Feb. 15, 2012).
Congress required coverage of Women’s Preventive Healthcare in order to address inequities in the current healthcare system, which leads “women of childbearing age [to] spend 68 percent more in out-of-pocket health care costs than men.” 155 Cong. Rec. at S12027 (daily ed. Dec. 1, 2009) (statement of Sen. Gillibrand). Studies have found “more than half of women delay[ ] or avoid[ ] preventive care because of its cost,” id. at S12028, and that unplanned pregnancies have a higher rate of health risks for both mother and child than planned pregnancies. CLOSING THE GAPS, supra, at 103.
If an employer fails to comply with these regulations, it faces staunch penalties. Non-exempt employers who choose to exclude health coverage for abortifacient contraception face a penalty of $100 each day per offending employee. 26 U.S.C. § 4980D(b)(1). If an employer fails to provide health insurance altogether, it faces an annual penalty for each employee. See 26 U.S.C. § 4980H. Additionally, the Department of Labor and plan participants may bring suit against an employer that fails to comply with the regulations. 29 U.S.C. § 1132.
The Women’s Preventive Healthcare regulations contain numerous exemptions for specific subsets of employers. One such exemption is for “grandfathered” plans—“coverage provided by a group health plan . . . in which an individual was enrolled as of March 23, 2010,” the date on which the ACA was enacted. 45 C.F.R. § 147.140(a). An exemption with regard to women’s contraception also exists for certain “religious employers.” A religious employer is defined as an organization meeting all of the following requirements:
(1) The inculcation of religious values is the purpose of the organization.
4

(2) The organization primarily employs 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. . . . 45 C.F.R. § 147.130(a)(1)(iv)(B); 77 FR 8725-01 (Feb. 15, 2012). Finally, employers with fewer than fifty full-time employees are required to provide coverage for Women’s Preventative Healthcare within any health plan provided to employees, but are permitted to entirely forego providing insurance without penalty. 26 U.S.C. § 4980H(c)(2)(A). Upon receiving feedback from organizations that objected to contraception coverage on religious grounds but also did not fit under the definition of “religious employer,” the Department of the Treasury, Department of Labor and Department of Health and Human Services released an advance notice of proposed amendments to the regulations. 77 FR 16501-01 (Mar. 21, 2012). The agencies gave notice of a safe harbor for certain non-profit organizations that object to the mandatory coverage of contraception. Under this safe harbor, a qualifying organization would not be subject to penalties for failing to comply with the regulations regarding Women’s Preventive Healthcare until the first plan year on or after August 1, 2013. This respite would allow the agencies time to potentially amend the definition of religious employer. Id. The safe harbor applies to organizations meeting all of the following requirements: (1) The organization is organized and operates as a non-profit entity. (2) From February 10, 2012 onward, contraceptive coverage has not been provided at any point by the group health plan established or maintained by the organization, consistent with any applicable State law, because of the religious beliefs of the organization. (3) . . . [T]he group health plan established or maintained by the organization . . . must provide to participants [a]n attached notice . . . which states that contraceptive
5

coverage will not be provided. . . . (4) The organization self-certifies that it satisfies criteria 1-3 above. . . . Guidance on the Temporary Enforcement Safe Harbor for Certain Employers, CTR. FOR CONSUMER INFO. & INS. OVERSIGHT & CTRS. FOR MEDICARE & MEDICAID SVCS. (Feb. 10, 2012), http://cciio.cms.gov/resources/files/Files2/02102012/20120210-Preventive-Services-Bulletin.pdf. B. The Plaintiffs Plaintiff, Conestoga Wood Specialties Corporation (“Conestoga”), is a closely-held, for-profit Pennsylvania corporation that manufactures wood cabinets and wood specialty products. It is owned and operated by Plaintiffs Norman Hahn, Elizabeth Hahn, Norman Lemar Hahn, Anthony H. Hahn, and Kevin Hahn (“the Hahns”), the founder of Conestoga, his wife and their sons, respectively.4 In addition to being shareholders, the Hahns maintain various positions on the board of directors, and Plaintiff Anthony H. Hahn serves as President and Chief Executive Officer of Conestoga. The corporation presently employs approximately 950 full-time employees. (Am. Compl. ¶¶ 11-16, 37.) The Hahns are practicing Mennonite Christians whose faith requires them to operate Conestoga in accordance with their religious beliefs and moral principles. (Id. at ¶¶ 2, 27.) Conestoga’s mission statement includes the following language: “We operate in a professional environment founded upon the highest ethical, moral, and Christian principles reflecting respect, support, and trust for our customers, our suppliers, our employees and their families.” (Pls.’ Br., Ex. 1.) Both Conestoga and the Hahns make annual contributions to various charities and community organizations in accordance with the Hahns’ religious beliefs. (Am. Compl. ¶ 35.) Further, on
4 These five members of the Hahn family possess 100% of the voting shares of Conestoga’s stock. Additional, non-voting shares are held by other members of the Hahn family. (Hrg. Tr., Jan. 4, 2013, pp. 11, 19.)
6

October 31, 2012, the board of directors adopted “The Hahn Family Statement on the Sanctity of
Human Life.”5 (Pls.’ Br., Ex. 5.) Conestoga’s Articles of Incorporation are silent as to any religious
purpose or belief. (Defs.’ Br., Ex. 1.)
Conestoga provides employees with a health insurance plan that covers a number of women’s
preventive health expenses, such as pregnancy-related care, routine gynecological care and testing for
sexually transmitted diseases. (Am. Compl. ¶ 84.) However, Conestoga’s health plan specifically
excludes coverage for “contraceptive prescription drugs” and “[a]ny drugs used to abort a pregnancy.”
(Pls.’ Br., Ex. 6.)
“The Mennonite Church teaches that taking of life which includes anything that terminates
a fertilized embryo is an intrinsic evil and a sin against God.” (Am. Compl. ¶ 30.) Therefore, the
Hahns believe it would be sinful for them to pay for, or contribute in any way to, the use of
abortifacient contraception, which they define as, any drug or device that may “terminate[ ] a
fertilized embryo.” (Id. at ¶¶ 30, 32.) The Hahns specifically object to prescription plan coverage of
5 This statement provides that: “The Hahn family has always believed that the Bible is the inspired, infallible, and authoritative written word of God, the one and only eternal God. Found in the Bible, Exodus 20:13 (NIV) as one of the ‘Ten Commandments[,]’ God commands, ‘You shall not murder[.]’ Found in the Bible, Psalms 139:13-16 (NIV), the writer acknowledges God in how he was made and says[,] ‘For you created my inmost being; you knit me together in my mother’s womb. I praise you because I am fearfully and wonderfully made; your works are wonderful, I know that full well. My frame was not hidden from you when I was made in the secret place, when I was woven together in the depths of the earth. Your eyes saw my unformed body; all the days ordained for me were written in your book before one of them came to be.’ The Hahn Family believes that human life begins at conception (at the point where an egg and sperm unite) and that it is a sacred gift from God and only God has the right to terminate human life. Therefore it is against our moral conviction to be involved in the termination of human life through abortion, suicide, euthanasia, murder, or any other acts that involve the deliberate taking of human life.”
7

“Plan B,” commonly known as the “morning after pill,” and “Ella,” also known as the “week after pill.”6 (Id. at ¶¶ 45-46.)
As a for-profit corporation, Conestoga does not fit into an exemption for religious employers, nor does it fall under the safe harbor. Additionally, Conestoga’s health plan does not qualify as a grandfathered plan under 26 C.F.R. § 54.9815-1251T. Therefore, Plaintiffs are currently left to choose between providing coverage to employees for abortifacient contraception, which they contend violates their right to religious freedom, or pay significant financial penalties. Confronted with this choice, Plaintiffs filed the instant motion for preliminary injunction. II. STANDARD OF REVIEW
“Preliminary injunctive relief is ‘an extraordinary remedy’ and ‘should be granted only in limited circumstances.’” Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004) (quoting American Tel. & Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1427 (3d Cir. 1994)). In order for a court to grant a motion for preliminary injunction, the moving party must demonstrate: “(1) a likelihood of success on the merits; (2) that it will suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will not result in even greater harm to the nonmoving party; and (4) that the public interest favors such relief.” Id. at 708. “The injunction shall issue only if the plaintiff produces evidence sufficient to convince the district court that all four factors favor preliminary relief.” N.J. Hosp. Ass’n v. Waldman, 73 F.3d 509, 512 (3d Cir. 1995) (citing American Tel & Tel Co., 42 F.3d at 1427).
In demonstrating the likelihood of success on the merits, a plaintiff need not show that it is
6 We note that Defendants do not agree that Plan B or Ella can cause the termination of a fertilized egg. However, Defendants agree that it is Plaintiffs’ belief that these drugs can have an abortifacient effect. (Hrg. Tr., Jan. 4, 2013, p. 69.)
8

more likely than not that he will succeed. Singer Mgmt. Consultants, Inc. v. Milgram, 650 F.3d 223, 229 (3d Cir. 2011). Instead, a plaintiff must “show[ ] a reasonable probability of success on the merits.” American Express Travel Related Svcs., Inc. v. Sidamon-Eristoff, 669 F.3d 359, 366 (3d Cir. 2012).
We note that other courts that have decided cases with similar facts and ruled in favor of injunctive relief have generally applied a less rigorous standard. For example, in Tyndale House Publishers, Inc. v. Sebelius, 2012 WL 5817323 (D.D.C. Nov. 16, 2012), when evaluating the preliminary injunction factors, the district court applied a “sliding scale approach,” whereby an unusually strong showing of one factor lessens a plaintiff’s burden in demonstrating a different factor. Id. at *4; see also Korte v. Sebelius, 2012 WL 6757353, at *2 (7th Cir. Dec. 28, 2012) (“[w]e evaluate a motion for an injunction pending appeal using the . . . ‘sliding scale’ approach”); Sharpe Holdings, Inc. v. U.S. Dept. of Health & Human Svcs., 2012 WL 6738489, at *4 (E.D. Mo. Dec. 31, 2012) (“[i]n balancing the equities no single factor is determinative”) (quoting Dataphase Sys., Inc. v. CL Sys. Inc., 640 F.2d 109, 113 (8th Cir. 1981)); Monaghan v. Sebelius, 2012 WL 6738476, at *3 (E.D. Mich. Dec. 30, 2012) (same); American Pulverizer Co. v. U.S. Dept. of Health & Human Svcs., No. 12-3459-CV-S-RED, slip op. at 4 (W.D. Mo. Dec. 20, 2012) (same); Legatus v. Sebelius, 2012 WL 5359630, at *3 (E.D. Mich. Oct. 31, 2012) (same). The United States Court of Appeals for the Third Circuit, however, has no such “sliding scale” standard, and Plaintiffs must show that all four factors favor preliminary relief. Pitt News v. Fisher, 215 F.3d 354, 365-66 (3d Cir. 2000). III. DISCUSSION
A. Article III Standing As a preliminary matter, we must determine whether a “case or controversy” exists, such that
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this Court has jurisdiction under Article III. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). A plaintiff bears the burden of demonstrating that he has Article III standing. ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 301 (3d Cir. 2012). To satisfy this burden, a plaintiff must show:
(1) that he is under a threat of suffering an injury in fact that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; (2) a causal connection between the injury and the conduct complained of; and (3) a likelihood that a favorable judicial decision will prevent or redress the injury. Id. (citing Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)) (internal quotation marks omitted). Defendants assert that Plaintiffs have not satisfied the standing requirement because “[P]laintiffs cannot show that any injury purportedly caused by the preventive services coverage regulations is fairly traceable to [D]efendants, as opposed to the result of [P]laintiffs’ own independent choices.” (Defs.’ Br., pp. 9-10.) Specifically, Defendants argue that Conestoga’s health insurance plan would have been exempt from the regulations as a grandfathered plan, but that Plaintiffs failed to follow the requirements of 26 C.F.R. § 54.9815-1251T. Therefore, Defendants urge that any injury is self-inflicted, and does not satisfy the requirements for Article III standing. We disagree. Under the second prong of the test for standing, Plaintiffs must demonstrate that the injury is “fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.” Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1442 (2011) (alteration in original) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)) (internal quotation marks omitted). Although Plaintiffs admit that Conestoga could have qualified for grandfathered status if it had maintained the same plan as that provided in
10

previous years, (Hrg. Tr., Jan. 4, 2013, pp. 61-62), Defendants acknowledge that “grandfathering is
not really a permanent ‘exemption,’ but rather, over the long term, a transition in the marketplace
with respect to . . . the preventive services coverage provision.” (Defs.’ Resp., p. 26.) Thus, it
cannot be said that Defendants play no role in the alleged injury to the Plaintiffs, since, according
to Defendants, Conestoga would be subject to the regulations eventually, even if it initially qualified
for grandfathered status. As such, we are satisfied that Plaintiffs have demonstrated Article III
standing.
B. Likelihood of Success on the Merits
We are mindful that this case is one of many filed against the government in recent months
by secular, for-profit corporations and their owners regarding the Women’s Preventive Healthcare
regulations. These lawsuits, most of which have sought preliminary injunctions, present complicated
issues of first impression, such as whether a corporation has free exercise protections under the First
Amendment of the Constitution, and whether the Women’s Preventive Healthcare regulations create
a “substantial burden” on Plaintiffs’ exercise of religion under the Religious Freedom Restoration
Act (“RFRA”). Not surprisingly, courts who have considered these issues have reached different outcomes.7
7 Compare Korte v. Sebelius, 2012 WL 6757353 (7th Cir. Dec. 28, 2012) (granting injunction pending appeal), O’Brien v. U.S. Dept. of Health & Human Svcs., No. 12-3357 (8th Cir. Nov. 28, 2012) (granting “[a]ppellants’ motion for stay pending appeal,” without further comment), Sharpe Holdings, Inc. v. U.S. Dept. of Health & Human Svcs., 2012 WL 6738489 (E.D. Mo. Dec. 31, 2012) (granting motion for temporary restraining order), Monaghan v. Sebelius, 2012 WL 6738476 (E.D. Mich. Dec. 30, 2012) (same), American Pulverizer Co. v. U.S. Dept. of Health & Human Svcs., No. 12-3459-CV-S-RED, slip op. (W.D. Mo. Dec. 20, 2012) (granting preliminary injunction), Tyndale House Publishers, Inc. v. Sebelius, 2012 WL 5817323 (D.D.C. Nov. 16, 2012) (same), Legatus v. Sebelius, 2012 WL 5359630 (E.D. Mich. Oct. 31, 2012) (same), and Newland v. Sebelius, 2012 WL 3069154 (D. Colo. July 27, 2012) (same), with Autocam Corp. v. Sebelius, No. 12-2673, slip op. (6th Cir. Dec. 28, 2012) (denying preliminary injunction pending appeal), Hobby Lobby Stores, Inc.
11

In their motion, Plaintiffs argue the merits of their claims under the First Amendment and the RFRA. We will address each of these claims in turn.
1. The Free Exercise Clause of the First Amendment The Free Exercise Clause of the First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. CONST. amend. I. Plaintiffs argue that the operation of Conestoga in accordance with the Hahns’ religious beliefs constitutes the “exercise of religion” under the Free Exercise Clause, and that being forced to provide coverage for all FDA-approved contraception substantially burdens their religious beliefs. In resolving this issue, we must, as a threshold matter, determine whether Plaintiffs have “free exercise” rights under the First Amendment. The Hahns certainly possess these rights. We conclude, however, that Conestoga, as a for-profit, secular corporation, does not.
i. Conestoga’s Free Exercise Rights Neither the Supreme Court nor the Third Circuit have had occasion to decide whether forprofit, secular corporations possess the religious rights held by individuals. Certainly, a number of constitutional freedoms have been extended to corporations. See e.g., Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 913 (2010) (“the Government may not suppress political speech on the basis of the speaker’s corporate identity”); United States v. Martin Linen Supply Co., 430 U.S. 564 (1977) (applying the Fifth Amendment’s double jeopardy protections to a corporation); G.M. Leasing Corp. v. United States, 429 U.S. 338 (1977) (extending Fourth Amendment search and seizure protections to a corporation). However, there are certain “purely personal” guarantees that
v. Sebelius, No. 12-6294, slip op. (10th Cir. Dec. 20, 2012) (same), and Grote Indus., LLC v. Sebelius, 2012 WL 6725905 (S.D. Ind. Dec. 27, 2012) (denying motion for preliminary injunction).
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are unavailable to corporations. First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 778, n.14 (1978) (citing United States v. White, 322 U.S. 694, 698-701 (1944)); see also Wilson v. United States, 221 U.S. 361, 382-86 (finding that the privilege against self-incrimination does not apply to corporations); Cal. Bankers Ass’n v. Schultz, 416 U.S. 21, 65-67 (1974) (declining to extend to a corporation the right to privacy to the same extent as individuals). “Whether or not a particular guarantee is ‘purely personal’ or is unavailable to corporations for some other reason depends on the nature, history, and purpose of the particular constitutional provision.” Bellotti, 435 U.S. at 778, n.14.
Plaintiffs cite to Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010), for the proposition that a secular, for-profit corporation has free exercise rights under the Constitution. In Citizens United, the Supreme Court held a provision of the Bipartisan Campaign Reform Act of 2002 unconstitutional because it impeded corporations’ abilities to engage in political discourse in violation of the Free Speech Clause of the First Amendment. Id. at 917. In reaching its decision, the Court focused on the history and purpose of free speech rights, particularly political speech, noting that “[t]he First Amendment has its fullest and most urgent application to speech uttered during a campaign for political office.” Id. at 898 (quoting Eu v. San Francisco Cnty. Democratic Central Comm., 489 U.S. 214, 223 (1989)) (quotation marks omitted). Citizens United built upon the long-accepted principle that corporations have free speech rights protected by the Constitution. See id. at 899-900 (citing numerous cases that found corporations to have free speech rights under the First Amendment). However, we find no such historical support for the proposition that a secular, for-profit corporation possesses the right to free exercise of religion.
Plaintiffs urge that the rights to free speech and free exercise of religion are inseparable, and
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thus Citizens United must extend to the Free Exercise Clause. (Hrg. Tr., Jan. 4, 2013, p. 27.) This
argument assumes too much. Although they reside within the same constitutional amendment, these
two provisions have vastly different purposes and precedents, and we decline to make the significant
leap Plaintiffs ask of us without clear guidance from Congress or the Supreme Court.8
Plaintiffs also urge this Court to find that Conestoga has free exercise rights by citing to cases
in which religious organizations were granted free exercise protections. While religious
organizations, as a means by which individuals practice religion, have been afforded free exercise
rights, see Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 706 (2012)
(“the text of the First Amendment . . . gives special solicitude to the rights of religious
organizations”); see also Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418
(2006); Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), courts have
consistently limited such holdings to religious organizations.9 We find the distinction between
religious organizations and secular corporations to be meaningful, and decline to act as though this
8 We recognize that a number of courts that have considered this issue have cited Citizens United for the proposition that secular corporations may have free exercise rights. See Korte v. Sebelius, 2012 WL 6757353, at *3; Legatus, 2012 WL 5359630, at *4. However, these courts provided little explanation for their findings, and we disagree for the reasons stated supra.
9 In determining whether an organization constitutes a “religious organization,” courts weigh the following factors: “(1) whether the entity operates for a profit[;] (2) whether it produces a secular product[;] (3) whether the entity’s articles of incorporation or other pertinent documents state a religious purpose[;] (4) whether it is owned, affiliated with or financially supported by a formally religious entity such as a church or synagogue[;] (5) whether a formally religious entity participates in the management . . . [;] (6) whether the entity holds itself out to the public as secular or sectarian[;] (7) whether the entity regularly includes prayer or other forms of worship in its activities[;] (8) whether it includes religious instruction in its curriculum . . . [;] and whether its membership is made up by coreligionists.” LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 226 (3d Cir. 2007).
Conestoga, as a for-profit company, creating a secular product, with no formal ties to a church or other religious group, clearly does not meet the definition of a religious organization.
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difference does not exist. The purpose of the Free Exercise Clause is “to secure religious liberty in the individual by
prohibiting any invasions thereof by civil authority.” Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 223 (1963) (emphasis added). Religious belief takes shape within the minds and hearts of individuals, and its protection is one of the more uniquely “human” rights provided by the Constitution. As recognized in Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278 (W.D. Okla. 2012), “[g]eneral business corporations . . . do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors.” Id. at 1291. Therefore, we conclude that the nature, history and purpose of the Free Exercise Clause demonstrate that it is one of the “purely personal” rights referred to in Bellotti, and as such, is unavailable to a secular, for-profit corporation.
Alternatively, Plaintiffs argue that, as a closely-held corporation, with shareholders who all practice the Mennonite faith, Conestoga may act as the Hahns’ “alter-ego,” and thus assert the Hahns’ religious rights on their behalf. Plaintiffs cite to Tyndale House Publishers, Inc. v. Sebelius, 2012 WL 5817323 (D.D.C. Nov. 16, 2012), a case in which the plaintiffs also challenged the ACA Women’s Preventive Healthcare regulations, for support. Tyndale held that where the beliefs of a closely-held corporation and its owners are indistinguishable, “united by their [ ] faith . . . [and] shared, religious objectives[,]” the corporation has standing to assert the free exercise rights of its owners. Id. at *7. Tyndale largely relied upon two cases from the United States Court of Appeals for the Ninth Circuit in reaching this conclusion: Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir.
15

2009) and EEOC v. Townley Engineering and Manufacturing Co., 859 F.2d 610 (9th Cir. 1988).10
In Stormans and Townley, the Ninth Circuit held that a closely-held corporation that “does not
present any free exercise rights of its own different from or greater than its owners’ rights . . . has
standing to assert the free exercise rights of its owners.” Stormans, 586 F.3d at 1120; see also
Townley, 859 F.2d at 619-20. We are not persuaded by this line of reasoning.
“[I]ncorporation’s basic purpose is to create a distinct legal entity, with legal rights,
obligations, powers, and privileges different from those of the natural individuals who created it,
who own it, or whom it employs.” Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 163
(2001). “Even when a corporation is owned by one person or a family, the corporate form shields
the individual members of the corporation from personal liability.” Kelleytown Co. v. Williams, 426
A.2d 663, 668 (Pa. Super. Ct. 1981). It would be entirely inconsistent to allow the Hahns to enjoy
the benefits of incorporation, while simultaneously piercing the corporate veil for the limited purpose
of challenging these regulations. We agree with the Autocam court, which stated that this separation
between a corporation and its owners “at a minimum [ ] means the corporation is not the alter ego of its owners for purposes of religious belief and exercise.”11 Autocam Corp. v. Sebelius, No. 1:12-
10 Plaintiffs also cite to Legatus v. Sebelius, 2012 WL 5359630, at *4 (E.D. Mich. Oct. 31, 2012), in which the court found “a strong case for standing, at least on a Stormans pass-through instrumentality theory.” For the sake of simplicity, we will focus on the Tyndale decision in our analysis.
11 We further note that the facts in the present case are distinguishable from the facts in Tyndale. The Tyndale court relied on the plaintiff’s unique corporate structure in reaching its decision. Tyndale House Publishers, Inc. is a Christian, faith-based book publisher that holds weekly chapel service for its employees and is 96.5% owned by a religious non-profit organization. Tyndale’s Articles of Incorporation make numerous references to the corporation’s religious purpose and its board members and trustees are required to sign a statement of faith each year, demonstrating their religious convictions. Tyndale, 2012 WL 5817323, at *6-7.
(continued...) 16

cv-1096, slip op. at 12 (W.D. Mich. Dec. 24, 2012) (emphasis in original). Accordingly, we conclude that Conestoga cannot assert free exercise rights under the First
Amendment, and therefore, cannot demonstrate a likelihood of success on the merits for a free exercise claim.
ii. Hahns’ Free Exercise Rights Next, we must assess the Hahns’ likelihood of success on their free exercise claim. “At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993). Where a law is found to violate the Free Exercise Clause, “it is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest.” Id. at 533. The Free Exercise Clause is not, however, violated by a “valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that [a plaintiff’s] religion prescribes (or proscribes).” Emp’t Div., Dept. of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990) (quoting United States v. Lee, 455 U.S. 252, 263, n.3 (1982)). A neutral law of general applicability need only be “rationally related to a legitimate government objective” to be upheld. Combs v. Homer-Ctr. Sch. Dist., 540 F.3d 231, 243 (3d Cir. 2008) (quoting Tenafly Eruv Ass’n, Inc. v. Tenafly, 309 F.3d 144, 165, n. 24 (3d Cir. 2002)). Plaintiffs first argue that the regulations are not generally applicable because they are
11(...continued) Conestoga, on the other hand, has none of these characteristics. We do not doubt that the Hahns’ religious convictions have influenced the manner in which they operate Conestoga. (See Exs. 1-5.) However, the substantial overlap of faith and business found in Tyndale is simply not present here.
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underinclusive. Specifically, Plaintiffs point to the exemptions for grandfathered plans, small employers who may forego providing insurance without penalty and religious employers. A regulation is not generally applicable “if it is enforced against a category of religiously motivated conduct, but not against a substantial category of conduct that is not religiously motivated and that undermines the purposes of the law to at least the same degree as the covered conduct that is religiously motivated.” McTernan v. City of York, 564 F.3d 636, 648 (3d Cir. 2009) (internal citations omitted). The Women’s Preventive Healthcare regulations, however, apply to all health plans “not falling under an exemption, regardless of those employers’ personal religious inclinations.” O’Brien v. U.S. Dept. of Health & Human Svcs., 2012 WL 4481208, at *8 (E.D. Mo. Sept. 28, 2012). They are not specifically targeted at conduct motivated by religious belief.
Plaintiffs also argue that the Women’s Preventive Healthcare regulations are not neutral because they exclude some religious employers but not others. “A law is ‘neutral’ if it does not target religiously motivated conduct either on its face or as applied in practice.” Blackhawk v. Pennsylvania, 381 F.3d 202, 209 (3d Cir. 2004). The fact that exemptions were made for religious employers does not indicate that the regulations seek to burden religion. Instead, it shows that the government made efforts to accommodate religious beliefs, which counsels in favor of the regulations’ neutrality. See O’Brien, 2012 WL 4481208, at *8 (“the religious employer exemption presents a strong argument in favor of neutrality”). It is clear from the history of the regulations and the report published by the Institute of Medicine that the purpose of the Women’s Preventive Healthcare regulations is not to target religion, but instead to promote public health and gender equality, and Plaintiffs have not presented any evidence to the contrary. See Hobby Lobby, 870 F. Supp. 2d at 1289-90; O’Brien, 2012 WL 4481208, at *7.
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As Defendants can clearly demonstrate that the regulations are “rationally related to a legitimate government objective,” the regulations do not offend the Free Exercise Clause. Consequently, Plaintiffs have failed to show a likelihood of success on the merits of their free exercise claim.
2. The Religious Freedom Restoration Act The Religious Freedom Restoration Act (“RFRA”) states that, “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability,” unless the government can demonstrate that “the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1.12 The plaintiff has the burden of establishing the elements of a prima facie case: that application of the offensive law or policy would substantially burden a sincere, religious exercise. See Norwood v. Strada, 249 Fed. Appx. 269, 271 (3d Cir. 2007). Once a prima facie case has been satisfied, the government bears the burden of demonstrating a compelling interest and that the government employed the least restrictive means in carrying out that interest. Adams v. Comm’r of Internal Revenue, 170 F.3d 173, 176 (3d Cir. 1999); see also Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418, 428-29 (2006) (under the RFRA, “the burdens at the preliminary injunction stage track the burdens at trial”).
12 The Supreme Court has held that the RFRA exceeds Congress’s power under Section 5 of the Fourteenth Amendment, and is therefore unconstitutional as applied to the states. City of Boerne v. Flores, 521 U.S. 507 (1997). Although the Third Circuit has never explicitly decided whether the RFRA is constitutional as applied to the federal government, the parties do not contest the constitutionality or applicability of the RFRA in this case. Therefore, we “assume without deciding that [the] RFRA is constitutional as applied to the federal government.” Norwood v. Strada, 249 Fed. Appx. 269, 271, n. 3 (3d Cir. 2007) (quoting Adams v. Comm’r of Internal Revenue, 170 F.3d 173, 175 (3d Cir. 1999)).
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Plaintiffs argue that the operation of Conestoga in accordance with the Hahns’ religious beliefs constitutes the “exercise of religion” under the RFRA, and that the Women’s Preventative Healthcare regulations impose a substantial burden upon their religion because “it directly mandates that they violate th[eir] beliefs.” (Pls.’ Br., p. 9.) Additionally, Plaintiffs argue that Supreme Court precedent dictates that we consider only the amount of pressure applied by the government, and not interpret the confines of religious doctrine. (Id. at pp. 12-14.)
Defendants do not contest that the Hahns’ beliefs are sincerely held or religious in nature. However, Defendants strongly assert that Conestoga cannot exercise religion within the meaning of the RFRA, and that the Women’s Preventative Healthcare regulations do not pose a substantial burden upon the Hahns’ beliefs because: (1) the regulations apply to Conestoga, not the Hahns; and (2) any burden imposed by the regulations is too attenuated to constitute a substantial burden. (Defs.’ Br., pp. 11-22.)
i. Conestoga’s Rights Under the RFRA For the reasons stated supra, we agree with Defendants that Conestoga cannot exercise religion within the meaning of the RFRA. Nonetheless, Plaintiffs persist that Conestoga is a “person” under the RFRA because the general definition of “person” found in 1 U.S.C. § 1 states, “[I]n determining the meaning of any Act of Congress, unless the context indicates otherwise . . . the words ‘person’ and ‘whoever’ includes corporations.” As we have determined that a for-profit, secular corporation cannot exercise religion, this would certainly be a situation where the “context indicates otherwise.” Therefore, Conestoga cannot bring a claim under the RFRA. We must next consider whether the Hahns have demonstrated that the regulations would
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substantially burden their religious exercise.
ii. Substantial Burden
The Supreme Court has not considered the issue of what constitutes a substantial burden in
a case involving the Women’s Preventive Healthcare regulations. See Hobby Lobby Stores, Inc. v.
Sebelius, 133 S. Ct. 641, 643 (2012) (Sotomayor, J.) (noting that the Supreme Court has not
considered the RFRA or free exercise claims brought by a closely-held, for-profit corporation and
shareholders alleging that regulations substantially burdened their exercise of religion). However, in considering a free exercise of religion challenge in a different context,13 the Supreme Court has
observed:
Where the state conditions the receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by a religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists. While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial.
Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 717-18 (1982).
In articulating the guidelines for when religious freedoms may be infringed, the Supreme
Court has also cautioned that: “every person cannot be shielded from all the burdens incident to
exercising every aspect of the right to practice religious beliefs. When followers of a particular sect
enter into commercial activity as a matter of choice, the limits they accept on their own conduct as
a matter of conscience and faith are not to be superimposed on the statutory schemes which are
binding on others in that activity.” United States v. Lee, 455 U.S. 252, 261 (1982).
13 When conducting an analysis under the RFRA, courts generally look to free exercise cases decided prior to Employment Div., Dept. of Human Resources of Or. v. Smith, 494 U.S. 872 (1990), for guidance, since those earlier cases employ the same standard as that codified by Congress in the RFRA. See Adams v. Comm’r of Internal Revenue, 170 F.3d 173, 175-79 (3d Cir. 1999).
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Neither has the Third Circuit applied the “substantial burden” standard to the Women’s Preventive Healthcare regulations. Nevertheless, in examining the RFRA as applied to a different statute, the Third Circuit has stated:
The RFRA does not explain what constitutes a “substantial burden” on the exercise of religion. We have stated, however, that within the related context of the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), a “substantial burden” “exists where: 1) a follower is forced to choose between following the precepts of his religion and forfeiting benefits otherwise generally available to other inmates versus abandoning one of the precepts of his religion in order to receive a benefit; OR [sic] 2) the government puts substantial pressure on an adherent to substantially modify his behavior and to violate his beliefs.”
Norwood v. Strada, 249 Fed. Appx. 269, 271 (3d Cir. 2007) (quoting Washington v. Klem, 497 F.3d 272, 280 (3d Cir. 2007)) (quotation marks omitted).
With this general precedential background from the Supreme Court and the Third Circuit in mind, we note that the flurry of opinions recently issued in similar cases have all directly considered the “substantial burden” test as applied to the Women’s Preventive Healthcare regulations. We concur with the district court in the Western District of Oklahoma, which observed that, “[t]he present circumstances require charting a course through the ‘treacherous terrain’ at the intersection of the federal government’s duty to avoid imposing burdens on the individual’s practice of religion and the protection of competing interests.” Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1293 (W.D. Okla. 2012). That said, we believe that two opinions best explain and contrast the differing views on this issue.
In Tyndale House Publishers, Inc. v. Sebelius, 2012 WL 5817323 (D.D.C. Nov. 16, 2012), the district court granted a preliminary injunction, finding that the contraceptive coverage mandate substantially burdened the plaintiffs’ religious exercise. In so holding, the court focused on the
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financial pressure that the plaintiffs faced if they chose not to comply with the Women’s Preventive Healthcare regulations. Id. at *12. The court concluded that this scenario creates a “Hobson’s choice,” and “amply shows that the contraceptive coverage mandate substantially burdens the plaintiffs’ religious exercise.” Id. In conducting its analysis, the Tyndale court primarily relied on three cases. See Wisconsin v. Yoder, 406 U.S. 205, 218-19 (1972) (mandatory school attendance law substantially burdens Amish faith); Sherbert v. Verner, 374 U.S. 398, 404 (1963) (substantial burden to deny unemployment benefits to a worker fired for not working on her Sabbath); Thomas v. Anchorage Equal Rights Comm’n, 165 F.3d 692, 714 (9th Cir. 1999) rev’d on other grounds en banc, 220 F.3d 1134 (9th Cir. 2000) (law prohibiting discrimination in housing based on marital status substantially burdened landlord’s religion).
Reaching a different result than Tyndale, the district court in Hobby Lobby, ruled that the plaintiffs could not establish that the regulations created a substantial burden. 870 F. Supp. 2d at 1294-96. While recognizing that it is not within a court’s province to question a plaintiff’s religious beliefs, the court emphasized that this precept does not mean that any burden on religion is prohibited. Id. at 1293. Rather, the court stressed that the burden imposed by the law must be substantial in order to violate the RFRA. Id. The Hobby Lobby court ultimately concluded that the burden in question was too attenuated to be substantial. Id. at 1294.
Only a few weeks ago, the United States Court of Appeals for the Tenth Circuit affirmed the district court’s reasoning in Hobby Lobby, agreeing that the plaintiffs could not establish a substantial burden. The Tenth Circuit quoted the following statement by the district court with approval:
[T]he particular burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions
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by health care providers and patients covered by [the corporate] plan, subsidize someone else’s participation in an activity that is condemned by plaintiff[s’] religion. Such an indirect and attenuated relationship appears unlikely to establish the necessary “substantial burden.” Hobby Lobby Stores, Inc. v. Sebelius, No. 12-6294, slip op. at 7 (10th Cir. Dec. 20, 2012) (quoting Hobby Lobby, 870 F. Supp. 2d at 1294) (emphasis in original). The Tenth Circuit went on to stress that “other cases enforcing [the] RFRA have done so to protect a plaintiff’s own participation in (or abstention from) a specific practice required (or condemned) by his religion.” Id. The court concluded that the reach of the RFRA does not “encompass the independent conduct of third parties with whom the plaintiffs have only a commercial relationship.” Id. While we view the “substantial burden” issue to be a closer call than whether Conestoga, acting as a corporation, can exercise religious rights, for the reasons that follow, we agree with the reasoning expressed in the Hobby Lobby opinions, and find that the Hahns have not demonstrated that these regulations constitute a substantial burden upon their religion. First, we reject the notion expressed in Legatus v. Sebelius, 2012 WL 5359630 (E.D. Mich. Oct. 31, 2012), that a plaintiff shows a burden to be substantial simply by claiming that it is. Id. at *6 (citing United States v. Lee, 455 U.S. 252, 257 (1982); May v. Baldwin, 109 F.3d 557, 563 (9th Cir. 1997) (where the court assumed that undoing dreadlocks imposed a substantial burden on plaintiff’s exercise of religion)). While we wholeheartedly agree that “courts are not the arbiters of scriptural interpretation,” Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 718 (1981), the RFRA still requires the court to determine whether the burden a law imposes on a plaintiff’s stated religious belief is “substantial.” Essentially, the Legatus court bypassed a careful examination of whether an objector’s stated burden was in fact substantial, and concluded that the substantial
24

burden test could be met simply because the objector proclaimed such a burden existed. This reasoning presents a very slippery slope upon which we are not prepared to descend.14
If every plaintiff were permitted to unilaterally determine that a law burdened their religious beliefs, and courts were required to assume that such burden was substantial, simply because the plaintiff claimed that it was the case, then the standard expressed by Congress under the RFRA would convert to an “any burden” standard. See Washington v. Klem, 497 F.3d 272, 279-81 (3d Cir. 2007) (arguing that finding a substantial burden whenever a government program has “any incidental effect” on religious beliefs would “read ‘substantial’ out of the statute”). Aside from being contrary to the plain language of the RFRA, this type of blind application would permit any religious objector to refuse to comply with Congressional mandates based solely on stated religious objections, which could include laws dealing with public and workplace safety, and discrimination. See Autocam Corp v. Sebelius, No. 1:12-cv-1096, slip op. at 12-13 (W.D. Mich. Dec. 24, 2012) (opining that, if a court cannot look beyond a plaintiff’s sincerely held assertion of religious based objections to determine whether the regulations impose a substantial burden, every governmental regulation would be susceptible to a “private veto”).
As noted previously, the Supreme Court in Lee recognized that free exercise protections are not absolute, and that, while religious beliefs are to be accommodated, “there is a point at which accommodations would ‘radically restrict the operating latitude of the legislature.’” Lee, 455 U.S. at 260 (quoting Braunfeld v. Brown, 366 U.S. 599, 605 (1961)). The Hahns, in operating Conestoga,
14 The term “slippery slope,” a commonly used legal phrase, means “a course of action that seems to lead inevitably from one action or result to another with unintended consequences.” MERRIAM-WEBSTER ONLINE DICTIONARY, http://www.merriam-webster.com/dictionary/slippery%20slope (last visited Jan. 9, 2013). This definition aptly describes what would occur were we to follow the reasoning in Legatus.
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understood that a commercial enterprise would be subject to numerous laws regulating commerce. We agree with the district court in Hobby Lobby that, for those laws or regulations to violate the RFRA, “there must be more than some burden on religious exercise. The burden must be substantial.” Hobby Lobby, 870 F. Supp. at 1295.
With these principles in mind, we turn to the question of how the Women’s Preventive Healthcare regulations burden the religious belief articulated by the Hahns. At the preliminary injunction hearing, Plaintiffs’ counsel emphasized that the heart of Plaintiffs’ objections are focused on the use of abortifacient contraceptives that can affect a fertilized egg. Counsel stated:
Because many of these drugs not only have some medical effect on the egg, but they also affect the lining of a woman’s uterus and thus interfere with the implantation of the egg, our concern and our clients’ deeply held religious concern, is that any fertilized egg that’s prevented from implanting, that’s aborted the morning after or a week after, any interruption of a woman’s lining of her uterus, any drug that would do that, that would be involved in that, is what they are most sincerely and deeply opposed to. (Hrg. Tr., Jan. 4, 2013, pp. 67-68) (emphasis added). As this statement reflects, the core of the Hahns’ religious objection is the effect of particular contraceptives on a fertilized egg. Given that focus, it is worth emphasizing that the ultimate and deeply private choice to use an abortifacient contraceptive rests not with the Hahns, but with Conestoga’s employees. The fact that Conestoga’s employees are free to look outside of their insurance coverage and pay for and use any contraception, including abortifacients, through the salary they receive from Conestoga, amply illustrates this point. Autocam, No. 1:12-cv-1096, slip op. at 11 (noting that plaintiffs will be “paying indirectly for the same services through wages” that their employees may choose to use “for contraception products and services”). We also find that any burden imposed by the regulations is too attenuated to be considered
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substantial. A series of events must first occur before the actual use of an abortifacient would come
into play. These events include: the payment for insurance to a group health insurance plan that will
cover contraceptive services (and a wide range of other health care services); the abortifacients must
be made available to Conestoga employees through a pharmacy or other healthcare facility; and a
decision must be made by a Conestoga employee and her doctor, who may or may not choose to
avail themselves to these services. The indirect nature of the burden15 imposed by the Women’s Preventive Healthcare
regulations also distinguishes this case from the precedent relied upon by the Tyndale court.16 For
example, in Yoder, the Amish plaintiffs were threatened with prosecution for their refusal to send
their children to school in violation of their religious beliefs. 406 U.S. at 218. In Sherbert, the
government denied the plaintiff’s unemployment benefits because she had been fired for refusing
to work on her Sabbath. 374 U.S. at 403-04. In Thomas, the plaintiffs were forced to comply with
a housing mandate based on marital status. 615 F.3d at 1137-38. And, in Gonzales, a case
mentioned only briefly in Tyndale, but heavily relied upon by Plaintiffs, prosecution was threatened
where members of a church received communion through the drinking of tea that contained a
15 Relying on the Supreme Court’s statement in Thomas v. Review Bd. of Ind. Emp’t Sec. Div., that “[w]hile the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial,” 450 U.S. 707, 718 (1982), Plaintiffs strongly assert that the indirect nature of the burden is not fatal to their claim. However, Plaintiffs’ misunderstand the principle asserted in Thomas. While a compulsion may certainly be indirect and still constitute a substantial burden, such as the denial of a benefit found in Thomas, “[t]o strike down, without the most critical scrutiny, legislation which imposes only an indirect burden on the exercise of religion . . . would radically restrict the operating latitude of the legislature.” Braunfeld v. Brown, 366 U.S. 599, 606 (1961).
16 The Tyndale court also considered it a “crucial distinction” that the plaintiff was selfinsured as this fact removed one of the “degrees” of separation. Tyndale, 2012 WL 5817323, at *13. Here, Conestoga is not self-insured, thus creating further distance between the Women’s Preventive Healthcare regulations and the possible use of abortifacients.
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hallucinogen. 546 U.S. at 423. The common thread in these cases is that the government mandate directly impacted the plaintiff’s participation in or abstention from a specific religious practice. That is not the case here.
While compliance with the Women’s Preventive Healthcare regulations may impose some burden upon the Hahns, any such burden on their ability to freely exercise their religion would be indirect, unlike the statutes challenged in Yoder, Sherbert, Thomas and Gonzales. Importantly, Plaintiffs remain free to make their own independent decisions about their use or non-use of different forms of contraception, as that clearly remains a personal matter. See O’Brien v. U.S. Dept. of Health & Human Svcs., 2012 WL 4481208, at *6 (Women’s Preventive Healthcare regulations do not require “that plaintiffs alter their behavior in a manner that will directly and inevitably prevent [them] from acting in accordance with their religious beliefs”).
Conestoga’s corporate form further separates the Hahns from the requirements of the ACA, as the Women’s Preventive Healthcare regulations apply only to Conestoga, a secular corporation without free exercise rights, not the Hahns. Whatever burden the Hahns may feel from being involved with a for-profit corporation that provides health insurance that could possibly be used to pay for contraceptives, that burden is simply too indirect to be considered substantial under the RFRA.
Finally, we understand, and have carefully considered the fact that the Hahns may be less focused on what Conestoga’s employees ultimately decide regarding the use of abortifacients, and more concerned with the burden imposed on their religion by the requirement that they provide insurance coverage that may be used to “pay for, facilitate, or otherwise support abortifacient drugs.” (Am. Compl. ¶ 32.) We respect and fully appreciate this concern, and in no way dispute or denigrate
28

its legitimacy and its effect as a burden upon the Hahns’ religious beliefs. However, a line must be drawn delineating when the burden on a plaintiff’s religious exercise becomes “substantial.” We conclude that, here, that line does not extend to the speculative “conduct of third parties with whom plaintiffs have only a commercial relationship.” Hobby Lobby, No. 12-6294, slip op. at 7 (10th Cir. Dec. 20, 2012).
3. The Establishment Clause The “central purpose of the Establishment Clause [is] the purpose of ensuring governmental neutrality in matters of religion.” Gillette v. United States, 401 U.S. 437, 449 (1971). Statutes violate this central purpose if they either “prefer one religion over another,” Larson v. Valente, 456 U.S. 228, 246 (1982) (quoting Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947)), or create an “excessive government entanglement with religion,” Lemon v. Kurtzman, 403 U.S. 602, 613 (1971) (quoting Walz v. Tax Comm’n, 397 U.S. 664, 674 (1970)). Plaintiffs argue that the “religious employer” exemption does both. They argue that it discriminates among religions because some organizations qualify for the exemption, while others do not. Further, they claim that the decision about whether an organization qualifies for the exemption involves excessive entanglement with religion because it requires the government to “explore a religious organization’s purpose in impermissible ways.” (Pls.’ Br., p. 32.) Defendants, on the other hand, argue that the Establishment Clause does not prohibit provisions, such as the religious employer exemption, which accommodate religious organizations by excusing their compliance with certain regulations. They assert that the Establishment Clause only prohibits provisions that discriminate based upon religious denomination, not those that merely distinguish between secular and religious organizations. Further, Defendants argue that the
29

exemption does not create excessive government entanglement with religion because the regulation does not call for an analysis of an organization’s religious tenets. They assert that the intrusiveness of the statute is particularly minimal in Plaintiffs’ case because Plaintiffs do not meet any of the criteria for the religious exemption.
We agree with Defendants, and with the other courts that have considered the issue, that the religious employer exemption does not violate the Establishment Clause. See Grote Indus., LLC v. Sebelius, 2012 WL 6725905, at *8-9 (S.D. Ind. Dec. 27, 2012); O’Brien, 2012 WL 4481208, at *911. Although the exemption distinguishes between religious and secular organizations, it applies equally to organizations of every faith, and does not favor any denomination over another. A statute does not violate the Establishment Clause merely because it distinguishes between secular and religious organizations. Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 338 (1998) (“Where, as here, government acts with the proper purpose of lifting a regulation that burdens the exercise of religion, we see no reason to require that the exemption comes packaged with benefits to secular entities.”). Indeed, the Supreme Court has repeatedly held that laws, such as the ACA’s religious employer exemption, which accommodate religion, have a secular purpose and apply equally to all faiths, do not run afoul of the Establishment Clause. See id. (exemption for religious organizations from Title VII’s prohibition on religious discrimination in employment); see also Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 132 S.Ct. 694 (2012) (ministerial exception to Title VII’s employment discrimination proscriptions); Cutter v. Wilkinson, 544 U.S. 709 (2005) (statute authorizing accommodations for religious practices of institutionalized persons); Walz v. Tax Comm’n, 397 U.S. 664, 666 (1970) (property tax exemption “to religious organizations for religious properties used solely for religious
30

worship”). Neither does the religious employer exemption create excessive government entanglement
with religion. “The test [for excessive government entanglement] is inescapably one of degree.” Walz, at 674. Some degree of involvement between government and religion is permissible, and perhaps inevitable. Id. The court must consider “whether the involvement is excessive, and whether it is a continuing one calling for official and continuing surveillance leading to an impermissible degree of entanglement.” Id. at 675.
The “entanglement” created by the religious employer exemption is minimal. The regulation requires a one-time assessment based upon minimally invasive criteria. Specifically, an organization qualifies for an exemption if its purpose is the inculcation of religious values, it primarily employs and serves persons who share the organization’s religious beliefs and it qualifies as a non-profit organization under the Internal Revenue Code. 45 C.F.R. § 147.130(a)(1)(iv)(B). This inquiry is far less invasive than other statutes the Supreme Court has previously upheld. See, e.g., Bowen v. Kendrick, 487 U.S. 589 (1988) (regular monitoring of religious organizations’ use of federal funds did not create excessive entanglement); Agostini v. Felton, 521 U.S. 203 (1997) (unannounced monthly visits to monitor content taught by public employees in religious schools did not constitute excessive entanglement). As applied specifically to Plaintiffs, the exemption is particularly noninvasive since Conestoga does not even qualify as a non-profit organization. As such, the government need not examine Plaintiffs’ religion at all to determine that they do not qualify for the exemption.
The Supreme Court has consistently recognized that “[t]here is ample room under the Establishment Clause for ‘benevolent neutrality which will permit religious exercise to exist without
31

sponsorship and without interference.’” Amos, 483 U.S. at 334 (quoting Walz, 397 U.S. at 669). Where, as here, a statute provides for general religious accommodations while avoiding discrimination among denominations and excessive government entanglement with religion, it is not prohibited by the Establishment Clause.
4. The Free Speech Clause It is well established that the First Amendment, in addition to protecting the freedom to speak, prohibits compelled speech. W. Va. State Bd. of Educ. v. Barnette, 319 US. 624, 642 (1943) (law requiring recitation of the pledge of allegiance is unconstitutional). The right to be free from compelled speech also encompasses the right to refuse to fund speech with which one disagrees. United States v. United Foods, Inc., 533 U.S. 405, 410 (2001). Plaintiffs argue that requiring them to purchase insurance that covers “patient education and counseling for all women with reproductive capacity,” which may include advice about abortifacients, improperly compels them to support speech with which they disagree. See HRSA Guidelines, supra. Defendants offer two responses: (1) the regulation concerns the provision of a health care plan, which is conduct rather than speech; and (2) the regulation is viewpoint neutral because it is silent as to the content of the education and counseling, leaving that decision instead to the patient and her doctor. Defendants emphasize that Plaintiffs remain free to discourage employees from using contraceptives which they believe to be immoral. We agree with Defendants that Plaintiffs’ Free Speech claim has little likelihood of success.17
17 We also note that, as with Plaintiffs’ Establishment Clause claim, every other court to consider the issue has found that it is unlikely that the regulations violate the right to free speech. See Grote Indus., LLC v. Sebelius, 2012 WL 6725905, at *9-10 (S.D. Ind. Dec. 27, 2012); Autocam Corp. v. Sebelius, No. 12-cv-1096, slip op. at 14-15 (W.D. Mich. Dec. 24, 2012); O’Brien, 2012 WL
(continued...) 32

As the district court observed in Autocam, this claim is materially identical to the one rejected by the Supreme Court in Rumsfeld v. Forum for Academic and Institutional Rights, 547 U.S. 47 (2006). In that case, the Court upheld a statute that conditioned federal funding to law schools upon their agreement to permit military recruiters on campus. The Court reasoned that the statute concerned conduct that was “not inherently expressive . . . because the accommodation [of recruiters on campus] does not sufficiently interfere with any message of the school.” Id. at 64. Importantly, the statute neither compelled the law schools to convey their support for the recruiters, nor prohibited them from expressing their disagreement. Id. at 64-65.
A similar analysis applies to the regulation challenged by Plaintiffs. The provision “affects what [Plaintiffs] must do . . . not what they may or may not say.” Id. at 60 (emphasis in original). The conduct it requires of Plaintiffs—the purchase of certain health care coverage—is not inherently expressive. Purchasing a healthcare plan does not normally convey agreement with every medical procedure covered by the plan, or every health care decision made by a patient and her doctor. See Texas v. Johnson, 491 U.S. 397, 404 (1989) (conduct is inherently expressive when “[a]n intent to convey a particularized message was present, and . . . the likelihood was great that the message would be understood by those who viewed it.” (quoting Spence v. State of Wash., 418 U.S. 405, 410-11 (1974))). Further, the regulations do not interfere with Plaintiffs’ expression of their opinions regarding contraceptives. Like the law schools in Rumsfeld, Plaintiffs “remain free under the statute to express whatever views they may have on the [use of contraceptives].” Rumsfeld, 547 U.S. at 60.
17(...continued) 4481208, at *11-13.
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The regulation challenged by Plaintiffs is further distinguishable from those invalidated in the Supreme Court’s compelled-speech cases because it does not advocate any particular viewpoint. See, e.g., Barnette, 319 U.S. at 642; United Foods, 533 U.S. at 411 (the government may not “compel a particular citizen, or a discrete group of citizens, to pay special subsidies for speech on the side that it favors . . .”) (emphasis added). While the regulations mandate that employers provide coverage for “education and counseling” for women of reproductive capacity, which may include information about the contraceptives which Plaintiffs believe to be immoral, the regulations are silent as to the content of the counseling given to a patient by her doctor. See HRSA Guidelines, supra. The script that conversation follows is instead determined by the particular doctor and patient. See O’Brien, 2012 WL 4481208, at *12. As such, it cannot be said that Plaintiffs are being required to fund the advocacy of a viewpoint with which they disagree. Plaintiffs’ concern that a doctor may, in some instances, provide advice to a patient that differs from the Hahns’ religious beliefs is not one protected by the First Amendment. IV. CONCLUSION
Plaintiffs have been unable to demonstrate a likelihood of success on the merits of their First Amendment and RFRA claims. As such, we need not decide whether Plaintiffs have demonstrated a right to relief under the other three preliminary injunction factors. Because Plaintiffs have not met their burden, Plaintiffs’ motion will be denied.
An appropriate Order follows.
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 Case 5:12-cv-06744-MSG Document 38 Filed 01/02/13 Page 1 of 16

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

:

CONESTOGA WOOD SPECIALISTS CORP., :

et al.,

:

: No. 5:12-cv-06744-MSG

Plaintiffs,

:

v.

:

:

KATHLEEN SEBELIUS, et al.,

: ELECTRONICALLY FILED

:

Defendants.

:

:

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

Case 5:12-cv-06744-MSG Document 38 Filed 01/02/13 Page 2 of 16 TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii INTRODUCTION ...........................................................................................................................1 FACTUAL BACKGROUND ..........................................................................................................2 ARGUMENT ...................................................................................................................................5
I. The Contraception Rule Furthers The Compelling Government Interest In Eradicating Discrimination...........................................................................................5
II. The Contraception Rule Does Not Impose A Substantial Burden On The Plaintiffs’ Religious Beliefs ..........................................................................................................9
CONCLUSION ..............................................................................................................................11
i

Case 5:12-cv-06744-MSG Document 38 Filed 01/02/13 Page 3 of 16

Cases

TABLE OF AUTHORITIES

Catholic Charities of Diocese of Albany v. Serio, 859 N.E.2d 459 (N.Y. 2006) ........................... 8 Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67 (Cal. 2004) ....................... 8 Dole v. Shenandoah Baptist Church, 899 F.2d 1389 (4th Cir. 1990)..................................... 5, 6, 9 EEOC v. Fremont Christian School, 781 F.2d 1362 (9th Cir. 1986) ............................................. 9 EEOC v. Kamehameha Schools/Bishop Estate, 990 F.2d 458 (9th Cir. 1993)............................... 5 Erzinger v. Regents of University of California, 137 Cal. App. 3d 389 (Cal. Ct. App. 1982) ..... 11 Goehring v. Brophy, 94 F.3d 1294 (9th Cir. 1996), abrogated on other grounds by City of
Boerne v. Flores, 521 U.S. 507 (1997) ..................................................................................... 10 Hobby Lobby Stores v. Sebelius, 870 F. Supp. 2d 1278 (W.D. Okla. 2012) ................................ 10 Korte v. Sebelius, No. 3:12-CV-1072, 2012 WL 6553996 (S.D. Ill. Dec. 14, 2012) ................... 10 Newman v. Piggie Park Enter., Inc., 256 F. Supp. 941 (D.S.C. 1966), aff’d in relevant part and
rev’d in part on other grounds, 377 F.2d 433 (4th Cir. 1967), aff’d and modified on other grounds, 390 U.S. 400 (1968) ............................................................................................... 6, 12 O’Brien v. U.S. Department of Health & Human Services, 2012 WL 4481208 (E.D. Mo. Sept. 28, 2012), stay granted, No. 12-CV-3357 (8th Cir. Nov. 28, 2012)...................................... 9-10 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) ..................... 8 Tarsney v. O’Keefe, 225 F.3d 929 (8th Cir. 2000) ....................................................................... 11 Zelman v. Simmons-Harris, 536 U.S. 639 (2002)......................................................................... 10
Federal Statutes 42 U.S.C. § 2000e ........................................................................................................................... 9 42 U.S.C. § 2000e-1........................................................................................................................ 9 Patient Protection and Affordable Care Act, Pub. L. No. 111-148, sec. 1001, § 2713(a), 124 Stat.
119, 131 (2010) (to be codified at 42 U.S.C. § 300gg-13(a)) ..................................................... 2

ii

Case 5:12-cv-06744-MSG Document 38 Filed 01/02/13 Page 4 of 16
Regulations 45 C.F.R. § 147.130(a)(1)(iv) (2011) ............................................................................................. 3 77 Fed. Reg. 16,501 (Mar. 21, 2012).............................................................................................. 4 77 Fed. Reg. 8725 (Feb. 15, 2012) ............................................................................................. 4, 8
Other Authorities 155 Cong. Rec. S11979 (daily ed. Nov. 30, 2009) ..................................................................... 2, 3 155 Cong. Rec. S12020 (daily ed. Dec. 1, 2009)........................................................................ 2, 3 Cornelia T.L. Pillard, Our Other Reproductive Choices: Equality in Sex Education,
Contraceptive Access, and Work-Family Policy, 56 Emory L.J. 941 (2007) ............................. 7 Health Res. & Servs. Admin., U.S. Dep’t of Health & Human Servs., Women’s Preventive
Services: Required Health Plan Coverage Guidelines, http://www.hrsa.gov/womensguidelines/ .................................................................................... 3 INSTITUTE OF MEDICINE, CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS (2011) ...................................................................................................................................... 3, 4 Su-Ying Liang et al., Women’s Out-of-Pocket Expenditures and Dispensing Patterns for Oral Contraceptive Pills Between 1996 and 2006, 83 Contraception 528 (2011) .............................. 4
iii

Case 5:12-cv-06744-MSG Document 38 Filed 01/02/13 Page 5 of 16
INTRODUCTION The American Civil Liberties Union and the American Civil Liberties Union of Pennsylvania (collectively “ACLU”) submit this amicus brief in opposition to Plaintiffs’ motion for a preliminary injunction, specifically on the issue of whether Plaintiffs are likely to succeed on the merits of their claims. The right to practice one’s religion, or no religion, is a core component of our civil liberties and is of vital importance to the ACLU. For this reason, amici routinely bring cases designed to protect the right to worship and express religious beliefs. The ACLU is also fiercely committed to fighting discrimination and inequality, including discrimination based on gender. Indeed, for more than four decades, the ACLU has worked to secure gender equality and ensure that women and girls are able to lead lives of dignity, free from violence and discrimination. An important component of gender equality is the ability of women to have full control of their reproductive lives and to be able to decide whether and when to have children. Amici do not repeat the arguments presented by Defendants. Rather, amici submit this brief to provide historical context to support Defendants’ argument that Plaintiffs are unlikely to succeed on the merits of their claim that the federal contraception rule infringes on Plaintiffs’ religious liberty. The claims raised by Plaintiffs – that they have a right to discriminate against women and deny them benefits because of the company’s owners’ religious beliefs – are, unfortunately, not new. Regrettably, not so long ago, a secular school instituted a “Protestantonly” hiring policy based on the school’s founder’s religious preferences; employers claimed their right to religious freedom entitled them to pay men – who they considered to be the head of household based on their religious beliefs – more than women; businesses claimed that their right to religious liberty entitled them to discriminate against African-American customers in public
1

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accommodations; and universities claimed a religious liberty right to discriminate against African-American students. Fortunately, in each of these cases, courts squarely rejected the claims, recognizing that the right to religious liberty does not encompass the right to discriminate against others. This Court should come to the same conclusion here. Indeed, acceptance of Plaintiffs’ claims would not only contravene this clear and consistent precedent, but would also open the door for arguments that countless anti-discrimination and other important laws should be unenforceable in the face of a claim that the discrimination is mandated by a religious belief.
FACTUAL BACKGROUND The Patient Protection and Affordable Care Act (“ACA”) provides that certain preventive services must be offered in health insurance plans without cost-sharing. Pub. L. No. 111-148, sec. 1001, § 2713(a), 124 Stat. 119, 131 (2010) (to be codified at 42 U.S.C. § 300gg-13(a)). In an effort to help eliminate some forms of gender inequality by equalizing men and women’s health care coverage, Congress added the Women’s Health Amendment (“WHA”) to the ACA, which requires health insurance plans to cover additional preventive services for women. Id. sec. 1001, § 2713(a)(4), 124 Stat. at 131 (to be codified at 42 U.S.C. § 300gg-13(a)(4)). The WHA was crucial to ensuring that women receive coverage for preventive services. Indeed, prior to its introduction, coverage for these services was absent from the ACA. See 155 Cong. Rec. S11987 (daily ed. Nov. 30, 2009) (statement of Sen. Mikulski) (noting that the ACA did not cover key preventive services for women). In passing the WHA, Senator Reid explained that the WHA was necessary for “millions of women who are being discriminated against . . . .” 155 Cong. Rec. at S12020 (daily ed. Dec. 1, 2009) (statement of Sen. Reid). As Senator Mikulski noted: “Often those things unique to women have not been included in health care reform. Today we guarantee it and we assure it and we make it affordable by dealing with copayments and
2

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deductibles . . . .” 155 Cong. Rec. at S11988 (daily ed. Nov. 30, 2009) (statement of Sen. Mikulski) (emphasis added). In particular, Congress intended to address gender disparities in out-of-pocket health care costs, much of which stem from reproductive health care:
Not only do [women] pay more for the coverage we seek for the same age and the same coverage as men do, but in general women of childbearing age spend 68 percent more in out-of-pocket health care costs than men. . . .
. . . . This fundamental inequity in the current system is dangerous and discriminatory and we must act. The prevention section of the bill before us must be amended so coverage of preventive services takes into account the unique health care needs of women throughout their lifespan. 155 Cong. Rec. at S12027 (daily ed. Dec. 1, 2009) (statement of Sen. Gillibrand). To implement the WHA, the Institute of Medicine (“IOM”), an independent, nonprofit organization that works outside of government to provide unbiased and authoritative advice to decision makers and the public, “review[ed] what preventive services are necessary for women’s health and well-being” and developed recommendations for comprehensive guidelines. INST. OF MEDICINE, CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS 2, 21 (2011) (“CLOSING THE GAPS”). Among other things, the report recommended that the preventive services include “the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” Id. at 10, 165 tbl.7-1. On August 1, 2011, the Department of Health and Human Services (“HHS”) adopted these recommendations, including the recommendation on contraceptive services. See 45 C.F.R. § 147.130(a)(1)(iv) (2011); Health Res. & Servs. Admin., U.S. Dep’t of Health & Human Servs., Women’s Preventive Services: Required Health Plan Coverage Guidelines, http://www.hrsa.gov/womensguidelines/.1
1 The contraception rule exempts houses of worship, 45 C.F.R. §§ 147.130(a)(1)(iv)(A)–(B), and the federal government is in process of modifying the rule as applied to religiously affiliated
3

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In announcing the final rule, the government recognized that the ability to access contraception is essential to women’s ability to participate fully in society. Indeed, as the government explained, the inability of women to access contraception
places women in the workforce at a disadvantage compared to their male co-workers. Researchers have shown that access to contraception improves the social and economic status of women. Contraceptive coverage, by reducing the number of unintended and potentially unhealthy pregnancies, furthers the goal of eliminating this disparity by allowing women to achieve equal status as healthy and productive members of the job force. . . . The [federal government] aim[s] to reduce these disparities by providing women broad access to preventive services, including contraceptive services. 77 Fed. Reg. 8725, 8728 (Feb. 15, 2012) (footnote omitted). In addition, the government recognized that cost is a real barrier to contraceptive access. The IOM found that “[d]espite increases in private health insurance coverage of contraception since the 1990s, many women do not have insurance coverage or are in health plans in which copayments for visits and for prescriptions have increased in recent years.” CLOSING THE GAPS at 109. Contraceptive copays can be so expensive that women can pay almost as much out-ofpocket as they would without coverage at all. Su-Ying Liang et al., Women’s Out-of-Pocket Expenditures and Dispensing Patterns for Oral Contraceptive Pills Between 1996 and 2006, 83 Contraception 528, 531 (2011). Cost barriers are aggravated by the fact that women “typically earn less than men and . . . disproportionately have low incomes.” CLOSING THE GAPS at 19. Women who lack access to contraception face “barriers . . . that prevent women from achieving health and well-being for themselves and their families.” Id. at 20. The federal contraception rule, if undisturbed, will ensure that millions of women have access to contraception without cost barriers, thereby equalizing the health insurance costs between women and men and ensuring women’s ability to equally participate in society.
non-profit employers. The modification will ensure employees will receive contraception coverage but that the employer will not bear the cost. 77 Fed. Reg. 16,501 (Mar. 21, 2012).
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ARGUMENT I. THE CONTRACEPTION RULE FURTHERS THE COMPELLING
GOVERNMENT INTEREST IN ERADICATING DISCRIMINATION One of the main questions in this case is whether secular, for-profit corporations can discriminate against their female employees by denying them the benefits the government has found to be a critical means of helping promote women’s equality and eradicating discrimination. While today’s controversy centers around health insurance benefits for contraception, the fundamental question – whether religious objections can trump neutral laws designed to eradicate discrimination – is not unique to this context. Indeed, it has arisen in numerous other contexts over the last five decades. For example: ● Almost twenty years ago, in 1993, a secular, private school maintained a “Protestant-only” hiring policy based on the school’s founder’s religious beliefs. Under this policy, the school refused to hire a substitute French language teacher because she was not Protestant. EEOC v. Kamehameha Sch./Bishop Estate, 990 F.2d 458 (9th Cir. 1993). ● In 1976, Roanoke Valley Christian Schools added a “head of household” supplement to their teachers’ salaries – but only for heads of household as determined by Scripture. For Roanoke Valley, that meant married men. According to the church pastor affiliated with the school, “[w]hen we turned to the Scriptures to determine head of household, by scriptural basis, we found that the Bible clearly teaches that the husband is the head of the house, head of the wife, head of the family.” Dole v. Shenandoah Baptist Church, 899 F.2d 1389, 1392 (4th Cir. 1990). When sued under the Equal Pay Act, Roanoke Valley claimed a right to an exemption from equal pay laws because its “head-of-household practice was based on a sincerely-held belief derived from the Bible.” Id. at 1397.
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● In 1966, three African-American residents of South Carolina brought a suit against Piggie Park restaurants, and their owner, Maurice Bessinger, for refusal to serve them. Bessinger argued that enforcement of the Civil Rights Act of 1964’s public accommodations provision violated his religious freedom “since his religious beliefs compel[led] him to oppose any integration of the races whatever.” Newman v. Piggie Park Enters., Inc., 256 F. Supp. 941, 944 (D.S.C. 1966), aff’d in relevant part and rev’d in part on other grounds, 377 F.2d 433 (4th Cir. 1967), aff’d and modified on other grounds, 390 U.S. 400 (1968).
In each of these cases, entities and individuals tried to invoke the mantle of religious freedom to avoid compliance with laws designed to advance equality, and each time their claims were rejected. As these cases recognized, the right to religious liberty is not absolute. It does not give businesses or individuals carte blanche to discriminate against others, deny others their rights, ignore important laws, or foist their religious beliefs on their employees. As the District Court in South Carolina explained in rejecting the free exercise claim of a restaurant owner who refused to serve African-American customers:
Undoubtedly defendant . . . has a constitutional right to espouse the religious beliefs of his own choosing, however, he does not have the absolute right to exercise and practice such beliefs in utter disregard of the clear constitutional rights of other citizens. This court refuses to lend credence or support to his position that he has a constitutional right to refuse to serve members of the Negro race in his business establishments upon the ground that to do so would violate his sacred religious beliefs. Newman, 256 F. Supp. at 945. As these cases make clear, religious liberty cannot automatically trump laws that were passed to further a compelling government interest. This includes laws designed to promote equality and eradicate discrimination. See, e.g., Shenandoah Baptist Church, 899 F.2d at 1398 (religious school must comply with the Equal Pay Act, which was passed to address “serious and endemic problem of employment [gender] discrimination,” which is a compelling government
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interest). The same is true here. As discussed above, and as the government points out in its brief, in passing the WHA, Congress sought to eradicate gender discrimination in the context of the provision of health care. See Defs.’ Mem. in Opp. to Pls.’ Mot. for Prelim. Inj. (“Defs.’ Br.”) at 23. In passing the ACA, Congress recognized that women of childbearing age pay substantially more for out-of-pocket health care than men, in part because of the costs of contraception. See supra at 2-4. These costs are significant and are a true barrier to women’s access to effective birth control; and these financial barriers are aggravated by the fact that women typically earn less than men. Id. at 4. As Congress found, ensuring women receive the same benefits as men from their employers, and equalizing the existing health care disparities between men and women, is crucial. Id. at 2-3.
This is particularly true where, as here, the benefit at issue is part and parcel of women’s equality in other aspects of their life. The impact of the inability to access contraception falls primarily on women. Access to contraception gives women control of their fertility, enabling them to decide whether and when to become a parent, and allowing women to make educational and employment choices that benefit them and their families. Women’s ability to pursue professional careers because of the ability to control whether and when to have children serves to close the wage gap between men and women. Succinctly put, “[w]omen cannot participate in society, learn, earn, govern, and thrive equally without the ability to determine whether and when to become mothers.” Cornelia T.L. Pillard, Our Other Reproductive Choices: Equality in Sex Education, Contraceptive Access, and Work-Family Policy, 56 Emory L.J. 941, 976 (2007); see also id. at 975 (recognizing the importance of accessing contraception on the ability to participate in the work force, and that without “the means to control and limit reproduction, the average woman would bear twelve to fifteen children in her lifetime”). The Supreme Court has
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also recognized the direct relationship between women’s reproductive health decisions and their equal participation in society: “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” 2 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 856 (1992).
The federal government is not the only one to recognize and act on these gender disparities and the importance to women’s equality of affordable access to contraception through employee health benefit plans. Indeed, 28 states, including Illinois, have passed laws requiring contraception coverage. 77 Fed. Reg. at 8728. Two of those states, California and New York, faced legal challenges similar to the one at issue here. The high courts of both states rejected those challenges in part because the laws were designed to eradicate gender discrimination. See Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67, 92 (Cal. 2004) (recognizing that the statute was passed to equalize health insurance costs between men and women), cert. denied, 543 U.S. 816 (2004); Catholic Charities of Diocese of Albany v. Serio, 859 N.E.2d 459, 461-62, 468 (N.Y. 2006) (noting that the purpose of the statute was to advance equal treatment of women). Those courts acknowledged legislative history similar to that here: women pay much more than men in out-of-pocket health care costs, due in part to the cost of prescription contraception. See Catholic Charities of Sacramento, Inc., 85 P.3d at 92; Catholic Charities of Diocese of Albany, 859 N.E.2d at 468. Eradicating gender discrimination and disparities in health care costs is undoubtedly a compelling government interest, as recognized
2 The fact that Plaintiffs object to covering some, but not all, methods of contraception does not change the analysis. For example, Plaintiffs object to including emergency contraception (“EC”) in its employees’ health insurance plans. EC is the primary method used by a woman to prevent pregnancy after intercourse (for example, in cases of rape or contraceptive failure). See generally http://ec.princeton.edu/. Removing EC from health plans may hamper a woman’s ability to make decisions about her reproductive life, including the ability to select a highly effective contraception method to avoid unintended pregnancy.
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by the line of cases discussed above.3 See also EEOC v. Fremont Christian Sch., 781 F.2d 1362
(9th Cir. 1986) (holding that insurance plan offered only to “head of households,” namely men or
single persons, violated Title VII and the Equal Pay Act, and rejecting the school’s free exercise
claim because of the compelling government interest in eradicating gender discrimination). The
federal contraception rule clearly furthers the compelling government interest of eliminating gender discrimination in the workplace and ensuring gender equality.4
II. THE CONTRACEPTION RULE DOES NOT IMPOSE A SUBSTANTIAL BURDEN ON THE PLAINTIFFS’ RELIGIOUS BELIEFS
Not only do neutral anti-discrimination laws further a compelling government interest,
but as courts have held, they also minimally – if at all – burden religion. For example, in
Shenandoah, the court recognized that it would be – at most – a “limited” burden to require the
school to comply with the Fair Labor Standards Act (“FLSA”) and pay its female teachers the
same as men. As the court recognized, “[t]he fact that [the school] must incur increased payroll
expenses to conform to FLSA requirements is not the sort of burden that is determinative in a
free exercise claim.” 899 F.2d at 1398. So too here. Requiring Plaintiffs to provide their
employees with a health plan that includes contraception coverage does not burden Plaintiffs’
religious exercise. As the district court recently held in O’Brien v. U.S. Department of Health &
3 As the government discusses, the rule also furthers the compelling interest in ensuring that women have appropriate health care. Defs.’ Br. at 22-23. 4 The regulation compares to Title VII of the Civil Rights Act of 1964, which exempts certain religious entities from the prohibition on discriminating based on an employee’s religion. See 42 U.S.C. § 2000e-1(a). No court has ever intimated that Title VII’s exemptions render the statute unconstitutional as applied to private business owners that seek to use their religious beliefs to discriminate. Nor have the courts held that Title VII’s application only to employers with 15 or more employees renders the statute unconstitutional as applied to private business owners that seek to use their religious beliefs to discriminate. See 42 U.S.C. § 2000e(b). The similar logistical exemption to the contraception rule also does not undermine its constitutionality. See Defs.’ Br. at 26-29.
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Human Services, the link between the contraceptive coverage requirement and the religiously prohibited behavior is simply too attenuated to amount to a substantial burden. No. 12-CV-476, 2012 WL 4481208, at *6-7 (E.D. Mo. Sept. 28, 2012), stay granted, No. 12-CV-3357 (8th Cir. Nov. 28, 2012); see also Hobby Lobby Stores v. Sebelius, 870 F. Supp. 2d 1278, 1294 (W.D. Okla. 2012) (denying motion for preliminary injunction in challenge to contraception rule because the plaintiffs were unlikely to succeed in showing that the rule imposed a substantial burden on their religion because of the “indirect and attenuated relationship” between the plaintiffs’ religious beliefs and the rule’s requirements); Korte v. Sebelius, No. 3:12-CV-1072, 2012 WL 6553996, at *10 (S.D. Ill. Dec. 14, 2012) (same); Defs.’ Br. at 20-22. The O’Brien court recognized that the contraceptive rule, which neither requires employers to physically provide contraception to their employees, nor endorse the use of contraception, does not substantially burden religious beliefs solely by requiring an expenditure of money “that might eventually be used by a third party in a manner inconsistent with [an employer’s] religious values.” O’Brien at *7; cf. Zelman v. Simmons-Harris, 536 U.S. 639, 652 (2002) (holding that school voucher program did not violate the Establishment Clause because parents’ “genuine and independent private choice” to use the voucher to send their children to religious schools broke “the circuit between government and religion”).
The O’Brien, Hobby Lobby, and Korte decisions are fully consistent with another line of cases that makes clear that Plaintiffs’ claimed injury – an objection to contributing to a health plan that provides coverage for health care services the Plaintiffs find objectionable – is not cognizable. In Goehring v. Brophy, for example, the court addressed and rejected a RFRA claim similar to Plaintiffs’ claim here. 94 F.3d 1294 (9th Cir. 1996), abrogated on other grounds by City of Boerne v. Flores, 521 U.S. 507 (1997). In that case, public university students objected to
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a university’s requirement that they pay a registration fee on the ground that it was used to subsidize the school’s health insurance program, which covered abortion care. Id. at 1297. The court rejected the plaintiffs’ RFRA and free exercise claims, reasoning that the payments did not impose a substantial burden on the plaintiffs’ religious beliefs. Id. at 1300. Moreover, in Tarsney v. O’Keefe, the Eighth Circuit affirmed the dismissal of a free exercise challenge by taxpayers who objected on religious grounds to the state’s use of their tax dollars to pay for Medicaid recipients’ medically necessary abortions. 225 F.3d 929, 932 (8th Cir. 2000). The payment of taxes that may ultimately subsidize other individuals’ Medicaid abortion coverage, the court explained, was too remote an injury even to accord standing upon the plaintiffs to assert a free exercise claim. Id. at 938; accord Erzinger v. Regents of Univ. of Cal., 137 Cal. App. 3d 389, 393 (Cal. Ct. App. 1982) (“[T]he fact [that] plaintiffs may object on religious grounds to some of the services the University provides is not a basis upon which plaintiffs can claim a constitutional right not to pay a part of the fees.”). Accordingly, just like those who have objected to paying insurance premiums for an insurance plan that others may use to access abortion care, or taxes that pay for Medicaid, which may be used to cover another’s abortion, Plaintiffs here cannot claim any cognizable injury by providing their employees with a health plan that covers contraception, which some employees may use.
CONCLUSION History has a way of repeating itself. Plaintiffs are attempting to resurrect the longdiscredited notion that religion can be used to trump anti-discrimination or other important laws. Plaintiffs’ argument is based on the incorrect notion that religion can be used as a license to discriminate. This Court should follow the wise words from the district court in South Carolina five decades ago, and refuse to “lend credence or support” to the position that private entities
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have a constitutional right to refuse to comply with laws designed to eradicate discrimination.
Newman, 256 F. Supp. at 945.
For the foregoing reasons, Plaintiffs’ Motion for a Preliminary Injunction should be
denied.
Respectfully submitted,
s/Mary Catherine Roper Mary Catherine Roper PA ID No: 71107 AMERICAN CIVIL LIBERTIES FOUNDATION
OF PENNSYLVANIA P.O. Box 40008 Philadelphia, PA 19106 (215) 592 1513 ext. 116 (tel) (215) 592-1343 (fax) mroper@aclupa.org
Witold J. Walczak PA ID No.: 62976 AMERICAN CIVIL LIBERTIES FOUNDATION
OF PENNSYLVANIA 313 Atwood Street Pittsburgh, PA 15213 (412) 681-7864 (tel) (412) 681-8707 (fax) vwalczak@aclupa.org
Brigitte Amiri *Pro hac vice motion pending AMERICAN CIVIL LIBERTIES UNION 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2633 bamiri@aclu.org
Dated: December 20, 2012.
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 Case 5:12-cv-06744-MSG Document 48 Filed 01/11/13 Page 1 of 33
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Civil Action No. 5:12-CV-06744-MSG
CONESTOGA WOOD SPECIALITIES CORPORATION, a PA Corporation; NORMAN HAHN; ELIZABETH HAHN; NORMAN LEMAR HAHN; ANTHONYH. HAHN; and KEVIN HAHN
Plaintiffs, v. KATHLEEN SEBELIUS, in her official capacity as Secretary ofthe United States Department of Health and Human Services; HILDA SOLIS, in her official capacity as Secretary ofthe United States Department of Labor; TIMOTHY GEITHNER, in his official capacity as Secretary ofthe United States Department of the Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; and UNITED STATES DEPARTMENT OF THE TREASURY;
Defendants.
FIRST AMENDED VERIFIED COMPLAINT
Plaintiffs, Conestoga Wood Specialties Corporation, a Pennsylvania corporation, Norman Hahn, Elizabeth Hahn, Norman Lemar Hahn, Anthony H. Hahn and Kevin Hahn (herein "Conestoga" or collectively, with the Hahns, the "Plaintiffs") by and through their attorneys, Charles W. Proctor, III, and Randall L. Wenger, state as follows:
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NATURE OF THE CASE 1. In this action, the Plaintiffs seek declaratory and injunctive relief for the Defendants' violations of the Religious Freedom Restoration Act 42 U.S.C. § 2000bb et seq. (RFRA), the First and Fifth Amendments to the United States Constitution, and the Administrative Procedure Act, 5 U.S.C. § 701, et seq. (APA), by Defendants' actions in implementing the Patient Protection and Affordable Care Act of 2010 (Pub. L. 111-148 (March 23, 2010), and Pub. L. 111-152 (March 30, 2010) (hereinafter "PPACA"), in ways that coerce the Plaintiffs and thousands of other conscientious individuals and entities and to engage in acts they consider sinful and immoral in violation of their most deeply held religious beliefs. 2. Plaintiffs Norman Hahn, Elizabeth Hahn, Norman Lemar Hahn, Anthony H. Hahn, and Kevin Hahn (hereinafter "the Hahns") are practicing and believing Mennonite Christians. They own and operate Conestoga Wood Specialties Corporation, a Pennsylvania corporation, located at 245 Reading Road, East Earl, PA 17519 (hereinafter "Conestoga"), a wood cabinet and specialty products manufacturer, and they seek to operate Conestoga in a manner that reflects their sincerely held religious beliefs. The Hahns, based upon these sincerely held religious beliefs as formed by the moral teachings of their Mennonite Christian beliefs, believe that God requires respect for the sanctity of human life. 3. Applying this religious faith and the moral teachings of the Mennonite faith, the Hahns have concluded that it would be sinful and immoral for them to intentionally participate in, pay for, facilitate, or otherwise support any contraception with an abortifacient effect through health insurance coverage they offer at Conestoga. As a consequence, the Hahns provide health insurance benefits to their employees that omits such coverage of abortifacient drugs. The Hahns' plan renews each year on January 1, the next renewal date having occurred on January 1,
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2013, creating the very real potential for harm to the Plaintiffs and their sincerely held religious
beliefs if forced to include such coverage.
4. With full knowledge that many religious citizens hold the same or similar beliefs,
on February 15,2012 the Defendants finalized rules through the Departments ofHHS, Labor and
Treasury (those rules collectively referred to hereinafter as the "Preventive Services Mandate" or
the "Mandate"!) that force Plaintiffs to pay for and otherwise facilitate the insurance coverage
and use of contraception with an abortifacient effect and related education and counseling. This
Mandate applies to Plaintiffs solely because they wish to operate their business in the United
States of America.
5. Similarly to other religious groups and entities organized by people of faith, the
Hahns believe that compliance with Defendants' Mandate would require them to violate their
deeply held religious beliefs as exemplified by the moral teachings of the Mennonite Church.
The Mandate illegally and unconstitutionally coerces the Plaintiffs to violate their sincerely held
religious beliefs under threat of heavy fines and penalties. The Mandate also forces the Plaintiffs
! The Mandate consists of a conglomerate of authorities, including: "Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act," 77 Fed. Reg. 8725-30 (Feb. 15, 2012); the prior interim final rule found at 76 Fed. Reg. 46621-26 (Aug. 3, 2011) which the Feb. 15 rule adopted "without change"; the guidelines by Defendant HHS's Health Resources and Services Administration (HRSA), http://www.hrsa.gov/womensguidelines/, mandating that health plans include no-cost-sharing coverage of "All Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity" as part of required women's "preventive care"; regulations issued by Defendants in 2010 directing HRSA to develop those guidelines, 75 Fed. Reg. 41726 (July 19, 2010); the statutory authority found in 42 U.S.C. § 300gg-13(a)(4) requiring unspecified preventive health services generally, to the extent Defendants have used it to mandate coverage to which Plaintiffs and other employers have religious objections; penalties existing throughout the United States Code for noncompliance with these requirements; and other provisions of PPACA or its implementing regulations that affect exemptions or other aspects of the Mandate.
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to fund government dictated speech that is directly at odds with the religious ethics derived from their deeply held religious beliefs and the moral teachings ofthe Mennonite Faith that they strive to embody in their business. Defendants' coercion tramples on the freedom of conscience of Plaintiffs and millions of other Americans to abide by their religious convictions, to comply with moral imperatives they believe are decreed by God Himself, and to contribute to society through their business in a way that is consistent with their religious ethics, deeply held religious beliefs, and the moral teachings of the Mennonite Church.
6. Defendants' refusal to accommodate the conscience of the Plaintiffs is highly selective. PPACA exempts a variety of health plans from the Mandate, and upon information and belief the government has provided thousands of exemptions from the PPACA for various entities such as large corporations. But Defendants' Mandate does not exempt Plaintiffs' plan or those of many other religious Americans.
7. Defendants' actions violate the Plaintiffs' right freely to exercise religion, protected by the Religious Freedom Restoration Act and the Religion Clauses of the First Amendment to the United States Constitution.
8. Defendants' actions also violate the Plaintiffs' right to the freedom of speech, as secured by the Free Speech Clause of the First Amendment to the United States Constitution, and their due process rights secured by the Fifth Amendment to the United States Constitution.
9. Additionally, Defendants violated the Administrative Procedure Act, 5 U.S.C. § 553, by imposing the Mandate without prior notice or public comment, and for other reasons.
10. Plaintiffs are faced with imminent harm due to Defendants' Mandate. The Mandate by its terms forces Plaintiffs to obtain and pay for insurance coverage of the objectionable items in their January 1,2013 plan. Plaintiffs therefore will suffer irreparable harm
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on or before January 1,2013, unless the Court enters declaratory and injunctive relief to protect Plaintiffs from Defendants' deliberate attack on their consciences and religious freedoms which would result from forced compliance with the Mandate.
IDENTIFICATION OF PARTIES 11. Conestoga Wood Specialties Corporation, a Pennsylvania corporation (herein after referred to as "Conestoga"), doing business at 245 Reading Road, East Earl, Pennsylvania, is a wholly owned family business that manufactures wood cabinets and wood specialty products. It is owned and operated as a privately held corporation principally by Plaintiffs Norman Hahn, Elizabeth Hahn, Norman Lemar Hahn, Anthony H. Hahn, and Kevin Hahn, the founder and his wife and sons respectively, who currently manage the business. Together they exercise sole ownership of and management responsibility for Conestoga. 12. Plaintiff Norman Hahn, is a shareholder of Plaintiff Conestoga, a member of the Conestoga Board of Directors, and serves as Vice President of the Board. 13. Plaintiff Elizabeth Hahn, is a shareholder of Plaintiff Conestoga and is a member of the Board of Directors. 14. Plaintiff Norman Lemar Hahn is a shareholder of Plaintiff Conestoga and is Chairman of the Board of Directors. 15. Plaintiff Anthony H. Hahn is a shareholder of Plaintiff Conestoga and is a member of the Board of Directors and President and Chief Executive Officer. 16. Plaintiff Kevin Hahn is a shareholder of Plaintiff Conestoga and is a member of the Board of Directors. 17. By virtue of their ownership, directorship and officer positions, the Hahn's are responsible for implementing Conestoga's compliance with Defendants' Mandate.
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18. Defendants are appointed officials of the United States government and United States Executive Branch agencies responsible for issuing and enforcing the Mandate.
19. Defendant Kathleen Sebelius is the Secretary of the United States Department of Health and Human Services (HHS). In this capacity, she has responsibility for the operation and management ofHHS. Sebelius is sued in her official capacity only.
20. Defendant HHS is an executive agency of the United States government and is responsible for the promulgation, administration and enforcement of the Mandate.
21. Defendant Hilda Solis is the Secretary of the United States Department of Labor. In this capacity, she has responsibility for the operation and management of the Department of Labor. Solis is sued in her official capacity only.
22. Defendant Department of Labor is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
23. Defendant Timothy Geithner is the Secretary of the Department of the Treasury. In this capacity, he has responsibility for the operation and management of the Department. Geithner is sued in his official capacity only.
24. Defendant Department of Treasury is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
JURISDICTION AND VENUE 25. This action arises under the Constitution and laws of the United States. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 & 1361, jurisdiction to render declaratory and injunctive relief under 28 U.S.C. §§ 2201 & 2202, 42 U.S.c. § 2000bb-l, 5
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u.s.c. § 702, and Fed. R. Civ. P. 65, and to award reasonable attorney's fees and costs under the
Equal Access to Justice Act, 28 U.S.C. § 2412, and 42 U.S.C. § 1988. 26. Venue lies in this district pursuant to 28 U.S.C. § 1391(e). A substantial part of
the events or omissions giving rise to the claim occurred in this district, and the Plaintiffs are located in this district.
FACTUAL ALLEGATIONS I. The Hahns' Religious Beliefs and Operation of Conestoga
27. The Hahns are practicing and believing Mennonite Christians. 28. They strive to follow Mennonite ethical beliefs and religious and moral teachings throughout their lives, including in their operation of Conestoga. 29. The Hahns sincerely believe that the Mennonite faith does not allow them to violate Mennonite religious and moral teachings in their decisions operating Conestoga. They believe that according to the Mennonite faith their operation of Conestoga must be guided by ethical social principles and Mennonite religious and moral teachings, that the adherence of their business practice according to such Mennonite ethics and religious and moral teachings is a genuine calling from God, that their Mennonite faith prohibits them from separating their religious beliefs from their daily business practice, and that their Mennonite faith requires them to integrate the gifts of the spiritual life, the virtues, morals, and ethical and social principles of Mennonite teaching into their life and work. 30. The Mennonite Church teaches that taking of life which includes anything that terminates a fertilized embryo is intrinsic evil and a sin against God to which they are held accountable. Therefore, abortion and any abortifacient contraception that may cause an abortion is equally objectionable to the Plaintiff.
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31. As a matter of religious faith the Hahns believe that these Mennonite teachings are among the religious ethical teachings they must follow throughout their lives including in their business practice.
32. Consequently, the Hahns believe that it would be immoral and sinful for them to intentionally participate in, pay for, facilitate, or otherwise support abortifacient drugs, contraception with an abortifacient effect, and related education and counseling, as would be required by the Mandate, through their inclusion in health insurance coverage offered by Conestoga.
33. Conestoga's mission statement includes the commitment that "We operate in a professional environment founded upon the highest ethical, moral, and Christian principles reflecting respect, support, and trust for our customers, our suppliers, our employees and their families."
34. The Hahns have always operated Conestoga in accordance with their Mennonite beliefs including but not limited to the structuring of their health insurance plan.
35. As a result of their deeply held beliefs both Conestoga and the Hahn's make substantial contributions to a variety of charitable and community organizations every year above and beyond their giving to the individual churches they attend.
II. Conestoga's Health Insurance Plan 36. As part of fulfilling their vision and mission statement and religious beliefs and
commitments, Plaintiffs provide generous health insurance for their employees. 37. Conestoga has approximately 950 full-time employees throughout its various
locations in the United States.
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38. The health insurance plan year for Conestoga begins on January 1 of each year, with the next plan year starting on January 1,2013.
39. The health insurance plan that was to become effective January 1,2013 provided for abortifacient drugs and contraception with an abortifacient effect.
40. To implement the plan for the new year beginning January 1, 2013, and/or make substantial plan changes as a result ofthe Mandate, Plaintiffs must make logistical arrangements on or before December 31, 2012 in order for the plan to be arranged, reviewed, finalized and communicated to employees prior to the plan year's January 1,2013 start date.
III. The PPACA and Defendants' Mandate Thereunder 41. Under the PPACA, employers with over 50 full-time employees are required to
provide a certain minimum level of health insurance to their employees. 42. Nearly all such plans must include "preventive services," which must be offered
with no cost-sharing by the employee. 43. On February 10,2012, the Department of Health and Human Services finalized a
rule (previously referred to in this Complaint as the Mandate) that imposes a definition of preventive services to include all FDA approved "contraceptive" drugs, surgical sterilization, and education and counseling for such services.
44. This final rule was adopted without giving due weight to the tens of thousands of public comments submitted to HHS in opposition to the Mandate.
45. In the category of "FDA approved contraceptives" included in this Mandate are several drugs or devices that may cause the demise of an already conceived but not yet attached human embryo, such as "emergency contraception" or "Plan B" drugs (the so called "morning after" pill).
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46. The FDA approved in this same category a drug called "ella" (the so called "week after" pill), which studies show can function to kill embryos even after they have attached to the uterus, by a mechanism similar to the abortion drug RU-486.
47. The manufacturers of some such drugs, methods and devices in the category of "FDA approved contraceptive methods" indicate that they can function to cause the demise of an early human embryo.
48. The Mandate also requires group health care plans to pay for the provision of counseling, education, and other information concerning contraception (including devices and drugs such as "Plan B" and "ella" that cause early abortions or harm to human embryos) for all women beneficiaries who are capable of bearing children.
49. The Mandate applies to the first health insurance plan year beginning after August 1,2012.
50. Thus Plaintiffs are, absent relief from this Court, subject to the Mandate's requirement of coverage of the above described items starting with Conestoga's January 1,2013 plan.
51. The Mandate makes little or no allowance for the religious freedom of entities and individuals, including Plaintiffs, who object to paying for or providing insurance coverage for such items.
52. An entity cannot freely avoid the Mandate by simply refusing to provide health insurance to its employees, because the PPACA imposes monetary penalties on entities that would so refuse to provide a health insurance plan.
53. The exact magnitude of these penalties may vary according to the complicated provisions of the PPACA, but the fine is approximately $2,000 per employee per year.
10

Case 5:12-cv-06744-MSG Document 48 Filed 01/11/13 Page 11 of 33
54. PPACA also imposes monetary penalties if Conestoga were to continue to offer its health insurance plan to employees but continued omitting abortifacients and contraceptives with an abortifacient effect.
55. The exact magnitude of these penalties may vary according to the complicated provisions of the PPACA, but the fine is approximately $100 per day per employee, with minimum amounts applying in different circumstances.
56. If Plaintiffs do not submit to the Mandate they also trigger a range of enforcement mechanisms that exist under ERISA, including but not limited to civil actions by the Secretary of Labor or by plan participants and beneficiaries, which would include but not be limited to relief in the form of judicial orders mandating that Plaintiffs violate their sincerely held religious beliefs and provide coverage for items to which they religiously object.
57. The Mandate applies not only to sponsors of group health plans like Plaintiffs, but also to issuers of insurance. Accordingly, Plaintiffs cannot avoid the Mandate by shopping for an insurance plan that accommodates their right of conscience, because the Administration has intentionally foreclosed that possibility.
58. The Mandate offers the possibility of a narrow exemption to religious employers, but only if they meet all of the following requirements:
(1) "The inculcation of religious values is the purpose of the organization"; (2) "The organization primarily employs persons who share the religious tenets of the
organization"; (3) "The organization serves primarily persons who share the religious tenets of the
organization"; and (4) The organization is a church, an integrated auxiliary of a church, a convention or
association of churches, or is an exclusively religious activity of a religious order, under Internal Revenue Code 6033(a)(1) and (a)(3)(A).
11

Case 5:12-cv-06744-MSG Document 48 Filed 01/11/13 Page 12 of 33
59. Plaintiffs are deemed not "religious" enough by the Defendants under this definition in several respects, including but not limited to because they have purposes other than the "inculcation of religious values," they do not primarily hire or serve Mennonites, and because Conestoga is not a church, integrated auxiliary of a particular church, convention or association of a church, or the exclusively religious activities of a religious order.
60. The Mandate fails to protect the statutory and constitutional conscience rights of religious Americans like Plaintiffs even though those rights were repeatedly raised in the public comments.
61. The Mandate requires that Plaintiffs provide coverage for abortifacient methods and contraception with a possible abortifacient effect and counseling related to the same, against their conscience and in violation of their religious beliefs, in a manner that is contrary to law.
62. The Mandate constitutes government-imposed coercion on Plaintiffs to change or violate their sincerely held religious beliefs.
63. The Mandate exposes Plaintiffs to substantial fines for refusal to change or violate their religious beliefs.
64. Plaintiffs have a sincere conscientious religious objection to providing coverage for abortifacients and contraception with an abortifacient effect and related education and counseling.
65. The Mandate does not apply equally to all religious adherents or groups. 66. PPACA and the Mandate are not generally applicable because they provide for numerous exemptions from their rules.
12

Case 5:12-cv-06744-MSG Document 48 Filed 01/11/13 Page 13 of 33
67. For instance, the Mandate does not apply to members of a "recognized religious sect or division" that conscientiously objects to acceptance of public or private insurance funds. See 26 U.S.C. §§ 5000A(d)(2)(a)(i) and (ii). Plaintiffs do not meet this exemption.
68. In addition, as described above, the Mandate exempts certain churches narrowly considered to be religious employers.
69. Furthermore, the PPACA creates a system of individualized exemptions because under the PPACA's authorization the federal government has granted discretionary compliance waivers to a variety of businesses for purely secular reasons.
70. The Mandate does not apply to employers with preexisting plans that are "grandfathered. "
71. Conestoga's plan is not grandfathered under PPACA, nor will its plan year that starts on January 1,2013 have grandfathered status.
72. The Mandate does not apply through the employer mandate to employers having fewer than 50 full-time employees.
73. President Obama held a press conference on February 10,2012, and later (through Defendants) issued an "Advanced Notice of Proposed Rulemaking" ("ANPRM") on March 21, 2012 (77 Fed. Reg. 16501-08), claiming to offer a "compromise" under which some religious non-profit organizations not meeting the above definition would still have to comply with the Mandate, but by means of the employer's insurer offering the employer's employees the same coverage for "free."
74. This "compromise" is not helpful to Plaintiffs because, among other reasons, Conestoga is not a non-profit entity.
13

Case 5:12-cv-06744-MSG Document 48 Filed 01/11/13 Page 14 of 33
75. The ANPRM is neither a rule, a proposed rule, nor the specification of what a rule proposed in the future would actually contain. It in no way changes or alters the final status of the February 15, 2012 Mandate. It does not even create a legal requirement that Defendants change the Mandate at some time in the future.
76. On February 10,2012 a document was also issued from the Center for Consumer Information and Insurance Oversight (CClIO), Centers for Medicare & Medicaid Services (CMS), of HHS, entitled "Guidance on the Temporary Enforcement Safe Harbor for Certain Employers, Group Health Plans and Group Health Insurance Issuers with Respect to the Requirement to Cover Contraceptive Services Without Cost Sharing Under Section 2713 of the Public Health Service Act, Section 715(a)(1) of the Employee Retirement Income Security Act, and Section 9815(a)(1) of the Internal Revenue Code."
77. Under this "Guidance," an organization that truthfully declares "I certify that the organization is organized and operated as a non-profit entity; and that, at any point from February 10,2012 onward, contraceptive coverage has not been provided by the plan, consistent with any applicable State law, because of the religious beliefs of the organization," and that provides a specified notice to plan participants, will not "be subject to any enforcement action by the Departments for failing to cover recommended contraceptive services without cost sharing in non-exempted, non-grandfathered group health plans established or maintained by an organization, including a group or association of employers within the meaning of section 3(5) of ERISA, (and any group health insurance coverage provided in connection with such plans)," until "the first plan year that begins on or after August 1,2012."
78. The "Guidance" categorically disqualifies Plaintiffs from making use of this "extra year" because, among other reasons, Conestoga is not a non-profit entity.
14

Case 5:12-cv-06744-MSG Document 48 Filed 01/11/13 Page 15 of 33
79. Therefore while President Obama's "compromise" and guidance purport to accommodate the religious beliefs of even more groups beyond the Mandate's initial exemption for churches, none of these measures will stop the Mandate from imposing its requirements on Plaintiffs' plan year beginning January 1,2013.
80. The Mandate will have a profound and adverse effect on Plaintiffs and how they negotiate contracts and compensate their employees.
81. Any alleged interest Defendants have III providing free FDA-approved contraception and abortifacients without cost-sharing could be advanced through other, more narrowly tailored mechanisms that do not burden the religious beliefs of Plaintiffs and do not require them to provide or facilitate coverage of such items through their health plan.
82. Without injunctive and declaratory relief as requested herein, including preliminary injunctive relief issued on or before December 31, 2012, Plaintiffs are suffering and will continue to suffer irreparable harm.
83. Plaintiffs have no adequate remedy at law. IV. Additional Factual Allegations
84. Conestoga's plan covers pregnancy related expenses, such as prenatal and post parturn care, delivery, newborn care, routine GYN care including Pap test, mammogram annual screening, well woman visits, screening for gestational diabetes, human papilloma virus testing, human immunodeficiency virus screening and breast feeding support and supplies among other things. The plan does not consider pregnancy an excluded pre-existing condition.
85. Conestoga's plan has a wellness program for employees which includes promoting the health of women during and after pregnancy.
15

Case 5:12-cv-06744-MSG Document 48 Filed 01/11/13 Page 16 of 33
86. Conestoga's plan is not grandfathered under PPACA because for the January 2011 plan year, Conestoga did not provide notification to plan participants that its plan was considered grandfathered (because the plan was not considered grandfathered).
87. It would significantly injure Plaintiffs and their employees to require them to wait beyond December 31, 2012 to know whether their January 1, 2013 health plan will cover the items required by the Mandate.
88. Plaintiffs' decision on the plan's terms must be made based on knowing what items the plan will or will not cover and what levels of employee contributions will be needed to meet Conestoga's budget based on what services and supplies are covered by the plan.
89. If Plaintiffs were forced to add no cost sharing "contraceptives" including those that act to destroy early embryos, as well as patient education and counseling in facilitation of the aforementioned, all of which are required by the Mandate, Plaintiffs would have to take that inclusion into account at the time they decide what coverages and employee contributions the budget of Conestoga can afford.
90. Adding the Mandated items will require Conestoga to either eliminate coverage of other services included in the plan, increase employee contributions or possibly both.
91. Therefore, if Plaintiffs are not afforded prompt injunctive relief against the Mandate, they and their employees face imminent and irreparable injury.
92. On October 31, 2012, the Board of Directors adopted "The Hahn Family Statement on the Sanctity of Human Life." The statement provides that:
"The Hahn family believes that the Bible is the inspired, infallible and authoritative written Word of God, the one and only eternal God. Found in the Bible, Exodus 20:13 (NIV) as one of the "Ten Commandments", God commands, "You shall not kill."
16

Case 5:12-cv-06744-MSG Document 48 Filed 01/11/13 Page 17 of 33
Found in the Bible, Psalms, 139:13-16 (NIV), the writer acknowledges God in how he was made and says... " 13For you created my inmost being; you knit me together in my mother's womb. 141 will praise you because 1 am fearfully and wonderfully made; your works are wonderful, 1 know that full well. 15My frame was not hidden from you when 1 was made in the secret place, when 1 was woven together in the depths of the earth. 16Your eyes saw my unformed body; all the days obtained for me were written in your book before one of them came to be." The Hahn Family believes that human life begins at conception (at the point where an egg and sperm unite) and that it is a sacred gift from God and only God has the right to terminate human life. Therefore it is against our moral conviction to be involved in the termination of human life through abortion, suicide, euthanasia, murder, or any other acts that involve the deliberate taking of human life."
FIRST CLAIM FOR RELIEF Violation of the Religious Freedom Restoration Act
42 U.S.C. § 2000bb 93. Plaintiffs restate all matters set forth in the preceding paragraphs and incorporate them herein by reference. 94. Plaintiffs' sincerely held religious beliefs prohibit them from providing coverage for abortifacients and contraception with a possible abortifacient effect as well as education and counseling promoting the same in their employee health plan. 95. When Plaintiffs comply with Mennonite and personally held ethical and moral teachings on abortifacients and with their sincerely held religious beliefs, they exercise religion within the meaning of the Religious Freedom Restoration Act. 96. The Mandate imposes a substantial burden on Plaintiffs' religious exercise and coerces them to change or violate their sincerely held religious beliefs. 97. The Mandate chills Plaintiffs' religious exercise within the meaning of RFRA. 98. The Mandate exposes Plaintiffs to substantial fines and/or financial burdens for
their religious exercise.
17

Case 5:12-cv-06744-MSG Document 48 Filed 01/11/13 Page 18 of 33
99. The Mandate furthers no compelling governmental interest and is not narrowly tailored to any compelling governmental interest.
100. The Mandate is not the least restrictive means of furthering Defendants' stated interests.
101. The Mandate violates RFRA. WHEREFORE, the Plaintiffs pray for the relief set forth below in the prayer for relief.
SF-C.OND CLAIM FOR RELIEF Violation of Free Exercise Clause of the First Amendment
to the United States Constitution 102. Plaintiffs restate all matters set forth in the preceding paragraphs and incorporate them herein by reference. 103. Plaintiffs' sincerely held religious beliefs prohibit them from providing coverage for abortifacients, contraception with even a possible abortifacient effect, and education and counseling promoting the same in their employee health plan. 104. When Plaintiffs comply with Mennonite and personally held ethical and moral teachings on abortifacients and with their sincerely held religious beliefs, they exercise religion within the meaning of the Free Exercise Clause. 105. The Mandate is not neutral and is not generally applicable. 106. Defendants have created categorical exemptions and individualized exemptions to the Mandate. 107. The Mandate furthers no compelling governmental interest. 108. The Mandate is not the least restrictive means of furthering Defendants' stated interests.
18

Case 5:12-cv-06744-MSG Document 48 Filed 01/11/13 Page 19 of 33
109. The Mandate coerces Plaintiffs to change or violate their sincerely held religious beliefs.
110. The Mandate chills Plaintiffs' religious exercise. 111. The Mandate exposes Plaintiffs to substantial fines andlor financial burdens for their religious exercise. 112. The Mandate imposes a substantial burden on Plaintiffs' religious exercise. 113. The Mandate is not narrowly tailored to any compelling governmental interest. 114. By design, Defendants framed the Mandate to apply to some religious Americans but not to others, resulting in discrimination among religions. 115. Defendants have created exemptions to the Mandate for some religious believers but not others based on characteristics of their beliefs and their religious exercise. 116. Defendants designed the Mandate, the religious exemption thereto, and the "compromise" and guidance allowances thereto, in a way that makes it impossible for Plaintiffs and other similar religious Americans to comply with their sincerely held religious beliefs. 117. Defendants promulgated both the Mandate and the religious exemption/allowances with the purpose and intent to suppress the religious exercise of Plaintiffs and others. 118. The Mandate violates Plaintiffs' rights secured to them by the Free Exercise Clause of the First Amendment of the United States Constitution. WHEREFORE, the Plaintiffs pray for the relief set forth below in the prayer for relief.
THIRD CLAIM FOR RELIEF Violation of the Establishment Clause of the First Amendment to the United States Constitution
19

Case 5:12-cv-06744-MSG Document 48 Filed 01/11/13 Page 20 of 33
119. Plaintiffs restate all matters set forth in the preceding paragraphs and incorporate them herein by reference.
120. The First Amendment's Establishment Clause prohibits the establishment of any religion and/or excessive government entanglement with religion.
121. To determine whether religious persons or entities like Plaintiffs are required to comply with the Mandate, are required to continue to comply with the Mandate, are eligible for an exemption or other accommodations, or continue to be eligible for the same, Defendants must examine the religious beliefs and doctrinal teachings of persons or entities like Plaintiffs.
122. Obtaining sufficient information for the Defendants to analyze the content of Plaintiffs' sincerely held religious beliefs requires ongoing, comprehensive government surveillance that impermissibly entangles Defendants with religion.
123. The Mandate discriminates among religions and among denominations, favoring some over others, and exhibits a hostility to religious beliefs.
124. The Mandate adopts a particular theological view of what is acceptable moral complicity in provision of abortifacients and imposes it upon all people of religion who must either conform their consciences or suffer penalty.
125. The Mandate violates Plaintiffs' rights secured to them by the Establishment Clause of the First Amendment of the United States Constitution.
WHEREFORE, the Plaintiffs pray for the relief set forth below in the prayer for relief.
FOURTH CLAIM FOR RELIEF Violation of the Free Speech Clause of the First Amendment
to the United States Constitution 126. Plaintiffs restate all matters set forth in the preceding paragraphs and incorporate them herein by reference.
20

Case 5:12-cv-06744-MSG Document 48 Filed 01/11/13 Page 21 of 33
127. Defendants' requirement of provision of insurance coverage for education and counseling regarding contraception with an abortifacient effect and other abortion causing drugs forces Plaintiffs to speak in a manner contrary to their religious beliefs.
128. Defendants have no narrowly tailored compelling interest to justify this compelled speech.
129. The Mandate violates Plaintiffs' rights secured to them by the Free Speech Clause of the First Amendment of the United States Constitution.
WHEREFORE, the Plaintiffs pray for the relief set forth below in the prayer for relief. FIFTH CLAIM FOR RELIEF
Violation of the Due Process Clause of the Fifth Amendment to the United States Constitution 130. Plaintiffs restate all matters set forth in the preceding paragraphs and incorporate them herein by reference. 131. Because the Mandate sweepingly infringes upon religious exercise and speech rights that are constitutionally protected, it is unconstitutionally vague and overbroad in violation of the due process rights of Plaintiffs and other parties not before the Court. 132. Persons of common intelligence must necessarily guess at the meaning, scope, and application of the Mandate and its exemptions. 133. This Mandate lends itself to discriminatory enforcement by government officials in an arbitrary and capricious manner. 134. The Mandate vests Defendants with unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations meeting whatever definition of "religious employers" it decides to craft.
21

Case 5:12-cv-06744-MSG Document 48 Filed 01/11/13 Page 22 of 33
135. This Mandate is an unconstitutional violation of Plaintiffs' due process rights under the Fifth Amendment to the United States Constitution.
WHEREFORE, the Plaintiffs pray for the relief set forth below in the prayer for relief. SIXTH CLAIM FOR RELIEF
Violation of the Administrative Procedure Act 136. Plaintiffs restate all matters set forth in the preceding paragraphs and incorporate them herein by reference. 137. Because they did not give proper notice (h1'}d a..1J. opporttmity for public comment, Defendants did not take into account the full implications of the regulations by completing a meaningful consideration of the relevant matter presented. 138. Defendants did not consider or respond to the voluminous comments they received in opposition to the interim final rule. 139. Therefore, Defendants have taken agency action not in accordance with procedures required by law, and Plaintiffs are entitled to relief pursuant to 5 U.S.C. § 706(2)(D). 140. In promulgating the Mandate, Defendants failed to consider the constitutional and statutory implications of the Mandate on Plaintiffs and similar persons. 141. Defendants' explanation (and lack thereof) for its decision not to exempt Plaintiffs and similar religious organizations from the Mandate runs counter to the evidence submitted by religious Americans during the comment period. 142. Thus, Defendants' issuance of the Mandate was arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because the Mandate fails to consider the full extent of its implications and it does not take into consideration the evidence against it. 143. As set forth above, the Mandate violates RFRA and the First and Fifth Amendments.
22

Case 5:12-cv-06744-MSG Document 48 Filed 01/11/13 Page 23 of 33
144. The Mandate is also contrary to the provisions of the PPACA which states that "nothing in this title"-i.e., title I of the Act, which includes the provision dealing with "preventive services"-"shall be construed to require a qualified health plan to provide coverage of [abortion] services . . . as part of its essential health benefits for any plan year." Section 1303(b)(1 )(A). Some drugs included as "FDA approved contraceptives" under the Mandate cause abortions by causing the demise of human embryos before and/or after attachment to the uterus.
145. The Mandate is also contrary to the provisions of the Weldon Amendment of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act of 2009, Public Law 110 329, Div. A, Sec. 101, 122 Stat. 3574, 3575 (Sept. 30, 2008), which provides that "[nJone of the funds made available in this Act [making appropriations for Defendants Department of Labor and Health and Human Services] may be made available to a Federal agency or program ... if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions."
146. The Mandate also violates the provisions of the Church Amendment, 42 U.S.C. § 300a-7(d), which provides that "No individual shall be required to perform or assist in the performance of any part of a health service program or research activity funded in whole or in part under a program administered by the Secretary of Health and Human Services if his performance or assistance in the performance of such part of such program or activity would be contrary to his religious beliefs or moral convictions."
147. The Mandate is contrary to existing law and is in violation of the APA under 5 U.S.C. § 706(2)(A)f.
23

Case 5:12-cv-06744-MSG Document 48 Filed 01/11/13 Page 24 of 33
WHEREFORE, the Plaintiffs pray for the relief set forth below in the prayer for relief. PRAYER FOR RELIEF
Plaintiffs respectfully request the following relief: 146. That this Court enter a judgment declaring the Mandate and its application to Plaintiffs and others similarly situated but not before the Court to be an unconstitutional violation of their rights protected by RFRA, the Free Exercise, Establishment, and Free Speech Clauses of the First Amendment to the United States Constitution, the Due Process Clause of the Fifth Amendment to the United States Constitution, and the Administrative Procedure Act, and therefore invalid in any way applicable to them; 147. That this Court enter a preliminary and a permanent injunction prohibiting Defendants from applying the Mandate to Plaintiffs, their insurance carrier, individuals covered under the plan or any person similarly situated, but not before the Court in a way that substantially burdens the religious belief of Plaintiffs or any person in violation of RFRA and the Constitution, and prohibiting Defendants from continuing to illegally discriminate against Plaintiffs and others not before the Court by requiring them to provide health insurance coverage for abortifacients and contraception with an abortifacient effect and education and counseling promoting the same to their employees; 148. That this Court award Plaintiffs court costs and reasonable attorney's fees, as provided by the Equal Access to Justice Act and RFRA (as provided in 42 U.S.C. § 1983); 149. That this Court grant such other and further relief as to which the Plaintiffs may be entitled.
24

Case 5:12-cv-06744-MSG Document 48 Filed 01/11/13 Page 25 of 33

150. Plaintiffs demand a jury trial on all issues qualified for trial. Respectfully submitted this 11th day of January, 2013.

_f _

Randa

enger, Esquire

PA Attorney ID Number: 86537

Independence Law Center

23 North Front Street

Harrisburg, PA 17101

717-545-0600 (phone)

717-545-8107 (fax)

rwenger@indlawcenter.org

Attorneysfor Plaintiffs:
Charles W. Proctor, III, Esquire PA Attorney ID Number: 23266 Law Offices of Proctor Lindsay & Dixon 1204 Baltimore Pike, Suite 200 Chadds Ford, PA 19317 610-361-8600 (phone) 610-361-8843 (fax) cproctor@cplawl.com

25

Case 5:12-cv-06744-MSG Document 48 Filed 01/11/13 Page 26 of 33

VERIFICATION OF FIRST AMENDED VERIFIED COMPLAINT PURSUANT TO 28 U.S.C. § 17464
I declare under penalty ofpetjury that the foregoing is true and correct to the best of my knowledge.

/3 Executedon I-/cj··

Conestoga Wood Specialties Corp.

Case 5:12-cv-06744-MSG Document 48 Filed 01/11/13 Page 27 of 33
VERIFICATION OF FIRST AMENDED VERIFIED COMPLAINT PURSUANT TO 28 U.S.C. § t 746.t
I declare under penalty ofpeljury that the foregoing.is true and correct to the best afmy knowledge.
Executed on ! - / CJ -/~.,
Norman Hahn

Case 5:12-cv-06744-MSG Document 48 Filed 01/11/13 Page 28 of 33

VERIFICATION OF FIRST AMENDED VERIFIED COMPLAINT PURSUANT TO 28 V.S.c. § 1746:t
I declare under penalty ofpeljury that the foregoing is true and corre~t to the best of my knowledge.

Executed on I-It) -/.3

Conestoga Wood Specialties Corp.

Case 5:12-cv-06744-MSG Document 48 Filed 01/11/13 Page 29 of 33
VERIFICATION OF FIRST AMENDED VERIFIED COMPLAINT PURSUANT TO 28 U.S.C. § 1746+
I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.
Executedon I -/0 ~/3

Case 5:12-cv-06744-MSG Document 48 Filed 01/11/13 Page 30 of 33
VERIFICATION OF FIRST AMENDED VERIFIED COMPLAINT PURSUANT TO 28 U.S.c. § 1746+
I.dec1are under penalty ofperjury that the foregoin.g is true.and correct to the best ofmy knowledge.
Executed on /-/tJ -;-3
Eli~eth Hahn

Case 5:12-cv-06744-MSG Document 48 Filed 01/11/13 Page 31 of 33

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

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Case 5:12-cv-06744-MSG Document 48 Filed 01/11/13 Page 32 of 33

UNITED STATES DISTRICT COURT
for the Eastern District of Pennsylvania

CONESTOGA WOOD SPECIALTIES CORP.,

)

Plaintiffs,

)

v.

)

UNITED STATES DEPARTMENT OF HEALTH AND

)

HUMAN SERVICES; UNITED STATES DEPARTMENT )

OF LABOR; UNITED STATES DEPARTMENT OF

)

TREASURY; KATHLEEN SEBELIUS, in her official capacity )

as Secretary of the United States Department of Health and

)

Human Services; HILDA SOLIS, in her official capacity as )

Secretary of the United States Department of Labor; and

)

TIMOTHY GEITHNER, in his official capacity as Secretary )

of the United States Department of Treasury.

)

Defendants.

)

Civil Action No. S:12-CV-06744-MSG

CERTIFICATION OF SERVICE

The undersigned counsel for Plaintiffs, Charles W. Proctor, III, Esquire, hereby certifies

that the following counsel for Defendants were served with Plaintiffs' First Amended Verified

Complaint document by the Court's ECF filing system on January 11th 2013:

u.s. Dep't. of Health and Human Services 200 Independence Avenue S.W. Washington, DC 20201

Kathleen Sebelius, in her official capacity as Secretary of the U.S. Dep't of Health and Human Services 200 Independence Avenue S.W. Washington, DC 20201

u.S. Dep't of the Treasury 1500 Pennsylvania Avenue N.W. Washington, DC 20220

Timothy Geithner, in his official capacity as Secretary of the U.S. Dep't of Treasury 1500 Pennsylvania Avenue N.W. Washington, DC 20220

U.S. Dep't of Labor Frances Perkins Bldg. 200 Constitution Avenue N.W. Washington, DC 20201

Linda Solis, in her official capacity as Secretary of the U.S. Dep't of Labor Frances Perkins Bldg. 200 Constitution Avenue N.W. Washington, DC 20201

Case 5:12-cv-06744-MSG Document 48 Filed 01/11/13 Page 33 of 33

Eric H. Holder, Jr. Attorney General of the United States U.S. Department of Justice 20 Massachusetts Avenue N.W. Washington, DC 20001
Mary Catherine Roper mroper@aclupa.org

Viveca Parker, Esquire U.S. Attorney's Office Eastern District of Pennsylvania 615 Chestnut Street, Suite 1250 Philadelphia, PA 19106
Michelle Renee Bennett michelle. bennett@usdoj.gov

/h n I,D db- r \J6\ Cw'JRA LV I ALK.Vl1 ~-
Charles W. Proctor, III, Esquire

 
 Case 5:12-cv-06744-MSG Document 55 Filed 01/16/13 Page 1 of 1

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

CONESTOGA WOOD SPECIALITIES : CIVIL ACTION

CORPORATION, et al.,

:

:

Plaintiffs,

:

:

v.

: NO. 12-6744

:

KATHLEEN SEBELIUS, et al.,

:

:

Defendants.

:

ORDER AND NOW, this 16th day of January, 2013, upon consideration of the “Joint Motion to Stay District Court Proceedings Pending Appeal” (Doc. No. 54), it is hereby ORDERED that the Motion is GRANTED. It is further ORDERED that the Clerk of Court mark this action closed for statistical purposes and place the matter in the Civil Suspense File.

BY THE COURT:
/s/ Mitchell S. Goldberg
______________________________ Mitchell S. Goldberg, J.

 
 Case 5:12-cv-06744-MSG Document 56 Filed 02/08/13 Page 1 of 4
Case: 13-1144 Document: 003111161038 Page: 1 Date Filed: 02/07/2013
January 29, 2013 CC0-046-E
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 13-1144
CONESTOGA WOOD SPECIALITIES CORPORATION; NORMAN HAHN; NORMAN LEMAR HAHN;
ANTHONY H. HAHN; ELIZABETH HAHN; KEVIN HAHN, Appellants
V.
SECRETARY OF THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; SECRETARY UNITED STATES DEPARTMENT OF LABOR; SECRETARY UNITED STATES DEPARTMENT OF THE TREASURY;UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; UNITED STATES
DEPARTMENTOFTHETREASURY (E.D. Pa. No. 5-12-cv-06744)
Before: RENDELL, JORDAN and GARTH, Circuit Judges
OPINION/ORDER RE EXPEDITED MOTION FOR INJUNCTION
Before us is a motion for a stay pending appeal, which, in our Court, is an extraordinary remedy. See United States v. Cianfrani, 573 F.2d 835, 846 (3d Cir. 1978). This case involves a challenge to the enforcement provisions of the Patient Protection and Affordable Care Act (the "ACA") and related regulations that require Conestoga to include coverage for contraception- including abortifacients and sterilization- in its employee health insurance plan. See 42 U.S.C. § 300gg-13(a)(4); 77 Fed. Reg. 8725 (Feb. 15, 2012). In essence, Plaintiffs Conestoga Wood Specialties Corporation, a secular, for-profit corporation, and five of its shareholders, the Hahns, claim that providing the mandated coverage would violate their religious beliefs. Plaintiffs brought suit in the Eastern District of Pennsylvania and filed a motion for a preliminary injunction to enjoin enforcement of the regulations. After holding an evidentiary hearing, the District Court issued a 34-page opinion on January 11, 2013, detailing its reasons for denying injunctive relief to Plaintiffs. See Conestoga Wood Specialties Corp. v. Sebelius, ---F. Supp. 2d ---,No. 12-6744, 2013 WL 140110 (E.D. Pa. Jan. 11, 2013). Plaintiffs subsequently filed a motion for a stay pending appeal in this Court.

Case 5:12-cv-06744-MSG Document 56 Filed 02/08/13 Page 2 of 4
Case: 13-1144 Document: 003111161038 Page: 2 Date Filed: 02/07/2013
As Judge Jordan notes, the standard for obtaining a stay pending appeal is essentially the same as that for obtaining a preliminary injunction. "A preliminary injunction is an extraordinary remedy never awarded as of right." Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24 (2008). To qualify for preliminary injunctive relief, a party must demonstrate "( 1) a likelihood of success on the merits; (2) that it will suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will not result in even greater harm to the nonmoving party; and (4) that the public interest favors such relief." Kos Pharm., Inc. v. Andrx Corp., 369 F. 3d 700, 708 (3d Cir. 2004). Therefore, in assessing the present motion for a stay pending appeal, we must consider the same four factors that the District Court considered after an evidentiary hearing, ultimately concluding that preliminary relief was not warranted.
Such stays are rarely granted, because in our Court the bar is set particularly high. Indeed, we have said that an "i~Dunction shall issue only if the plaintiff produces evidence sufficient to convince the district court that all four factors favor preliminary relief." NJ Hasp. Ass'n v. Waldman, 73 F.3d 509, 512 (3d Cir. 1995) (citation omitted). In other words, "[a] plaintiffs failure to establish any element in its favor renders a preliminary injunction inappropriate." NutraSweet Co. v. Vit-Mar Enter., Inc., 176 F.3d 151, 153 (3d Cir. 1999). This standard distinguishes the present case from most of the cases cited by Judge Jordan in his dissent, in which those courts applied a "sliding scale" standard, whereby preliminary injunctive relief may be granted upon particularly strong showing of one factor. In those cases, "[t]he more the balance of harms tips in favor of an injunction, the lighter the burden on the party seeking the injunction to demonstrate that it will ultimately prevail." Korte v. Sebelius, No. 12-3841, 2012 WL 6757353, at *2 (7th Cir. Dec. 28, 2012). I
I See also Grote v. Sebelius, --- F.3d ---, 13-1077,2013 WL 362725, at *3 (7th Cir. Jan. 30, 2013) (adopting the reasoning of Korte and applying the same "sliding scale" standard); Monaghan v. Sebelius, ---F. Supp. 2d ---,No. 12-15488, 2012 WL 6738476, at *3 (E.D. Mich. Dec. 30, 2012) (applying a standard that "[c]ourts ... may grant a preliminary injunction even where the plaintiff fails to show a strong or substantial probability of success on the merits, but where he at least shows serious questions going to the merits and irreparable harm which decidedly outweighs any potential harm to the defendant if the injunction is issued"); Am. Pulverizer Co. v. US. Dep 't ofHealth & Human Servs., No. 12-3459, slip op. at 8 (W.D. Mo. Dec. 20, 2012) (applying a sliding scale standard and finding that "the balance of equities tip strongly in favor of injunctive relief in this case and Plaintiffs have raised questions concerning their likelihood of success on the merits that are so serious and difficult as to call for more deliberate investigation"); Tyndale House Publishers, Inc. v. Sebelius, ---F. Supp. 2d ---,No. 121635,2012 WL 5817323, at *4 (D.D.C. Nov. 16, 2012) (applying a sliding scale standard by which "[i]fthe movant makes an unusually strong showing on one of the factors, then it does not necessarily have to make as strong a showing on another factor").
2

Case 5:12-cv-06744-MSG Document 56 Filed 02/08/13 Page 3 of 4
Case: 13-1144 Document: 003111161038 Page: 3 Date Filed: 02/07/2013
To be sure, the law requires us to balance the factors against each other; however Judge Jordan overstates the significance of Constructors Association of Western Pennsylvania v. Kreps, 573 F.2d 811 (3d Cir. 1978), in favor of applying a less stringent standard. The fact of the matter is that this Court has not sanctioned the "sliding scale" standard employed in other courts of appeals. Accordingly, we must examine each factor and determine whether Plaintiffs have met their burden as to each element.
We agree with the District Court's ruling that Plaintiffs have not met their burden in demonstrating likelihood of success on the merits. We find the District Court's reasoning persuasive and we incorporate it by reference herein. In short, it determined that Plaintiffs had not demonstrated their likelihood of success on the merits of their claims under either the First Amendment or the Religious Freedom Restoration Act ("RFRA"). Conestoga Wood Specialties Corp., 2013 WL 140110 at* 18. The District Court determined that, as a secular, for-profit corporation, Conestoga has no free exercise rights under the First Amendment, id. at *6-8, and is not a "person" under the RFRA, id.
at *10.
Concerning the Hahns' rights under the Free Exercise Clause of the First Amendment, the District Court concluded that the ACA regulations are generally applicable because they are not specifically targeted at conduct motivated by religious belief, and are neutral because the purpose of the regulations is to promote public health and gender equality instead oftargeting religion. !d. at *8-9. Because a neutral law of generally applicability need only be "rationally related to a legitimate government objective" to be upheld- and the government demonstrated that the regulations are just that- the District Court concluded that the Hahns' challenge to the regulations under the Free Exercise Clause were not likely to succeed. !d. (citing Combs v. Home-Ctr. Sch. Dist., 540 F.3d 231, 243 (3d Cir. 2008)). Likewise, the District Court found that the Hahns' claims under the RFRA were not likely to succeed because the burden imposed by the regulations does not constitute a "substantial burden" under the RFRA. While this question presents a close call, id. at* 12, the District Court ultimately concluded that any burden imposed by the regulations would be too attenuated to be considered substantial and that any burden on the Hahns' ability to exercise their religion would be indirect, id.
at *14.
Furthermore, regarding Plaintiffs' claim under the Establishment Clause of the First Amendment, the District Court found that the "religious employer exemption" of the ACA does not violate the Establishment Clause because it applies equally to organizations of every faith and does not favor one denomination over another, and does not create excessive government entanglement with religion. !d. at *15-16. Finally, the District Court found that Plaintiffs' Free Speech claim had little likelihood of success because the ACA regulations "affect[] what [Plaintiffs] must do ... not what they may or may not say," id. at *17 (quoting Rumsfeld v. Forum for Academic and Institutional
3

Case 5:12-cv-06744-MSG Document 56 Filed 02/08/13 Page 4 of 4
Case: 13-1144 Document: 003111161038 Page: 4 Date Filed: 02/07/2013

Rights, 547 U.S. 47, 60 (2006)), and the regulations do not interfere with Plaintiffs' expression of their opinions regarding contraceptives.
While we note that the issues in this case have not been definitively settled by this Court or the Supreme Court, we nonetheless find that Plaintiffs failed to prove a "reasonable likelihood of success on the merits," as required by law. See Assoc. NJ Rifle and Pistol Clubs v. Governor ofthe State ofNew Jersey,--- F.3d ---,No. 12-1624, 2013 WL 336680, at *2 (3d Cir. Jan. 30, 2013). Judge Goldberg's reasoning comports with that of other courts who analyzed the issue of whether a stay should be granted pending appeal in the same situation based on the same factors, and the same standard, that we do. See, e.g., Hobby Lobby Stores, Inc. v. Sebelius, No. 12-6294, 2012 WL 6930302, at *3 (lOth Cir. Dec. 20, 2012) (concluding that the reach of the RFRA does not "encompass the independent conduct of third parties with whom the plaintiffs have only a commercial relationship"). Plaintiffs and Judge Jordan take issue with certain aspects of Judge Goldberg's analysis and view of the case law; however, we conclude that his reasoning is sound and is not likely to be overturned on appeal.
While we recognize that, as Judge Jordan urges, the rights at stake are important, we do not, unlike other courts, relax our standard depending on the nature of the right asserted. Given our standard, because Plaintiffs failed to prove their likelihood of success on the merits, we DENY their request for extraordinary relief. Judge Garth is filing a concurrence and Judge Jordan is filing a dissent.
By the Court,

Dated: MB/cc:

Is/Marjorie 0. Rendell Circuit Judge
2/7/13 Charles W. Proctor, III, Esq. Randall L. Wenger, Esq. Michelle Renee Bennett, Esq. Alisa B. Klein, Esq. Mark B. Stern, Esq. Michelle Renee Bennett, Esq.

4

 
 (ORDER LIST: 571 U.S.) TUESDAY, NOVEMBER 26, 2013

13-115 13-299
13-354 13-356

CERTIORARI GRANTED WOOD, TIM, ET AL. V. MOSS, MICHAEL, ET AL. CLARK, BRANDON C., ET UX. V. RAMEKER, WILLIAM J., ET AL.
The petitions for writs of certiorari are granted. SEBELIUS, SEC. OF H&HS, ET AL. V. HOBBY LOBBY STORES, INC. CONESTOGA WOOD SPECIALTIES V. SEBELIUS, SEC. OF H&HS, ET AL.
The petitions for writs of certiorari are granted. The cases are consolidated and a total of one hour is allotted for oral argument.

 
 Case 5:12-cv-06744-MSG Document 72 Filed 08/14/14 Page 1 of 2

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

CONESTOGA WOOD SPECIALITIES : CIVIL ACTION

CORPORATION, et al.,

:

:

Plaintiffs,

:

:

v.

: NO. 12-6744

:

SYLVIA M. BURWELL, et al.,

:

:

Defendants.

:

ORDER
AND NOW, this 14th day of August, 2014, upon consideration of Plaintiffs’ “Amended Motion for Preliminary Injunction” (Doc. No. 62) and in light of the United States Supreme Court’s ruling in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), it is hereby ORDERED that Defendants are preliminarily ENJOINED from enforcing against Plaintiffs, their group health plan, and the group health insurance coverage provided in connection with that plan, the statute and regulations that require Plaintiffs to provide their employees coverage for “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity,” 77 Fed. Reg. 8725 (Feb. 15, 2012). This Order applies only to requirements regarding the provision of coverage for the contraceptive services to which Plaintiffs object on religious grounds. It should not be construed as applying to any other healthcare coverage required by law, including coverage of the other services required by the regulations regarding Women’s Preventive Healthcare.
IT IS FURTHER ORDERED that no bond is required.
1

Case 5:12-cv-06744-MSG Document 72 Filed 08/14/14 Page 2 of 2

IT IS SO ORDERED.

BY THE COURT:
/s/ Mitchell S. Goldberg ______________________________ Mitchell S. Goldberg, J.

2

 
 Case 5:12-cv-06744-MSG Document 82 Filed 10/02/14 Page 1 of 2

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

CONESTOGA WOOD SPECIALITIES : CIVIL ACTION

CORPORATION, et al.,

:

:

Plaintiffs,

:

:

v.

: NO. 12-6744

:

SYLVIA M. BURWELL, et al.,

:

:

Defendants.

:

ORDER

AND NOW, this 2nd day of October, 2014, upon consideration of “Defendants’ Notice of Consent to Injunction and Judgment” (Doc. No. 74) and in light of the United States Supreme Court’s ruling in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), it is hereby ORDERED that Defendants are permanently ENJOINED from enforcing against Plaintiffs, their group health plan, and the group health insurance coverage provided in connection with that plan, the statute and regulations that require Plaintiffs to provide their employees coverage for “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity[.]” See, e.g., 26 C.F.R. § 54.9815-2713(a)(1)(iv); 29 C.F.R. § 2590.715-2713(a)(1)(iv); 45 C.F.R. § 147.130(a)(1)(iv); 77 Fed. Reg. 8725 (Feb. 15, 2012).1 This Order applies only to requirements regarding the provision of coverage for the contraceptive services to which Plaintiffs object on religious grounds. It should not be construed as applying to any other 1 At the urging of the Government, and in an overabundance of caution, we note that should any future legislation or regulation come into effect providing for-profit entities a religious accommodation to the contraceptive coverage mandate, the Government reserves its right to enforce such legislation or regulation against Plaintiffs.
1

Case 5:12-cv-06744-MSG Document 82 Filed 10/02/14 Page 2 of 2 healthcare coverage required by law, including coverage of the other services required by the regulations regarding Women’s Preventive Healthcare.
IT IS FURTHER ORDERED that the Clerk of Court shall mark this case CLOSED. BY THE COURT: /s/ Mitchell S. Goldberg _____________________________ Mitchell S. Goldberg, J.
2

 
 Case: 5:12-cv-6744 As of: 02/20/2016 11:06 AM EST 1 of 11
CLOSED,A/R,SPECIAL
United States District Court Eastern District of Pennsylvania (Allentown) CIVIL DOCKET FOR CASE #: 5:12−cv−06744−MSG

CONESTOGA WOOD SPECIALITIES CORPORATION et al v. SEBELIUS et al Assigned to: HONORABLE MITCHELL S. GOLDBERG
Case in other court: USCA FOR THE THIRD CIRCUIT, 13−01144
Cause: 42:2000bb Religious Freedom Restoration Act of 1993
Plaintiff

Date Filed: 12/04/2012 Date Terminated: 10/02/2014 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

CONESTOGA WOOD SPECIALITIES CORPORATION

represented by CHARLES W. PROCTOR , III LAW OFFICES OF PROCTOR LINDSAY & DIXON, LLC 1204 BALTIMORE PIKE SUITE 200 CHADDS FORD, PA 19317 610−361−8600 Email: cproctor@cplaw1.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

MATTHEW S. BOWMAN ALLIANCE DEFENSE FUND 801 G STREET NW SUITE 509 WASHINGTON, DC 20001 202−637−4610 Fax: 202−347−3622 Email: mbowman@telladf.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

RANDALL LUKE WENGER INDEPENDENCE LAW CENTER 23 NORTH FRONT STREET HARRISBURG, PA 17101 717−657−4990 Fax: 717−545−8107 Email: rwenger@indlawcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff NORMAN HAHN

represented by CHARLES W. PROCTOR , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

MATTHEW S. BOWMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

RANDALL LUKE WENGER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff NORMAN LEMAR HAHN

represented by

Case: 5:12-cv-6744 As of: 02/20/2016 11:06 AM EST 2 of 11

CHARLES W. PROCTOR , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

MATTHEW S. BOWMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

RANDALL LUKE WENGER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff ANTHONY H. HAHN

represented by CHARLES W. PROCTOR , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

MATTHEW S. BOWMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

RANDALL LUKE WENGER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff ELIZABETH HAHN

represented by CHARLES W. PROCTOR , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

MATTHEW S. BOWMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

RANDALL LUKE WENGER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff KEVIN HAHN

represented by CHARLES W. PROCTOR , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

MATTHEW S. BOWMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

RANDALL LUKE WENGER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 5:12-cv-6744 As of: 02/20/2016 11:06 AM EST 3 of 11

V. Defendant KATHLEEN SEBELIUS IN HER OFFICIAL CAPACITY AS SECRETARY OF THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES
Defendant HILDA SOLIS IN HER OFFICIAL CAPACITY AS SECRETARY OF THE UNITED STATES DEPARTMENT OF LABOR
Defendant TIMOTHY GEITHNER IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE UNITED STATES DEPARTMENT OF THE TREASURY
Defendant UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES
Defendant UNITED STATES DEPARTMENT OF LABOR
Defendant UNITED STATES DEPARTMENT OF THE TREASURY
V. Movant THE AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA

represented by MICHELLE RENEE BENNETT U.S. DEPT OF JUSTICE CIVIL DIV FED PROGRAMS BRANCH 20 MASSACHUSETTS AVE NW WASHINGTON, DC 20001 202−305−8902 Email: michelle.bennett@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by MICHELLE RENEE BENNETT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by MICHELLE RENEE BENNETT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by MICHELLE RENEE BENNETT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by MICHELLE RENEE BENNETT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by MICHELLE RENEE BENNETT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by BRIGITTE AMIRI AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 BROAD ST 18TH FL NEW YORK, NY 10004 212−549−2633 Email: bamiri@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
MARY CATHERINE ROPER ACLU OF PA

Case: 5:12-cv-6744 As of: 02/20/2016 11:06 AM EST 4 of 11

PO BOX 60173 PHILADELPHIA, PA 19102 215−592−1513 Email: mroper@aclupa.org ATTORNEY TO BE NOTICED

Movant
THE AMERICAN CIVIL LIBERTIES UNION FOUNDATION

represented by BRIGITTE AMIRI (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
MARY CATHERINE ROPER (See above for address) ATTORNEY TO BE NOTICED

Date Filed 12/04/2012 12/04/2012
12/04/2012 12/04/2012 12/04/2012 12/04/2012
12/05/2012 12/05/2012
12/07/2012

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 350 receipt number 073227.), filed by NORMAN LEMAR HAHN, CONESTOGA WOOD SPECIALITIES CORPORATION, NORMAN HAHN, ANTHONY H. HAHN. (Attachments: # 1 Designation Form, # 2 Case Management Track Form)(tj, ) (Entered: 12/04/2012)
Summons 8 Issued; 7 Given to counsel and 1 Forwarded to the U. S. Attorneys Office 12/4/12 as to TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (tj, ) (Entered: 12/04/2012)
DEMAND for Trial by Jury by CONESTOGA WOOD SPECIALITIES CORPORATION, ANTHONY H. HAHN, NORMAN HAHN, NORMAN LEMAR HAHN. (tj, ) (Entered: 12/04/2012)
2 Disclosure Statement Form pursuant to FRCP 7.1 by CONESTOGA WOOD SPECIALITIES CORPORATION.(tj, ) (Entered: 12/04/2012)
3 NOTICE of Appearance by RANDALL LUKE WENGER, CHARLES W. PROCTOR, III on behalf of CONESTOGA WOOD SPECIALITIES CORPORATION, ANTHONY H. HAHN, NORMAN HAHN, NORMAN LEMAR HAHN (tj, ) (Entered: 12/04/2012)
4 ORDER THAT A TELEPHONE CONFERENCE IS SCHEDULED FOR WEDNESDAY, DECEMBER 5, 2012 AT 10:00 AM TO ASSESS THE IMMEDIACY OF THE ALLEGED HARM. COUNSEL FOR PLAINTIFFS SHALL INITIATE THE CONFERENCE CALL PRIOR TO CALLING CHAMBERS. SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 12/4/12. 12/5/12 ENTERED AND COPIES MAILED TO UNREP AND E−MAILED.(ti, ) Modified on 12/6/2012 (ti, ). (Entered: 12/05/2012)
5 Minute Entry for proceedings held before HONORABLE MITCHELL S. GOLDBERG: Telephone Conference held on 12/5/12 (ti, ) (Entered: 12/05/2012)
6 Acceptance of Service by U.S. Attorney Re: accepted summons and complaint for TIMOTHY GEITHNER on 12/5/2012, answer due 2/4/2013; KATHLEEN SEBELIUS on 12/5/2012, answer due 2/4/2013; HILDA SOLIS on 12/5/2012, answer due 2/4/2013; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES on 12/5/2012, answer due 2/4/2013; UNITED STATES DEPARTMENT OF LABOR on 12/5/2012, answer due 2/4/2013; UNITED STATES DEPARTMENT OF THE TREASURY on 12/5/2012, answer due 2/4/2013. (ti, ) (Entered: 12/05/2012)
7 MOTION for Preliminary Injunction filed by CONESTOGA WOOD SPECIALITIES CORPORATION.Motion for Prelminary Injunction.(PROCTOR, CHARLES) (Entered: 12/07/2012)

Case: 5:12-cv-6744 As of: 02/20/2016 11:06 AM EST 5 of 11

12/07/2012 12/07/2012 12/07/2012 12/08/2012 12/08/2012 12/08/2012 12/08/2012 12/08/2012 12/11/2012 12/11/2012
12/12/2012
12/13/2012 12/13/2012 12/13/2012 12/13/2012 12/13/2012 12/13/2012

8 PROPOSED Order RE: MOTION for Preliminary Injunction filed by CONESTOGA WOOD SPECIALITIES CORPORATION. (PROCTOR, CHARLES) Modified on 12/10/2012 (nd, ). (Entered: 12/07/2012)
9 MOTION for Leave to File filed by CONESTOGA WOOD SPECIALITIES CORPORATION..(PROCTOR, CHARLES) (Entered: 12/07/2012)
10 PROPOSED Order re: MOTION for Leave filed by CONESTOGA WOOD SPECIALITIES CORPORATION. (PROCTOR, CHARLES) Modified on 12/10/2012 (nd, ). (Entered: 12/07/2012)
11 CERTIFICATE OF SERVICE by CONESTOGA WOOD SPECIALITIES CORPORATION re 7 MOTION for Preliminary Injunction (PROCTOR, CHARLES) (Entered: 12/08/2012)
12 CERTIFICATE OF SERVICE by CONESTOGA WOOD SPECIALITIES CORPORATION re 9 MOTION for Leave to File (PROCTOR, CHARLES) (Entered: 12/08/2012)
13 CERTIFICATE OF SERVICE by CONESTOGA WOOD SPECIALITIES CORPORATION re 7 MOTION for Preliminary Injunction (PROCTOR, CHARLES) (Entered: 12/08/2012)
14 CERTIFICATE OF SERVICE by CONESTOGA WOOD SPECIALITIES CORPORATION re 9 MOTION for Leave to File (PROCTOR, CHARLES) (Entered: 12/08/2012)
15 BRIEF in Support of MOTION for Preliminary Injunction filed by CONESTOGA WOOD SPECIALITIES CORPORATION, Certificates of Service.(PROCTOR, CHARLES) Modified on 12/10/2012 (nd, ). (Entered: 12/08/2012)
16 Minute Entry for proceedings held before HONORABLE MITCHELL S. GOLDBERG: Telephone Conference held on 12/10/12 (ti, ) (Entered: 12/11/2012)
17 ORDER THAT UPON CONSIDERATION OF PLAINTIFFS' MOTION FOR LEAVE TO FILE BRIEF IN EXCESS OF PAGE LIMIT 9 , IT IS HEREBY ORDERED THAT PLAINTIFFS' MOTION IS GRANTED. SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 12/10/12.12/11/12 ENTERED AND COPIES MAILED TO UNREP AND E−MAILED.(ti, ) (Entered: 12/11/2012)
18 ORDER THAT DEFENDANTS' RESPONSE TO PLAINTIFFS' MOTION IS DUE 12/19/2012, ETC. SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 12/10/12. 12/11/12 ENTERED AND COPIES MAILED TO UNREP AND E−MAILED.(ti, ) (Entered: 12/12/2012)
19 AFFIDAVIT of Service by Amibiko Guice re: served Summons & Complaint upon US Dept of Labor by Personal on 12/07/2012 (PROCTOR, CHARLES) (Entered: 12/13/2012)
20 AFFIDAVIT of Service by Ambiko Guice re: served Summons & Complaint upon Linda Solis by Personal on 12/07/2012 (PROCTOR, CHARLES) (Entered: 12/13/2012)
21 AFFIDAVIT of Service by Ted Metzger re: served Summons & Complaint upon Timothy Geithner by Personal on 12/05/2012 (PROCTOR, CHARLES) (Entered: 12/13/2012)
22 AFFIDAVIT of Service by Ted Metzger re: served Summons & Complaint upon Kathleen Sebelius by Personal on 12/05/2012 (PROCTOR, CHARLES) (Entered: 12/13/2012)
23 AFFIDAVIT of Service by Ted Metzger re: served Summons & Complaint upon US Dept of Health & Human Services by Personal on 12/05/2012 (PROCTOR, CHARLES) (Entered: 12/13/2012)
24 AFFIDAVIT of Service by Ted Metzger re: served Summons & Complaint upon US Dept of the Treasury by Personal on 12/05/2012 (PROCTOR, CHARLES) (Entered: 12/13/2012)

Case: 5:12-cv-6744 As of: 02/20/2016 11:06 AM EST 6 of 11

12/13/2012 12/13/2012 12/14/2012 12/18/2012
12/19/2012 12/19/2012
12/20/2012 12/20/2012 12/20/2012
12/27/2012
12/28/2012

25 AFFIDAVIT of Service by Ted Metzger re: served Summons & Complaint upon Eric H. Holder, Jr. by Personal on 12/05/2012 (PROCTOR, CHARLES) (Entered: 12/13/2012)
26 CERTIFICATE OF SERVICE by CONESTOGA WOOD SPECIALITIES CORPORATION (PROCTOR, CHARLES) (Entered: 12/13/2012)
27 NOTICE: AND NOW, THIS 14TH DAY OF DECEMBER, 2012, A TELEPHONE CONFERENCE REGARDING PLAINTIFFS' REQUEST FOR A PRELIMINARY INJUNCTION IS SCHEDULED FOR 3:00 P.M., TUESDAY, DECEMBER 18, 2012. COUNSEL FOR PLAINTIFFS SHALL INITIATE THE CONFERENCE CALL PRIOR TO CALLING CHAMBERS.(CJL) (Entered: 12/14/2012)
28 NOTICE by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY re 7 MOTION for Preliminary Injunction (Supplemental Authority) (Attachments: # 1 Exhibit : Korte Decision)(BENNETT, MICHELLE) (Entered: 12/18/2012)
29 Minute Entry for proceedings held before HONORABLE MITCHELL S. GOLDBERG: Telephone Conference held on 12/18/12 (ti, ) (Entered: 12/19/2012)
30 RESPONSE in Opposition re 7 MOTION for Preliminary Injunction filed by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Attachments: # 1 Exhibit 1)(BENNETT, MICHELLE) (Entered: 12/19/2012)
31 MOTION to File Amicus Brief filed by THE AMERICAN CIVIL LIBERTIES UNION FOUNDATION, THE AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA.Certificate of Service. (Attachments: # 1 Text of Proposed Order, # 2 proposed brief of amici)(ROPER, MARY) (Entered: 12/20/2012)
32 APPLICATION OF BRIGITTE AMIRI, ESQUIRE TO PRACTICE IN THIS COURT PURSUANT TO LOCAL RULE OF CIVIL PROCEDURE 83.5.2(b), Statement, Certificate of Service (Filing fee $40 receipt number 074279) by THE AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (ti, ) (Entered: 12/20/2012)
33 NOTICE by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY re 7 MOTION for Preliminary Injunction (Second Notice of Supplemental Authority). Certificate of Service. (Attachments: # 1 10th Circuit Order in Hobby Lobby)(BENNETT, MICHELLE) Modified on 12/21/2012 (ahf, ). (Entered: 12/20/2012)
34 NOTICE by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY re 7 MOTION for Preliminary Injunction (Third Notice of Supplemental Authority) (Attachments: # 1 Autocam Decision, # 2 Grote Decision, # 3 Yeps Decision, # 4 American Pulverizer Decision)(BENNETT, MICHELLE) (Entered: 12/27/2012)
35 ORDER THAT DEFENDANTS ARE TEMPORARILY RESTRAINED FROM ENFORCING THE WOMEN'S PREVENTATIVE HEALTHCARE REGULATIONS REGARDING ABORTIFACIENT CONTRACEPTION AND COUNSELING, ENACTED PURSUANT TO 42 U.S.C. 30gg−13(a)(4) AND 77 F.R. 8725−01 (FEB. 15, 2012), AGAINST PLAINTIFFS, THEIR GROUP HEALTH PLAN AND THE GROUP HEALTH INSURANCE COVERAGE PROVIDED IN CONNECTION WITH THAT PLAN, FOR A PERIOD OF FOURTEEN (14) DAYS. IT IS FURTHER ORDERED THAT AN EVIDENTIARY HEARING AND ORAL ARGUMENT ON PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION 7 WILL BE HELD ON 1/4/2013 AT 10:00 AM IN COURTROOM 4B. SIGNED BY HONORABLE BERLE M. SCHILLER ON 12/28/12. 12/28/12 ENTERED AND COPIES E−MAILED.(ti, ) (Entered: 12/28/2012)

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12/31/2012 01/02/2013
01/02/2013 01/02/2013 01/03/2013
01/07/2013 01/07/2013 01/07/2013 01/08/2013 01/09/2013 01/10/2013 01/10/2013
01/11/2013

36 NOTICE by CONESTOGA WOOD SPECIALITIES CORPORATION, ANTHONY H. HAHN, NORMAN HAHN, NORMAN LEMAR HAHN Notice of Supplemental Authority (Attachments: # 1 Exhibit Korte order, # 2 Exhibit Autocam decision, # 3 Exhibit Hobby Lobby writ)(WENGER, RANDALL) (Entered: 12/31/2012)
37 ORDER THAT THE "UNOPPOSED MOTION OF THE AMERICAN CIVIL LIBERTIES UNION FOUNDATION AND THE ACLU OF PENNSYLVANIA FOR LEAVE TO FILE BRIEF AMICI CURIAE REGARDING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION" (DOC. NO. 31) IS GRANTED. THE CLERK OF COURT IS DIRECTED TO DOCKET THE PROPOSED BRIEF ATTACHED THERETO, WHICH HAS BEEN CONSIDERED IN CONNECTION WITH THIS COURT'S DETERMINATION. (DOC. NO. 31, EX. 2). SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 1/2/2013. 1/2/2013 ENTERED AND COPIES E−MAILED. (ems) (Entered: 01/02/2013)
38 AMICUS CURIAE BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION AND THE AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA IN OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION. (ems) (Entered: 01/02/2013)
39 ORDER THAT THE APPLICATION OF BRIGITTE AMIRI, ESQUIRE, TO PRACTICE IN THIS COURT PURSUANT TO LOCAL RULE OF CIVIL PROCEDURE 83.5.2(b) IS GRANTED. SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 1/2/2013. 1/2/2013 ENTERED AND COPIES MAILED AND E−MAILED. (ems) (Entered: 01/02/2013)
40 NOTICE by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY re 7 MOTION for Preliminary Injunction (Fourth Notice of Supplemental Authority) (Attachments: # 1 Autocam Order (on reconsideration), # 2 Sharpe Holdings Decision, # 3 Domino's Farms Decision)(BENNETT, MICHELLE) (Entered: 01/03/2013)
41 Minute Entry for proceedings held before HONORABLE MITCHELL S. GOLDBERG: Oral Argument held on 1/4/2013. Court Reporter: STEPHEN SONNIE. (jmf, ) (Entered: 01/07/2013)
42 TRANSCRIPT of Proceedings held on 12/18/12 before Judge Mitchell S. Goldberg. Court Reporter: Stephen Sonnie. (ti, ) (Entered: 01/08/2013)
43 TRANSCRIPT of Proceedings held on 1/4/13 before Judge Mitchell S. Goldberg. Court Reporter: Stephen Sonnie. (ti, ) (Entered: 01/08/2013)
44 EXHIBITS to MOTION 7 for Preliminary Injunction by CONESTOGA WOOD SPECIALITIES CORPORATION.(ti, ) (Entered: 01/09/2013)
45 MOTION for Leave to File First Amended and Verified Complaint filed by CONESTOGA WOOD SPECIALITIES CORPORATION.Verification. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit, # 3 Exhibit)(PROCTOR, CHARLES) (Entered: 01/09/2013)
46 ORDER THAT UPON CONSIDERATION OF PLAINTIFFS' UNOPPOSED MOTION FOR LEAVE TO FILE FIRST AMENDED AND VERIFIED COMPLAINT 45 , IT IS HEREBY ORDERED THAT THE MOTION IS GRANTED. SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 1/9/13.1/10/13 ENTERED AND COPIES MAILED AND E−MAILED.(ti, ) (Entered: 01/10/2013)
47 NOTICE by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY re 7 MOTION for Preliminary Injunction (Fifth Notice of Supplemental Authority) (Attachments: # 1 Annex Medical Decision, # 2 Grote Denial of Motion for Reconsideration, # 3 Triune Health Group Decision)(BENNETT, MICHELLE) (Entered: 01/10/2013)
48 FIRST AMENDED VERIFIED COMPLAINT with Jury Demand and Certificate of Service against TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS,

Case: 5:12-cv-6744 As of: 02/20/2016 11:06 AM EST 8 of 11

01/11/2013 01/11/2013
01/14/2013 01/14/2013 01/14/2013 01/15/2013 01/16/2013
01/17/2013 01/17/2013 02/08/2013 08/14/2013 08/20/2013

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, filed by NORMAN LEMAR HAHN, CONESTOGA WOOD SPECIALITIES CORPORATION, NORMAN HAHN, ANTHONY H. HAHN, ELIZABETH HAHN, KEVIN HAHN.(ti, ) Modified on 1/11/2013 (ti, ). (Entered: 01/11/2013)
49 MEMORANDUM AND/OR OPINIONSIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 1/11/13. 1/11/13 ENTERED AND COPIES MAILED, E−MAILED.(ti, ) (Entered: 01/11/2013)
50 ORDER THAT UPON CONSIDERATION OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION 7 , THE RESPONSE THERETO, AND THE AMICUS CURIAE BRIEF FILED BY THE AMERICAN CIVIL LIBERTIES UNION AND AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA IN OPPOSITION TO PLAINTIFFS' MOTION 38 , AND FOR THE REASONS STATED IN THIS COURT'S ACCOMPANYING MEMORANDUM OPINION, IT IS HEREBY ORDERED THAT PLAINTIFFS' MOTION IS DENIED. SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 1/11/13. 1/11/13 ENTERED AND COPIES MAILED, E−MAILED.(ti, ) (Entered: 01/11/2013)
51 Minute Entry for proceedings held before HONORABLE MITCHELL S. GOLDBERG: Telephone Status Conference held on 1/14/13. (ti, ) (Entered: 01/14/2013)
52 NOTICE OF APPEAL as to 50 Order (Memorandum and/or Opinion),, by CONESTOGA WOOD SPECIALITIES CORPORATION, ANTHONY H. HAHN, ELIZABETH HAHN, KEVIN HAHN, NORMAN HAHN, NORMAN LEMAR HAHN. Copies to Judge, Clerk USCA, Appeals Clerk and Certificate of Service. (WENGER, RANDALL) Modified on 1/15/2013 (nd). (Entered: 01/14/2013)
53 Clerk's Notice to USCA re 52 Notice of Appeal, : (ti, ) (Entered: 01/15/2013)
54 Joint MOTION to Stay District Court Proceedings Pending Appeal filed by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY..(BENNETT, MICHELLE) (Entered: 01/15/2013)
55 ORDER THAT UPON CONSIDERATION OF THE JOINT MOTION TO STAY DISTRICT COURT PROCEEDINGS PENDING APPEAL 54 , IT IS HEREBY ORDERED THAT THE MOTION IS GRANTED. IT IS FURTHER ORDERED THAT THE CLERK OF COURT MARK THIS ACTION CLOSED FOR STATISTICAL PURPOSES AND PLACE THE MATTER IN THE CIVIL SUSPENSE FILE. SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 1/16/13. 1/16/13 ENTERED AND COPIES E−MAILED.(ti, ) (Entered: 01/16/2013)
USCA Appeal Fees received $ 455 receipt number 075527 re 52 Notice of Appeal, filed by NORMAN HAHN, NORMAN LEMAR HAHN, ANTHONY H. HAHN, KEVIN HAHN, ELIZABETH HAHN, CONESTOGA WOOD SPECIALITIES CORPORATION (ti, ) (Entered: 01/17/2013)
NOTICE of Docketing Record on Appeal from USCA re 52 Notice of Appeal, filed by NORMAN HAHN, NORMAN LEMAR HAHN, ANTHONY H. HAHN, KEVIN HAHN, ELIZABETH HAHN, CONESTOGA WOOD SPECIALITIES CORPORATION. USCA Case Number 13−1144 (ems) (Entered: 01/17/2013)
56 OPINION/ORDER of USCA as to 52 re Expedited Motion for Injunction, etc. (ti, ) (Entered: 02/08/2013)
57 MANDATE of USCA as to 52 that it is ORDERED and ADJUDGED by this Court that the judgment of the District Court entered on January 11, 2013, be and the same hereby is affirmed. All of the above in accordance with the opinion of this Court. Costs taxed against Appellants.(ti, ) (Entered: 08/14/2013)
58 ORDER of USCA as to 52 The foregoing motion is denied. Judge Jordan would have granted the motion to stay the mandate.(ti, ) (Entered: 08/20/2013)

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08/22/2013 07/21/2014
07/28/2014 07/28/2014 07/29/2014 07/30/2014 08/01/2014 08/06/2014
08/06/2014
08/08/2014 08/11/2014
08/12/2014

59 MANDATE of USCA as to 52 that the judgment of the District Court entered on 1/11/2013, be and the same hereby is affirmed. All of the above in accordance with the opinion of this Court. Costs taxed against Appellants. (ti, ) (Entered: 08/22/2013)
60 ORDER THAT A STATUS TELEPHONE CONFERENCE WILL BE HELD ON 8/13/2014 AT 3:00 P.M.. COUNSEL FOR DEFENDANTS SHALL INITIATE THE CONFERENCE CALL WITH PLAINTIFFS' COUNSEL PRIOR TO CALLING CHAMBERS. SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 7/21/2014. 7/21/2014 ENTERED AND COPIES E−MAILED. (ems) (Entered: 07/21/2014)
61 MOTION for Preliminary Injunction Unopposed Motion filed by CONESTOGA WOOD SPECIALITIES CORPORATION.Certificate of Service. (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Service)(PROCTOR, CHARLES) (Entered: 07/28/2014)
62 Amended MOTION for Preliminary Injunction filed by CONESTOGA WOOD SPECIALITIES CORPORATION.Certificate of Service. (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Service)(PROCTOR, CHARLES) (Entered: 07/28/2014)
63 ORDER THAT THE CLERK OF COURT REOPEN AND REMOVE THIS ACTION FROM THE CIVIL SUSPENSE FILE. SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 7/28/14. 7/29/14 ENTERED AND COPIES E−MAILED.(ti, ) (Entered: 07/29/2014)
64 BRIEF IN SUPPORT OF AMENDED MOTION FOR PRELIMINARY INJUNCTION filed by CONESTOGA WOOD SPECIALITIES CORPORATION. CERTIFICATE OF SERVICE. (Attachments: # 1 Certificate of Service)(PROCTOR, CHARLES) Modified on 7/31/2014 (afm, ). (Entered: 07/30/2014)
65 ORDER of USCA as to 52 that The mandate issued on August 22, 2013 is hereby recalled in light of the U.S. Supreme Court's decision vacating the judgment of this Court and remanding the matter for further proceedings. (ti, ) (Entered: 08/04/2014)
66 NOTICE by CONESTOGA WOOD SPECIALITIES CORPORATION, ANTHONY H. HAHN, ELIZABETH HAHN, KEVIN HAHN, NORMAN HAHN, NORMAN LEMAR HAHN Notice of Supplemental Authority in Support of Amended Motion for Preliminary Injunction (Attachments: # 1 Exhibit U.S. Supreme Court Judgment, # 2 Exhibit Third Circuit Order, # 3 Certificate of Service)(PROCTOR, CHARLES) (Entered: 08/06/2014)
67 RESPONSE to Motion re 62 Amended MOTION for Preliminary Injunction (Notice of Non−Opposition) filed by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Attachments: # 1 Text of Proposed Order)(BENNETT, MICHELLE) (Entered: 08/06/2014)
68 ORDER of USCA as to 52 that The foregoing Unopposed Motion by Appellants to Transfer and Remand Appellants' Ability to Request Billable Costs, Fees, and Attorney Hours from this Appeal to the District Court is hereby GRANTED. (ti, ) (Entered: 08/08/2014)
69 APPLICATION OF MATTHEW S. BOWMAN, ESQUIRE, TO PRACTICE IN THIS COURT PURUSANT TO LOCAL RULE OF CIVIL PROCEDURE 83.5.2(b), Statement, Certificate of Service (Filing fee $40 receipt number 105877) by CONESTOGA WOOD SPECIALITIES CORPORATION, ANTHONY H. HAHN, ELIZABETH HAHN, KEVIN HAHN, NORMAN HAHN, NORMAN LEMAR HAHN. (ti, ) (Entered: 08/11/2014)
70 ORDER THAT THE APPLICATION OF MATTHEW S. BOWMAN, ESQUIRE, TO PRACTICE IN THIS COURT PURSUANT TO LOCAL RULE OF CIVIL PROCEDURE 83.5.2(b) IS GRANTED. SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 8/12/14. 8/12/14 ENTERED AND COPIES E−MAILED.(ti, ) (Entered: 08/12/2014)

Case: 5:12-cv-6744 As of: 02/20/2016 11:06 AM EST 10 of 11

08/14/2014 08/14/2014
08/21/2014 09/15/2014
09/15/2014 09/16/2014
09/16/2014 09/26/2014
09/26/2014 09/29/2014 09/30/2014 10/02/2014

71 ORDER THAT A FOLLOW−UP TELEPHONE CONFERENCE WILL BE HELD ON 9/15/2014 AT 3:00 PM. SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 8/14/14. 8/14/14 ENTERED AND COPIES E−MAILED.(ti, ) (Entered: 08/14/2014)
72 ORDER THAT UPON CONSIDERATION OF PLAINTIFFS' AMENDED MOTION FOR PRELIMINARY INJUNCTION 62 , IT IS HEREBY ORDERED THAT DEFENDANTS ARE PRELIMINARILY ENJOINED FORM ENFORCING AGAINST PLAINTIFFS. IT IS FURTHER ORDERED THAT NO BOND IS REQUIRED, ETC. SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 8/14/14. 8/14/14 ENTERED AND COPIES E−MAILED.(ti, ) (Entered: 08/14/2014)
73 Minute Entry for proceedings held before HONORABLE MITCHELL S. GOLDBERG: Telephone Conference held on 8/13/14 (fdc, ) (Entered: 08/21/2014)
74 NOTICE by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY (Defs.' Notice of Consent to Injunction and Judgment) (Attachments: # 1 Text of Proposed Order)(BENNETT, MICHELLE) (Entered: 09/15/2014)
75 Response to notice of Consent by CONESTOGA WOOD SPECIALITIES CORPORATION. (PROCTOR, CHARLES) (Entered: 09/15/2014)
76 ORDER THAT DEFENSE COUNSEL SHALL SUBMIT A BRIEF ON THE DRAFTED PROPOSED LANGUAGE FOR THE PERMANENT INJUNCTION ORDER TO BE ENTERED IN THIS CASE (ATTACHED) ON OR BEFORE SEPTEMBER 26, 2014. PLAINTIFFS' COUNSEL MAY FILE A RESPONSE ON OR BEFORE OCTOBER 6, 2014. SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 9/16/14. 9/16/14 ENTERED AND COPIES E−MAILED.(va, (Entered: 09/16/2014)
77 Minute Entry for proceedings held before HONORABLE MITCHELL S. GOLDBERG: Telephone Status Conference held on 9/15/14. (ti, ) (Entered: 09/17/2014)
78 BRIEF ADDRESSING COURT'S PROPOSED PERMANENT INJUNCTION LANGUAGE by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, CERTIFICATE OF SERVICE re 76 Order, (Defs.' Brief Addressing Court's Proposed Permanent Inj. Language) (BENNETT, MICHELLE) Modified on 9/29/2014 (afm, ). (Entered: 09/26/2014)
79 USCA ORDER THAT THE JUDGMENT OF THE DISTRICT COURT ENTERED ON 1/11/2013, BE AND THE SAME HEREBY AFFIRMED, ETC. (amas) (Entered: 09/29/2014)
81 Certified Copy of Order from UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT. The foregoing Unopposed Motion by Appellants to Transfer and Remand Appellants' Ability to Remand Billable Costs, Fees and Attorney hours from this Appeal to the District Court is granted. (mbh, ) (Entered: 09/30/2014)
80 Appellant's REPLY BRIEF by CONESTOGA WOOD SPECIALITIES CORPORATION. (Attachments: # 1 Text of Proposed Order)(PROCTOR, CHARLES) (Entered: 09/30/2014)
82 ORDER THAT UPON CONSIDERATION OF DEFENDANTS' NOTICE OF CONSENT TO INJUNCTION AND JUDGMENT 74 , IT IS HEREBY ORDERED THAT DEFENDANTS ARE PERMANENTLY ENJOINED FROM ENFORCING FROM ENFORCING AGAINST PLAINTIFFS, THEIR GROUP HEALTH PLAN, AND THE GROUP HEALTH INSURANCE COVERAGE PROVIDED IN CONNECTION WITH THAT PLAN, THE STATUE AND REGULATIONS THAT REQUIRE PLAINTIFFS TO PROVIDE THEIR EMPLOYEES COVERAGE FOR "ALL FOOD AND DRUG ADMINISTRATION APPROVED CONTRACEPTIVE METHODS, STERILIZATION PROCEDURES, AND PATIENT EDUCATION AND COUNSELING FOR ALL WOMEN WITH REPRODUCTIVE CAPACITY."

Case: 5:12-cv-6744 As of: 02/20/2016 11:06 AM EST 11 of 11

10/08/2014 10/09/2014
11/20/2014 11/21/2014 01/23/2015

IT IS FURTHER ORDERED THAT THE CLERK OF COURT SHALL MARK THIS CASE CLOSED. SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 10/2/14. 10/3/14 ENTERED AND COPIES E−MAILED.(ti, ) (Entered: 10/03/2014)
83 Joint MOTION for Judgment AND SET ATTORNEY FEES PETITION DEADLINE filed by CONESTOGA WOOD SPECIALITIES CORPORATION.cert of service. (Attachments: # 1 Text of Proposed Order)(PROCTOR, CHARLES) (Entered: 10/08/2014)
84 ORDER THAT THE PARTIES JOINT MOTION TO ENTER JUDGMENT AND SET ATTORNEYS' FEES PETITION DEADLINE 83 IS GRANTED; JUDGMENT IS ENTERED IN FAVOR OF PLAINTIFFS AND AGAINST DEFENDANTS ON PLAINTIFFS' CLAIM UNDER THE RELIGIOUS FREEDOM RESTORATION ACT, 42 U.S.C. 2000bb et seq; AND ANY PETITION FOR COSTS OR ATTORNEYS' FEES FROM PLAINTIFFS SHALL BE SUBMITTED ON OR BEFORE 11/24/2014. SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 10/8/14.10/9/14 ENTERED AND COPIES E−MAILED.(ti, ) (Entered: 10/09/2014)
85 Joint MOTION for Extension of Time to File Attorney Fees Petition filed by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY.Attorney Fees Petition.(BENNETT, MICHELLE) (Entered: 11/20/2014)
86 ORDER THAT THE MOTION TO EXTEND ATTORNEY FEES PETITION DEADLINE (DOC. NO. 85) IS GRANTED. PLAINTIFFS SHALL SUBMIT A PETITION FOR ATTORNEYS' FEES OR COSTS ON OR BEFORE 1/23/2015. SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 11/21/2014.11/21/2014 ENTERED AND COPIES E−MAILED.(jmg, ) (Entered: 11/21/2014)
87 NOTICE by CONESTOGA WOOD SPECIALITIES CORPORATION, ANTHONY H. HAHN, ELIZABETH HAHN, KEVIN HAHN, NORMAN HAHN, NORMAN LEMAR HAHN of Settlement (WENGER, RANDALL) (Entered: 01/23/2015)

 
 (Slip Opinion)

OCTOBER TERM, 2013

1

Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES

Syllabus
BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL. v. HOBBY LOBBY STORES, INC.,
ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
No. 13–354. Argued March 25, 2014—Decided June 30, 2014*
The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U. S. C. §§2000bb–1(a), (b). As amended by the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), RFRA covers “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” §2000cc–5(7)(A). At issue here are regulations promulgated by the Department of Health and Human Services (HHS) under the Patient Protection and Affordable Care Act of 2010 (ACA), which, as relevant here, requires specified employers’ group health plans to furnish “preventive care and screenings” for women without “any cost sharing requirements,” 42 U. S. C. §300gg–13(a)(4). Congress did not specify what types of preventive care must be covered; it authorized the Health Resources and Services Administration, a component of HHS, to decide. Ibid. Nonexempt employers are generally required to provide coverage for the 20 contraceptive methods approved by the Food and Drug Admin-
—————— * Together with No. 13–356, Conestoga Wood Specialties Corp. et al.
v. Burwell, Secretary of Health and Human Services, et al., on certiorari to the United States Court of Appeals for the Third Circuit.

2

BURWELL v. HOBBY LOBBY STORES, INC.

Syllabus
istration, including the 4 that may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus. Religious employers, such as churches, are exempt from this contraceptive mandate. HHS has also effectively exempted religious nonprofit organizations with religious objections to providing coverage for contraceptive services. Under this accommodation, the insurance issuer must exclude contraceptive coverage from the employer’s plan and provide plan participants with separate payments for contraceptive services without imposing any costsharing requirements on the employer, its insurance plan, or its employee beneficiaries.
In these cases, the owners of three closely held for-profit corporations have sincere Christian beliefs that life begins at conception and that it would violate their religion to facilitate access to contraceptive drugs or devices that operate after that point. In separate actions, they sued HHS and other federal officials and agencies (collectively HHS) under RFRA and the Free Exercise Clause, seeking to enjoin application of the contraceptive mandate insofar as it requires them to provide health coverage for the four objectionable contraceptives. In No. 13–356, the District Court denied the Hahns and their company—Conestoga Wood Specialties—a preliminary injunction. Affirming, the Third Circuit held that a for-profit corporation could not “engage in religious exercise” under RFRA or the First Amendment, and that the mandate imposed no requirements on the Hahns in their personal capacity. In No. 13–354, the Greens, their children, and their companies—Hobby Lobby Stores and Mardel—were also denied a preliminary injunction, but the Tenth Circuit reversed. It held that the Greens’ businesses are “persons” under RFRA, and that the corporations had established a likelihood of success on their RFRA claim because the contraceptive mandate substantially burdened their exercise of religion and HHS had not demonstrated a compelling interest in enforcing the mandate against them; in the alternative, the court held that HHS had not proved that the mandate was the “least restrictive means” of furthering a compelling governmental interest.
Held: As applied to closely held corporations, the HHS regulations imposing the contraceptive mandate violate RFRA. Pp. 16–49. (a) RFRA applies to regulations that govern the activities of closely held for-profit corporations like Conestoga, Hobby Lobby, and Mardel. Pp. 16–31. (1) HHS argues that the companies cannot sue because they are for-profit corporations, and that the owners cannot sue because the regulations apply only to the companies, but that would leave merchants with a difficult choice: give up the right to seek judicial protection of their religious liberty or forgo the benefits of operating as cor-

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

3

Syllabus
porations. RFRA’s text shows that Congress designed the statute to provide very broad protection for religious liberty and did not intend to put merchants to such a choice. It employed the familiar legal fiction of including corporations within RFRA’s definition of “persons,” but the purpose of extending rights to corporations is to protect the rights of people associated with the corporation, including shareholders, officers, and employees. Protecting the free-exercise rights of closely held corporations thus protects the religious liberty of the humans who own and control them. Pp. 16–19.
(2) HHS and the dissent make several unpersuasive arguments. Pp. 19–31.
(i) Nothing in RFRA suggests a congressional intent to depart from the Dictionary Act definition of “person,” which “include[s] corporations, . . . as well as individuals.” 1 U. S. C. §1. The Court has entertained RFRA and free-exercise claims brought by nonprofit corporations. See, e.g., Gonzales v. O Centro Espírita Beneficiente União do Vegetal, 546 U. S. 418. And HHS’s concession that a nonprofit corporation can be a “person” under RFRA effectively dispatches any argument that the term does not reach for-profit corporations; no conceivable definition of “person” includes natural persons and nonprofit corporations, but not for-profit corporations. Pp. 19–20.
(ii) HHS and the dissent nonetheless argue that RFRA does not cover Conestoga, Hobby Lobby, and Mardel because they cannot “exercise . . . religion.” They offer no persuasive explanation for this conclusion. The corporate form alone cannot explain it because RFRA indisputably protects nonprofit corporations. And the profitmaking objective of the corporations cannot explain it because the Court has entertained the free-exercise claims of individuals who were attempting to make a profit as retail merchants. Braunfeld v. Brown, 366 U. S. 599. Business practices compelled or limited by the tenets of a religious doctrine fall comfortably within the understanding of the “exercise of religion” that this Court set out in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 877. Any suggestion that for-profit corporations are incapable of exercising religion because their purpose is simply to make money flies in the face of modern corporate law. States, including those in which the plaintiff corporations were incorporated, authorize corporations to pursue any lawful purpose or business, including the pursuit of profit in conformity with the owners’ religious principles. Pp. 20–25.
(iii) Also flawed is the claim that RFRA offers no protection because it only codified pre-Smith Free Exercise Clause precedents, none of which squarely recognized free-exercise rights for for-profit corporations. First, nothing in RFRA as originally enacted suggested that its definition of “exercise of religion” was meant to be tied to pre-

4

BURWELL v. HOBBY LOBBY STORES, INC.

Syllabus
Smith interpretations of the First Amendment. Second, if RFRA’s original text were not clear enough, the RLUIPA amendment surely dispels any doubt that Congress intended to separate the definition of the phrase from that in First Amendment case law. Third, the preSmith case of Gallagher v. Crown Kosher Super Market of Mass., Inc., 366 U. S. 617, suggests, if anything, that for-profit corporations can exercise religion. Finally, the results would be absurd if RFRA, a law enacted to provide very broad protection for religious liberty, merely restored this Court’s pre-Smith decisions in ossified form and restricted RFRA claims to plaintiffs who fell within a category of plaintiffs whose claims the Court had recognized before Smith. Pp. 25–28.
(3) Finally, HHS contends that Congress could not have wanted RFRA to apply to for-profit corporations because of the difficulty of ascertaining the “beliefs” of large, publicly traded corporations, but HHS has not pointed to any example of a publicly traded corporation asserting RFRA rights, and numerous practical restraints would likely prevent that from occurring. HHS has also provided no evidence that the purported problem of determining the sincerity of an asserted religious belief moved Congress to exclude for-profit corporations from RFRA’s protection. That disputes among the owners of corporations might arise is not a problem unique to this context. State corporate law provides a ready means for resolving any conflicts by, for example, dictating how a corporation can establish its governing structure. Courts will turn to that structure and the underlying state law in resolving disputes. Pp. 29–31.
(b) HHS’s contraceptive mandate substantially burdens the exercise of religion. Pp. 31–38.
(1) It requires the Hahns and Greens to engage in conduct that seriously violates their sincere religious belief that life begins at conception. If they and their companies refuse to provide contraceptive coverage, they face severe economic consequences: about $475 million per year for Hobby Lobby, $33 million per year for Conestoga, and $15 million per year for Mardel. And if they drop coverage altogether, they could face penalties of roughly $26 million for Hobby Lobby, $1.8 million for Conestoga, and $800,000 for Mardel. P. 32.
(2) Amici supporting HHS argue that the $2,000 per-employee penalty is less than the average cost of providing insurance, and therefore that dropping insurance coverage eliminates any substantial burden imposed by the mandate. HHS has never argued this and the Court does not know its position with respect to the argument. But even if the Court reached the argument, it would find it unpersuasive: It ignores the fact that the plaintiffs have religious reasons for providing health-insurance coverage for their employees, and it is far from clear that the net cost to the companies of providing insur-

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Syllabus
ance is more than the cost of dropping their insurance plans and paying the ACA penalty. Pp. 32–35.
(3) HHS argues that the connection between what the objecting parties must do and the end that they find to be morally wrong is too attenuated because it is the employee who will choose the coverage and contraceptive method she uses. But RFRA’s question is whether the mandate imposes a substantial burden on the objecting parties’ ability to conduct business in accordance with their religious beliefs. The belief of the Hahns and Greens implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is immoral for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another. It is not for the Court to say that the religious beliefs of the plaintiffs are mistaken or unreasonable. In fact, this Court considered and rejected a nearly identical argument in Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707. The Court’s “narrow function . . . is to determine” whether the plaintiffs’ asserted religious belief reflects “an honest conviction,” id., at 716, and there is no dispute here that it does. Tilton v. Richardson, 403 U. S. 672, 689; and Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U. S. 236, 248–249, distinguished. Pp. 35–38.
(c) The Court assumes that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is a compelling governmental interest, but the Government has failed to show that the contraceptive mandate is the least restrictive means of furthering that interest. Pp. 38–49.
(1) The Court assumes that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the meaning of RFRA. Pp. 39–40.
(2) The Government has failed to satisfy RFRA’s leastrestrictive-means standard. HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion. The Government could, e.g., assume the cost of providing the four contraceptives to women unable to obtain coverage due to their employers’ religious objections. Or it could extend the accommodation that HHS has already established for religious nonprofit organizations to non-profit employers with religious objections to the contraceptive mandate. That accommodation does not impinge on the plaintiffs’ religious beliefs that providing insurance coverage for the contraceptives at issue here violates their religion and it still serves HHS’s stated interests. Pp. 40–45.
(3) This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage man-

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Syllabus
dates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs. Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice. United States v. Lee, 455 U. S. 252, which upheld the payment of Social Security taxes despite an employer’s religious objection, is not analogous. It turned primarily on the special problems associated with a national system of taxation; and if Lee were a RFRA case, the fundamental point would still be that there is no less restrictive alternative to the categorical requirement to pay taxes. Here, there is an alternative to the contraceptive mandate. Pp. 45–49. No. 13–354, 723 F. 3d 1114, affirmed; No. 13–356, 724 F. 3d 377, reversed and remanded.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined. KENNEDY, J., filed a concurring opinion. GINSBURG, J., filed a dissenting opinion, in which SOTOMAYOR, J., joined, and in which BREYER and KAGAN, JJ., joined as to all but Part III–C–1. BREYER and KAGAN, JJ., filed a dissenting opinion.

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Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 13–354 and 13–356
_________________

SYLVIA BURWELL, SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL., PETITIONERS

13–354

v.

HOBBY LOBBY STORES, INC., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

AND

CONESTOGA WOOD SPECIALTIES CORPORATION

ET AL., PETITIONERS

13–356

v.

SYLVIA BURWELL, SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
[June 30, 2014]

JUSTICE ALITO delivered the opinion of the Court.
We must decide in these cases whether the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, 42 U. S. C. §2000bb et seq., permits the United States Department of Health and Human Services (HHS) to demand that three closely held corporations provide health-insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies’ owners. We hold that the regulations that impose this obligation violate RFRA, which prohibits the

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Opinion of the Court
Federal Government from taking any action that substantially burdens the exercise of religion unless that action constitutes the least restrictive means of serving a compelling government interest.
In holding that the HHS mandate is unlawful, we reject HHS’s argument that the owners of the companies forfeited all RFRA protection when they decided to organize their businesses as corporations rather than sole proprietorships or general partnerships. The plain terms of RFRA make it perfectly clear that Congress did not discriminate in this way against men and women who wish to run their businesses as for-profit corporations in the manner required by their religious beliefs.
Since RFRA applies in these cases, we must decide whether the challenged HHS regulations substantially burden the exercise of religion, and we hold that they do. The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients. If the owners comply with the HHS mandate, they believe they will be facilitating abortions, and if they do not comply, they will pay a very heavy price—as much as $1.3 million per day, or about $475 million per year, in the case of one of the companies. If these consequences do not amount to a substantial burden, it is hard to see what would.
Under RFRA, a Government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and we assume that the HHS regulations satisfy this requirement. But in order for the HHS mandate to be sustained, it must also constitute the least restrictive means of serving that interest, and the mandate plainly fails that test. There are other ways in which Congress or HHS could equally ensure that every woman has cost-free access to the particular contraceptives at issue here and, indeed, to all FDA-approved contraceptives.

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In fact, HHS has already devised and implemented a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage. The employees of these religious nonprofit corporations still have access to insurance coverage without cost sharing for all FDA-approved contraceptives; and according to HHS, this system imposes no net economic burden on the insurance companies that are required to provide or secure the coverage.
Although HHS has made this system available to religious nonprofits that have religious objections to the contraceptive mandate, HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections. We therefore conclude that this system constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty. And under RFRA, that conclusion means that enforcement of the HHS contraceptive mandate against the objecting parties in these cases is unlawful.
As this description of our reasoning shows, our holding is very specific. We do not hold, as the principal dissent alleges, that for-profit corporations and other commercial enterprises can “opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.” Post, at 1 (opinion of GINSBURG, J.). Nor do we hold, as the dissent implies, that such corporations have free rein to take steps that impose “disadvantages . . . on others” or that require “the general public [to] pick up the tab.” Post, at 1–2. And we certainly do not hold or suggest that “RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on . . . thousands of women em-

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Opinion of the Court
ployed by Hobby Lobby.” Post, at 2.1 The effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing.
I A
Congress enacted RFRA in 1993 in order to provide very broad protection for religious liberty. RFRA’s enactment came three years after this Court’s decision in Employ­ ment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), which largely repudiated the method of analyzing free-exercise claims that had been used in cases like Sherbert v. Verner, 374 U. S. 398 (1963), and Wiscon­ sin v. Yoder, 406 U. S. 205 (1972). In determining whether challenged government actions violated the Free Exercise Clause of the First Amendment, those decisions used a balancing test that took into account whether the challenged action imposed a substantial burden on the practice of religion, and if it did, whether it was needed to serve a compelling government interest. Applying this test, the Court held in Sherbert that an employee who was fired for refusing to work on her Sabbath could not be denied unemployment benefits. 374 U. S., at 408–409. And in Yoder, the Court held that Amish children could not be required to comply with a state law demanding that they remain in school until the age of 16 even though their religion required them to focus on uniquely Amish values and beliefs during their formative adolescent years. 406 U. S., at 210–211, 234–236.
In Smith, however, the Court rejected “the balancing
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1 See also post, at 8 (“The exemption sought by Hobby Lobby and Conestoga . . . would deny [their employees] access to contraceptive coverage that the ACA would otherwise secure”)

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test set forth in Sherbert.” 494 U. S., at 883. Smith concerned two members of the Native American Church who were fired for ingesting peyote for sacramental purposes. When they sought unemployment benefits, the State of Oregon rejected their claims on the ground that consumption of peyote was a crime, but the Oregon Supreme Court, applying the Sherbert test, held that the denial of benefits violated the Free Exercise Clause. 494 U. S., at 875.
This Court then reversed, observing that use of the Sherbert test whenever a person objected on religious grounds to the enforcement of a generally applicable law “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.” 494 U. S., at 888. The Court therefore held that, under the First Amendment, “neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest.” City of Boerne v. Flores, 521 U. S. 507, 514 (1997).
Congress responded to Smith by enacting RFRA. “[L]aws [that are] ‘neutral’ toward religion,” Congress found, “may burden religious exercise as surely as laws intended to interfere with religious exercise.” 42 U. S. C. §2000bb(a)(2); see also §2000bb(a)(4). In order to ensure broad protection for religious liberty, RFRA provides that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” §2000bb–1(a).2 If the Government substantially burdens a person’s exercise of religion, under the Act that person is entitled to an exemption from the rule unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling govern-
——————
2 The Act defines “government” to include any “department” or “agency” of the United States. §2000bb–2(1).

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Opinion of the Court
mental interest.” §2000bb–1(b).3 As enacted in 1993, RFRA applied to both the Federal
Government and the States, but the constitutional authority invoked for regulating federal and state agencies differed. As applied to a federal agency, RFRA is based on the enumerated power that supports the particular agency’s work,4 but in attempting to regulate the States and their subdivisions, Congress relied on its power under Section 5 of the Fourteenth Amendment to enforce the First Amendment. 521 U. S., at 516–517. In City of Boerne, however, we held that Congress had overstepped its Section 5 authority because “[t]he stringent test RFRA demands” “far exceed[ed] any pattern or practice of unconstitutional conduct under the Free Exercise Clause as interpreted in Smith.” Id., at 533–534. See also id., at 532.
Following our decision in City of Boerne, Congress passed the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat. 803, 42 U. S. C. §2000cc et seq. That statute, enacted under Congress’s Commerce and Spending Clause powers, imposes the same general test as RFRA but on a more limited category of governmental actions. See Cutter v. Wilkinson, 544 U. S. 709, 715–716 (2005). And, what is most relevant for present purposes, RLUIPA amended RFRA’s definition of the “exercise of religion.” See §2000bb–2(4) (importing RLUIPA definition). Before RLUIPA, RFRA’s definition

——————
3 In City of Boerne v. Flores, 521 U. S., 507 (1997), we wrote that RFRA’s “least restrictive means requirement was not used in the preSmith jurisprudence RFRA purported to codify.” Id., at 509. On this understanding of our pre-Smith cases, RFRA did more than merely restore the balancing test used in the Sherbert line of cases; it provided even broader protection for religious liberty than was available under those decisions.
4 See, e.g., Hankins v. Lyght, 441 F. 3d 96, 108 (CA2 2006); Guam v. Guerrero, 290 F. 3d 1210, 1220 (CA9 2002).

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Opinion of the Court
made reference to the First Amendment. See §2000bb– 2(4) (1994 ed.) (defining “exercise of religion” as “the exercise of religion under the First Amendment”). In RLUIPA, in an obvious effort to effect a complete separation from First Amendment case law, Congress deleted the reference to the First Amendment and defined the “exercise of religion” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” §2000cc–5(7)(A). And Congress mandated that this concept “be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” §2000cc– 3(g).5
B
At issue in these cases are HHS regulations promulgated under the Patient Protection and Affordable Care Act of 2010 (ACA), 124 Stat. 119. ACA generally requires employers with 50 or more full-time employees to offer “a group health plan or group health insurance coverage” that provides “minimum essential coverage.” 26 U. S. C. §5000A(f)(2); §§4980H(a), (c)(2). Any covered employer that does not provide such coverage must pay a substantial price. Specifically, if a covered employer provides group health insurance but its plan fails to comply with ACA’s group-health-plan requirements, the employer may be required to pay $100 per day for each affected “individ-
——————
5 The principal dissent appears to contend that this rule of construction should apply only when defining the “exercise of religion” in an RLUIPA case, but not in a RFRA case. See post, at 11, n. 10. That argument is plainly wrong. Under this rule of construction, the phrase “exercise of religion,” as it appears in RLUIPA, must be interpreted broadly, and RFRA states that the same phrase, as used in RFRA, means “religious exercis[e] as defined in [RLUIPA].” 42 U. S. C. §2000bb–2(4). It necessarily follows that the “exercise of religion” under RFRA must be given the same broad meaning that applies under RLUIPA.

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Opinion of the Court
ual.” §§4980D(a)–(b). And if the employer decides to stop providing health insurance altogether and at least one full-time employee enrolls in a health plan and qualifies for a subsidy on one of the government-run ACA exchanges, the employer must pay $2,000 per year for each of its fulltime employees. §§4980H(a), (c)(1).
Unless an exception applies, ACA requires an employer’s group health plan or group-health-insurance coverage to furnish “preventive care and screenings” for women without “any cost sharing requirements.” 42 U. S. C. §300gg–13(a)(4). Congress itself, however, did not specify what types of preventive care must be covered. Instead, Congress authorized the Health Resources and Services Administration (HRSA), a component of HHS, to make that important and sensitive decision. Ibid. The HRSA in turn consulted the Institute of Medicine, a nonprofit group of volunteer advisers, in determining which preventive services to require. See 77 Fed. Reg. 8725–8726 (2012).
In August 2011, based on the Institute’s recommendations, the HRSA promulgated the Women’s Preventive Services Guidelines. See id., at 8725–8726, and n. 1; online at http://hrsa.gov/womensguidelines (all Internet materials as visited June 26, 2014, and available in Clerk of Court’s case file). The Guidelines provide that nonexempt employers are generally required to provide “coverage, without cost sharing” for “[a]ll Food and Drug Administration [(FDA)] approved contraceptive methods, sterilization procedures, and patient education and counseling.” 77 Fed. Reg. 8725 (internal quotation marks omitted). Although many of the required, FDA-approved methods of contraception work by preventing the fertilization of an egg, four of those methods (those specifically at issue in these cases) may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus. See Brief for HHS

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Opinion of the Court
in No. 13–354, pp. 9–10, n. 4;6 FDA, Birth Control: Medicines to Help You.7
HHS also authorized the HRSA to establish exemptions from the contraceptive mandate for “religious employers.” 45 CFR §147.131(a). That category encompasses “churches, their integrated auxiliaries, and conventions or associations of churches,” as well as “the exclusively religious activities of any religious order.” See ibid (citing 26 U. S. C. §§6033(a)(3)(A)(i), (iii)). In its Guidelines, HRSA exempted these organizations from the requirement to cover contraceptive services. See http://hrsa.gov/ womensguidelines.
In addition, HHS has effectively exempted certain religious nonprofit organizations, described under HHS regulations as “eligible organizations,” from the contraceptive mandate. See 45 CFR §147.131(b); 78 Fed. Reg. 39874 (2013). An “eligible organization” means a nonprofit organization that “holds itself out as a religious organization” and “opposes providing coverage for some or all of any contraceptive services required to be covered . . . on account of religious objections.” 45 CFR §147.131(b). To qualify for this accommodation, an employer must certify that it is such an organization. §147.131(b)(4). When a group-health-insurance issuer receives notice that one of its clients has invoked this provision, the issuer must then exclude contraceptive coverage from the employer’s plan
——————
6 We will use “Brief for HHS” to refer to the Brief for Petitioners in No. 13–354 and the Brief for Respondents in No. 13–356. The federal parties are the Departments of HHS, Treasury, and Labor, and the Secretaries of those Departments.
7 Online at http://www.fda.gov/forconsumers/byaudience/forwomen/ freepublications/ucm313215.htm. The owners of the companies involved in these cases and others who believe that life begins at conception regard these four methods as causing abortions, but federal regulations, which define pregnancy as beginning at implantation, see, e.g., 62 Fed. Reg. 8611 (1997); 45 CFR §46.202(f) (2013), do not so classify them.

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Opinion of the Court
and provide separate payments for contraceptive services for plan participants without imposing any cost-sharing requirements on the eligible organization, its insurance plan, or its employee beneficiaries. §147.131(c).8 Although this procedure requires the issuer to bear the cost of these services, HHS has determined that this obligation will not impose any net expense on issuers because its cost will be less than or equal to the cost savings resulting from the services. 78 Fed. Reg. 39877.9
In addition to these exemptions for religious organizations, ACA exempts a great many employers from most of its coverage requirements. Employers providing “grandfathered health plans”—those that existed prior to March 23, 2010, and that have not made specified changes after that date—need not comply with many of the Act’s requirements, including the contraceptive mandate. 42 U. S. C. §§18011(a), (e). And employers with fewer than 50 employees are not required to provide health insurance
——————
8 In the case of self-insured religious organizations entitled to the accommodation, the third-party administrator of the organization must “provide or arrange payments for contraceptive services” for the organization’s employees without imposing any cost-sharing requirements on the eligible organization, its insurance plan, or its employee beneficiaries. 78 Fed. Reg. 39893 (to be codified in 26 CFR §54.9815– 2713A(b)(2)). The regulations establish a mechanism for these thirdparty administrators to be compensated for their expenses by obtaining a reduction in the fee paid by insurers to participate in the federally facilitated exchanges. See 78 Fed. Reg. 39893 (to be codified in 26 CFR §54.9815–2713A (b)(3)). HHS believes that these fee reductions will not materially affect funding of the exchanges because “payments for contraceptive services will represent only a small portion of total [exchange] user fees.” 78 Fed. Reg. 39882.
9 In a separate challenge to this framework for religious nonprofit organizations, the Court recently ordered that, pending appeal, the eligible organizations be permitted to opt out of the contraceptive mandate by providing written notification of their objections to the Secretary of HHS, rather than to their insurance issuers or third-party administrators. See Little Sisters of the Poor v. Sebelius, 571 U. S. ___ (2014).

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Opinion of the Court
at all. 26 U. S. C. §4980H(c)(2). All told, the contraceptive mandate “presently does not
apply to tens of millions of people.” 723 F. 3d 1114, 1143 (CA10 2013). This is attributable, in large part, to grandfathered health plans: Over one-third of the 149 million nonelderly people in America with employer-sponsored health plans were enrolled in grandfathered plans in 2013. Brief for HHS in No. 13–354, at 53; Kaiser Family Foundation & Health Research & Educational Trust, Employer Health Benefits, 2013 Annual Survey 43, 221.10 The count for employees working for firms that do not have to provide insurance at all because they employ fewer than 50 employees is 34 million workers. See The Whitehouse, Health Reform for Small Businesses: The Affordable Care Act Increases Choice and Saving Money for Small Businesses 1.11
II A
Norman and Elizabeth Hahn and their three sons are devout members of the Mennonite Church, a Christian denomination. The Mennonite Church opposes abortion and believes that “[t]he fetus in its earliest stages . . . shares humanity with those who conceived it.”12
Fifty years ago, Norman Hahn started a wood-working business in his garage, and since then, this company, Conestoga Wood Specialties, has grown and now has 950 employees. Conestoga is organized under Pennsylvania
——————
10 While the Government predicts that this number will decline over time, the total number of Americans working for employers to whom the contraceptive mandate does not apply is still substantial, and there is no legal requirement that grandfathered plans ever be phased out.
11 Online at http : / / www . whitehouse . gov / files / documents / health _ reform_for_small_businesses.pdf.
12 Mennonite Church USA, Statement on Abortion, online at http://www.mennoniteusa.org /resource-center/resources/statements-andresolutions/statement-on-abortion/.

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Opinion of the Court
law as a for-profit corporation. The Hahns exercise sole ownership of the closely held business; they control its board of directors and hold all of its voting shares. One of the Hahn sons serves as the president and CEO.
The Hahns believe that they are required to run their business “in accordance with their religious beliefs and moral principles.” 917 F. Supp. 2d 394, 402 (ED Pa. 2013). To that end, the company’s mission, as they see it, is to “operate in a professional environment founded upon the highest ethical, moral, and Christian principles.” Ibid. (internal quotation marks omitted). The company’s “Vision and Values Statements” affirms that Conestoga endeavors to “ensur[e] a reasonable profit in [a] manner that reflects [the Hahns’] Christian heritage.” App. in No. 13–356, p. 94 (complaint).
As explained in Conestoga’s board-adopted “Statement on the Sanctity of Human Life,” the Hahns believe that “human life begins at conception.” 724 F. 3d 377, 382, and n. 5 (CA3 2013) (internal quotation marks omitted). It is therefore “against [their] moral conviction to be involved in the termination of human life” after conception, which they believe is a “sin against God to which they are held accountable.” Ibid. (internal quotation marks omitted). The Hahns have accordingly excluded from the grouphealth-insurance plan they offer to their employees certain contraceptive methods that they consider to be abortifacients. Id., at 382.
The Hahns and Conestoga sued HHS and other federal officials and agencies under RFRA and the Free Exercise Clause of the First Amendment, seeking to enjoin application of ACA’s contraceptive mandate insofar as it requires them to provide health-insurance coverage for four FDAapproved contraceptives that may operate after the fertilization of an egg.13 These include two forms of emergency
——————
13 The Hahns and Conestoga also claimed that the contraceptive

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Opinion of the Court
contraception commonly called “morning after” pills and two types of intrauterine devices.14
In opposing the requirement to provide coverage for the contraceptives to which they object, the Hahns argued that “it is immoral and sinful for [them] to intentionally participate in, pay for, facilitate, or otherwise support these drugs.” Ibid. The District Court denied a preliminary injunction, see 917 F. Supp. 2d, at 419, and the Third Circuit affirmed in a divided opinion, holding that “forprofit, secular corporations cannot engage in religious exercise” within the meaning of RFRA or the First Amendment. 724 F. 3d, at 381. The Third Circuit also rejected the claims brought by the Hahns themselves because it concluded that the HHS “[m]andate does not impose any requirements on the Hahns” in their personal capacity. Id., at 389.
B
David and Barbara Green and their three children are Christians who own and operate two family businesses. Forty-five years ago, David Green started an arts-andcrafts store that has grown into a nationwide chain called Hobby Lobby. There are now 500 Hobby Lobby stores, and the company has more than 13,000 employees. 723 F. 3d, at 1122. Hobby Lobby is organized as a for-profit corporation under Oklahoma law.
One of David’s sons started an affiliated business, Mardel, which operates 35 Christian bookstores and employs close to 400 people. Ibid. Mardel is also organized as a for-profit corporation under Oklahoma law.
Though these two businesses have expanded over the
——————
mandate violates the Fifth Amendment and the Administrative Procedure Act, 5 U. S. C. §553, but those claims are not before us.
14 See, e.g., WebMD Health News, New Morning-After Pill Ella Wins FDA Approval, online at http://www.webmd.com/sex/birth-control/news/ 20100813/new-morning-after-pill-ella-wins-fda-approval.

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Opinion of the Court
years, they remain closely held, and David, Barbara, and their children retain exclusive control of both companies. Ibid. David serves as the CEO of Hobby Lobby, and his three children serve as the president, vice president, and vice CEO. See Brief for Respondents in No. 13–354, p. 8.15
Hobby Lobby’s statement of purpose commits the Greens to “[h]onoring the Lord in all [they] do by operating the company in a manner consistent with Biblical principles.” App. in No. 13–354, pp. 134–135 (complaint). Each family member has signed a pledge to run the businesses in accordance with the family’s religious beliefs and to use the family assets to support Christian ministries. 723 F. 3d, at 1122. In accordance with those commitments, Hobby Lobby and Mardel stores close on Sundays, even though the Greens calculate that they lose millions in sales annually by doing so. Id., at 1122; App. in No. 13– 354, at 136–137. The businesses refuse to engage in profitable transactions that facilitate or promote alcohol use; they contribute profits to Christian missionaries and ministries; and they buy hundreds of full-page newspaper ads inviting people to “know Jesus as Lord and Savior.” Ibid. (internal quotation marks omitted).
Like the Hahns, the Greens believe that life begins at conception and that it would violate their religion to facilitate access to contraceptive drugs or devices that operate after that point. 723 F. 3d, at 1122. They specifically object to the same four contraceptive methods as the Hahns and, like the Hahns, they have no objection to the other 16 FDA-approved methods of birth control. Id., at 1125. Although their group-health-insurance plan predates the enactment of ACA, it is not a grandfathered plan

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15 The Greens operate Hobby Lobby and Mardel through a management trust, of which each member of the family serves as trustee. 723 F. 3d 1114, 1122 (CA10 2013). The family provided that the trust would also be governed according to their religious principles. Ibid.

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because Hobby Lobby elected not to retain grandfathered status before the contraceptive mandate was proposed. Id., at 1124.
The Greens, Hobby Lobby, and Mardel sued HHS and other federal agencies and officials to challenge the contraceptive mandate under RFRA and the Free Exercise Clause.16 The District Court denied a preliminary injunction, see 870 F. Supp. 2d 1278 (WD Okla. 2012), and the plaintiffs appealed, moving for initial en banc consideration. The Tenth Circuit granted that motion and reversed in a divided opinion. Contrary to the conclusion of the Third Circuit, the Tenth Circuit held that the Greens’ two for-profit businesses are “persons” within the meaning of RFRA and therefore may bring suit under that law.
The court then held that the corporations had established a likelihood of success on their RFRA claim. 723 F. 3d, at 1140–1147. The court concluded that the contraceptive mandate substantially burdened the exercise of religion by requiring the companies to choose between “compromis[ing] their religious beliefs” and paying a heavy fee—either “close to $475 million more in taxes every year” if they simply refused to provide coverage for the contraceptives at issue, or “roughly $26 million” annually if they “drop[ped] health-insurance benefits for all employees.” Id., at 1141.
The court next held that HHS had failed to demonstrate a compelling interest in enforcing the mandate against the Greens’ businesses and, in the alternative, that HHS had failed to prove that enforcement of the mandate was the “least restrictive means” of furthering the Government’s asserted interests. Id., at 1143–1144 (emphasis deleted; internal quotation marks omitted). After concluding that the companies had “demonstrated irreparable harm,” the
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16 They also raised a claim under the Administrative Procedure Act, 5 U. S. C. §553.

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court reversed and remanded for the District Court to consider the remaining factors of the preliminaryinjunction test. Id., at 1147.17
We granted certiorari. 571 U. S. ___ (2013).
III A
RFRA prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U. S. C. §§2000bb–1(a), (b) (emphasis added). The first question that we must address is whether this provision applies to regulations that govern the activities of for-profit corporations like Hobby Lobby, Conestoga, and Mardel.
HHS contends that neither these companies nor their owners can even be heard under RFRA. According to HHS, the companies cannot sue because they seek to make a profit for their owners, and the owners cannot be heard because the regulations, at least as a formal matter, apply only to the companies and not to the owners as individuals. HHS’s argument would have dramatic consequences.
Consider this Court’s decision in Braunfeld v. Brown,

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17 Given its RFRA ruling, the court declined to address the plaintiffs’ free-exercise claim or the question whether the Greens could bring RFRA claims as individual owners of Hobby Lobby and Mardel. Four judges, however, concluded that the Greens could do so, see 723 F. 3d, at 1156 (Gorsuch, J., concurring); id., at 1184 (Matheson, J., concurring in part and dissenting in part), and three of those judges would have granted plaintiffs a preliminary injunction, see id., at 1156 (Gorsuch, J., concurring).

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366 U. S. 599 (1961) (plurality opinion). In that case, five Orthodox Jewish merchants who ran small retail businesses in Philadelphia challenged a Pennsylvania Sunday closing law as a violation of the Free Exercise Clause. Because of their faith, these merchants closed their shops on Saturday, and they argued that requiring them to remain shut on Sunday threatened them with financial ruin. The Court entertained their claim (although it ruled against them on the merits), and if a similar claim were raised today under RFRA against a jurisdiction still subject to the Act (for example, the District of Columbia, see 42 U. S. C. §2000bb–2(2)), the merchants would be entitled to be heard. According to HHS, however, if these merchants chose to incorporate their businesses—without in any way changing the size or nature of their businesses—they would forfeit all RFRA (and free-exercise) rights. HHS would put these merchants to a difficult choice: either give up the right to seek judicial protection of their religious liberty or forgo the benefits, available to their competitors, of operating as corporations.
As we have seen, RFRA was designed to provide very broad protection for religious liberty. By enacting RFRA, Congress went far beyond what this Court has held is constitutionally required.18 Is there any reason to think that the Congress that enacted such sweeping protection put small-business owners to the choice that HHS suggests? An examination of RFRA’s text, to which we turn
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18 As discussed, n. 3, supra, in City of Boerne we stated that RFRA, by imposing a least-restrictive-means test, went beyond what was required by our pre-Smith decisions. Although the author of the principal dissent joined the Court’s opinion in City of Boerne, she now claims that the statement was incorrect. Post, at 12. For present purposes, it is unnecessary to adjudicate this dispute. Even if RFRA simply restored the status quo ante, there is no reason to believe, as HHS and the dissent seem to suggest, that the law was meant to be limited to situations that fall squarely within the holdings of pre-Smith cases. See infra, at 25–28.

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in the next part of this opinion, reveals that Congress did no such thing.
As we will show, Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA’s definition of “persons.” But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people. For example, extending Fourth Amendment protection to corporations protects the privacy interests of employees and others associated with the company. Protecting corporations from government seizure of their property without just compensation protects all those who have a stake in the corporations’ financial well-being. And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies.
In holding that Conestoga, as a “secular, for-profit corporation,” lacks RFRA protection, the Third Circuit wrote as follows:
“General business corporations do not, separate and apart from the actions or belief systems of their indi­ vidual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors.” 724 F. 3d, at 385 (emphasis added).
All of this is true—but quite beside the point. Corpora-

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Opinion of the Court
tions, “separate and apart from” the human beings who own, run, and are employed by them, cannot do anything at all.
B 1
As we noted above, RFRA applies to “a person’s” exercise of religion, 42 U. S. C. §§2000bb–1(a), (b), and RFRA itself does not define the term “person.” We therefore look to the Dictionary Act, which we must consult “[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise.” 1 U. S. C. §1.
Under the Dictionary Act, “the wor[d] ‘person’ . . . include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” Ibid.; see FCC v. AT&T Inc., 562 U. S. ___, ___ (2011) (slip op., at 6) (“We have no doubt that ‘person,’ in a legal setting, often refers to artificial entities. The Dictionary Act makes that clear”). Thus, unless there is something about the RFRA context that “indicates otherwise,” the Dictionary Act provides a quick, clear, and affirmative answer to the question whether the companies involved in these cases may be heard.
We see nothing in RFRA that suggests a congressional intent to depart from the Dictionary Act definition, and HHS makes little effort to argue otherwise. We have entertained RFRA and free-exercise claims brought by nonprofit corporations, see Gonzales v. O Centro Espírita Beneficiente União do Vegetal, 546 U. S. 418 (2006) (RFRA); Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. ___ (2012) (Free Exercise); Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993) (Free Exercise), and HHS concedes that a nonprofit corporation can be a “person” within the meaning of RFRA. See Brief for HHS in No. 13–354, at 17;

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Opinion of the Court
Reply Brief in No. 13–354, at 7–8.19 This concession effectively dispatches any argument
that the term “person” as used in RFRA does not reach the closely held corporations involved in these cases. No known understanding of the term “person” includes some but not all corporations. The term “person” sometimes encompasses artificial persons (as the Dictionary Act instructs), and it sometimes is limited to natural persons. But no conceivable definition of the term includes natural persons and nonprofit corporations, but not for-profit corporations.20 Cf. Clark v. Martinez, 543 U. S. 371, 378 (2005) (“To give th[e] same words a different meaning for each category would be to invent a statute rather than interpret one”).
2
The principal argument advanced by HHS and the principal dissent regarding RFRA protection for Hobby Lobby, Conestoga, and Mardel focuses not on the statutory term “person,” but on the phrase “exercise of religion.” According to HHS and the dissent, these corporations are not protected by RFRA because they cannot exercise religion. Neither HHS nor the dissent, however, provides any persuasive explanation for this conclusion.
Is it because of the corporate form? The corporate form alone cannot provide the explanation because, as we have pointed out, HHS concedes that nonprofit corporations can
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19 Cf. Brief for Federal Petitioners in O Centro, O. T. 2004, No. 04– 1084, p. II (stating that the organizational respondent was “a New Mexico Corporation”); Brief for Federal Respondent in Hosanna-Tabor, O. T. 2011, No. 10–553, p. 3 (stating that the petitioner was an “ecclesiastical corporation”).
20 Not only does the Government concede that the term “persons” in RFRA includes nonprofit corporations, it goes further and appears to concede that the term might also encompass other artificial entities, namely, general partnerships and unincorporated associations. See Brief for HHS in No. 13–354, at 28, 40.

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Opinion of the Court
be protected by RFRA. The dissent suggests that nonprofit corporations are special because furthering their religious “autonomy . . . often furthers individual religious freedom as well.” Post, at 15 (quoting Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327, 342 (1987) (Brennan, J., concurring in judgment)). But this principle applies equally to for-profit corporations: Furthering their religious freedom also “furthers individual religious freedom.” In these cases, for example, allowing Hobby Lobby, Conestoga, and Mardel to assert RFRA claims protects the religious liberty of the Greens and the Hahns.21
If the corporate form is not enough, what about the profit-making objective? In Braunfeld, 366 U. S. 599, we entertained the free-exercise claims of individuals who were attempting to make a profit as retail merchants, and the Court never even hinted that this objective precluded their claims. As the Court explained in a later case, the “exercise of religion” involves “not only belief and profession but the performance of (or abstention from) physical acts” that are “engaged in for religious reasons.” Smith, 494 U. S., at 877. Business practices that are compelled or limited by the tenets of a religious doctrine fall comfortably within that definition. Thus, a law that “operates so as to make the practice of . . . religious beliefs more expensive” in the context of business activities imposes a burden on the exercise of religion. Braunfeld, supra, at 605; see United States v. Lee, 455 U. S. 252, 257 (1982) (recognizing that “compulsory participation in the social security system interferes with [Amish employers’] free exercise
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21 Although the principal dissent seems to think that Justice Brennan’s statement in Amos provides a ground for holding that for-profit corporations may not assert free-exercise claims, that was not Justice Brennan’s view. See Gallagher v. Crown Kosher Super Market of Mass., Inc., 366 U. S. 617, 642 (1961) (dissenting opinion); infra, at 26– 27.

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Opinion of the Court
rights”). If, as Braunfeld recognized, a sole proprietorship that
seeks to make a profit may assert a free-exercise claim,22 why can’t Hobby Lobby, Conestoga, and Mardel do the same?
Some lower court judges have suggested that RFRA does not protect for-profit corporations because the purpose of such corporations is simply to make money.23 This
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22 It is revealing that the principal dissent cannot even bring itself to acknowledge that Braunfeld was correct in entertaining the merchants’ claims. See post, at 19 (dismissing the relevance of Braunfeld in part because “[t]he free exercise claim asserted there was promptly rejected on the merits”).
23 See, e.g., 724 F. 3d, at 385 (“We do not see how a for-profit, ‘artificial being,’ . . . that was created to make money” could exercise religion); Grote v. Sebelius, 708 F. 3d 850, 857 (CA7 2013) (Rovner, J. dissenting) (“So far as it appears, the mission of Grote Industries, like that of any other for-profit, secular business, is to make money in the commercial sphere”); Autocam Corp. v. Sebelius, 730 F. 3d 618, 626 (CA7 2013) (“Congress did not intend to include corporations primarily organized for secular, profit-seeking purposes as ‘persons’ under RFRA”); see also 723 F. 3d, at 1171–1172 (Briscoe, C. J., dissenting) (“[T]he specific purpose for which [a corporation] is created matters greatly to how it will be categorized and treated under the law” and “it is undisputed that Hobby Lobby and Mardel are for-profit corporations focused on selling merchandise to consumers”).
The principal dissent makes a similar point, stating that “[f]or-profit corporations are different from religious nonprofits in that they use labor to make a profit, rather than to perpetuate the religious values shared by a community of believers.” Post, at 18–19 (internal quotation marks omitted). The first half of this statement is a tautology; forprofit corporations do indeed differ from nonprofits insofar as they seek to make a profit for their owners, but the second part is factually untrue. As the activities of the for-profit corporations involved in these cases show, some for-profit corporations do seek “to perpetuate the religious values shared,” in these cases, by their owners. Conestoga’s Vision and Values Statement declares that the company is dedicated to operating “in [a] manner that reflects our Christian heritage and the highest ethical and moral principles of business.” App. in No. 13–356, p. 94. Similarly, Hobby Lobby’s statement of purpose proclaims that the company “is committed to . . . Honoring the Lord in all we do by

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argument flies in the face of modern corporate law. “Each American jurisdiction today either expressly or by implication authorizes corporations to be formed under its general corporation act for any lawful purpose or business.” 1 J. Cox & T. Hazen, Treatise of the Law of Corporations §4:1, p. 224 (3d ed. 2010) (emphasis added); see 1A W. Fletcher, Cyclopedia of the Law of Corporations §102 (rev. ed. 2010). While it is certainly true that a central objective of forprofit corporations is to make money, modern corporate law does not require for-profit corporations to pursue profit at the expense of everything else, and many do not do so. For-profit corporations, with ownership approval, support a wide variety of charitable causes, and it is not at all uncommon for such corporations to further humanitarian and other altruistic objectives. Many examples come readily to mind. So long as its owners agree, a for-profit corporation may take costly pollution-control and energyconservation measures that go beyond what the law requires. A for-profit corporation that operates facilities in other countries may exceed the requirements of local law regarding working conditions and benefits. If for-profit corporations may pursue such worthy objectives, there is no apparent reason why they may not further religious objectives as well.
HHS would draw a sharp line between nonprofit corpo-
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operating . . . in a manner consistent with Biblical principles.” App. in No. 13–354, p. 135. The dissent also believes that history is not on our side because even Blackstone recognized the distinction between “ecclesiastical and lay” corporations. Post, at 18. What Blackstone illustrates, however, is that dating back to 1765, there was no sharp divide among corporations in their capacity to exercise religion; Blackstone recognized that even what he termed “lay” corporations might serve “the promotion of piety.” 1 W. Blackstone, Commentaries on the Law of England 458–459 (1765). And whatever may have been the case at the time of Blackstone, modern corporate law (and the law of the States in which these three companies are incorporated) allows forprofit corporations to “perpetuat[e] religious values.”

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Opinion of the Court
rations (which, HHS concedes, are protected by RFRA) and for-profit corporations (which HHS would leave unprotected), but the actual picture is less clear-cut. Not all corporations that decline to organize as nonprofits do so in order to maximize profit. For example, organizations with religious and charitable aims might organize as for-profit corporations because of the potential advantages of that corporate form, such as the freedom to participate in lobbying for legislation or campaigning for political candidates who promote their religious or charitable goals.24 In fact, recognizing the inherent compatibility between establishing a for-profit corporation and pursuing nonprofit goals, States have increasingly adopted laws formally recognizing hybrid corporate forms. Over half of the States, for instance, now recognize the “benefit corporation,” a dual-purpose entity that seeks to achieve both a benefit for the public and a profit for its owners.25
In any event, the objectives that may properly be pur-

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24 See, e.g., M. Sanders, Joint Ventures Involving Tax-Exempt Organizations 555 (4th ed. 2013) (describing Google.org, which “advance[s] its charitable goals” while operating as a for-profit corporation to be able to “invest in for-profit endeavors, lobby for policies that support its philanthropic goals, and tap Google’s innovative technology and workforce” (internal quotation marks and alterations omitted)); cf. 26 CFR §1.501(c)(3)–1(c)(3).
25 See Benefit Corp Information Center, online at http:// www.benefitcorp.net/state-by-state-legislative-status; e.g., Va. Code Ann. §§13.1–787, 13.1–626, 13.1–782 (Lexis 2011) (“A benefit corporation shall have as one of its purposes the purpose of creating a general public benefit,” and “may identify one or more specific public benefits that it is the purpose of the benefit corporation to create. . . . This purpose is in addition to [the purpose of engaging in any lawful business].” “ ‘Specific public benefit’ means a benefit that serves one or more public welfare, religious, charitable, scientific, literary, or educational purposes, or other purpose or benefit beyond the strict interest of the shareholders of the benefit corporation . . . .”); S. C. Code Ann. §§33–38–300 (2012 Cum. Supp.), 33–3–101 (2006), 33–38–130 (2012 Cum. Supp.) (similar).

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sued by the companies in these cases are governed by the laws of the States in which they were incorporated— Pennsylvania and Oklahoma—and the laws of those States permit for-profit corporations to pursue “any lawful purpose” or “act,” including the pursuit of profit in conformity with the owners’ religious principles. 15 Pa. Cons. Stat. §1301 (2001) (“Corporations may be incorporated under this subpart for any lawful purpose or purposes”); Okla. Stat., Tit. 18, §§1002, 1005 (West 2012) (“[E]very corporation, whether profit or not for profit” may “be incorporated or organized . . . to conduct or promote any lawful business or purposes”); see also §1006(A)(3); Brief for State of Oklahoma as Amicus Curiae in No. 13–354.
3
HHS and the principal dissent make one additional argument in an effort to show that a for-profit corporation cannot engage in the “exercise of religion” within the meaning of RFRA: HHS argues that RFRA did no more than codify this Court’s pre-Smith Free Exercise Clause precedents, and because none of those cases squarely held that a for-profit corporation has free-exercise rights, RFRA does not confer such protection. This argument has many flaws.
First, nothing in the text of RFRA as originally enacted suggested that the statutory phrase “exercise of religion under the First Amendment” was meant to be tied to this Court’s pre-Smith interpretation of that Amendment. When first enacted, RFRA defined the “exercise of religion” to mean “the exercise of religion under the First Amendment”—not the exercise of religion as recognized only by then-existing Supreme Court precedents. 42 U. S. C. §2000bb–2(4) (1994 ed.). When Congress wants to link the meaning of a statutory provision to a body of this Court’s case law, it knows how to do so. See, e.g., Antiterrorism and Effective Death Penalty Act of 1996, 28

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Opinion of the Court
U. S. C. §2254(d)(1) (authorizing habeas relief from a state-court decision that “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”).
Second, if the original text of RFRA was not clear enough on this point—and we think it was—the amendment of RFRA through RLUIPA surely dispels any doubt. That amendment deleted the prior reference to the First Amendment, see 42 U. S. C. §2000bb–2(4) (2000 ed.) (incorporating §2000cc–5), and neither HHS nor the principal dissent can explain why Congress did this if it wanted to tie RFRA coverage tightly to the specific holdings of our pre-Smith free-exercise cases. Moreover, as discussed, the amendment went further, providing that the exercise of religion “shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” §2000cc– 3(g). It is simply not possible to read these provisions as restricting the concept of the “exercise of religion” to those practices specifically addressed in our pre-Smith decisions.
Third, the one pre-Smith case involving the free-exercise rights of a for-profit corporation suggests, if anything, that for-profit corporations possess such rights. In Gallagher v. Crown Kosher Super Market of Mass., Inc., 366 U. S. 617 (1961), the Massachusetts Sunday closing law was challenged by a kosher market that was organized as a forprofit corporation, by customers of the market, and by a rabbi. The Commonwealth argued that the corporation lacked “standing” to assert a free-exercise claim,26 but not one member of the Court expressed agreement with that

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26 See Brief for Appellants in Gallagher, O. T. 1960 No. 11, pp. 16, 28– 31 (arguing that corporation “has no ‘religious belief’ or ‘religious liberty,’ and had no standing in court to assert that its free exercise of religion was impaired”).

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argument. The plurality opinion for four Justices rejected the First Amendment claim on the merits based on the reasoning in Braunfeld, and reserved decision on the question whether the corporation had “standing” to raise the claim. See 366 U. S., at 631. The three dissenters, Justices Douglas, Brennan, and Stewart, found the law unconstitutional as applied to the corporation and the other challengers and thus implicitly recognized their right to assert a free-exercise claim. See id., at 642 (Brennan, J., joined by Stewart, J., dissenting); McGowan v. Maryland, 366 U. S. 420, 578–579 (1961) (Douglas, J., dissenting as to related cases including Gallagher). Finally, Justice Frankfurter’s opinion, which was joined by Justice Harlan, upheld the Massachusetts law on the merits but did not question or reserve decision on the issue of the right of the corporation or any of the other challengers to be heard. See McGowan, 366 U. S., at 521– 522. It is quite a stretch to argue that RFRA, a law enacted to provide very broad protection for religious liberty, left for-profit corporations unprotected simply because in Gallagher—the only pre-Smith case in which the issue was raised—a majority of the Justices did not find it necessary to decide whether the kosher market’s corporate status barred it from raising a free-exercise claim.
Finally, the results would be absurd if RFRA merely restored this Court’s pre-Smith decisions in ossified form and did not allow a plaintiff to raise a RFRA claim unless that plaintiff fell within a category of plaintiffs one of whom had brought a free-exercise claim that this Court entertained in the years before Smith. For example, we are not aware of any pre-Smith case in which this Court entertained a free-exercise claim brought by a resident noncitizen. Are such persons also beyond RFRA’s protective reach simply because the Court never addressed their rights before Smith?
Presumably in recognition of the weakness of this ar-

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Opinion of the Court
gument, both HHS and the principal dissent fall back on the broader contention that the Nation lacks a tradition of exempting for-profit corporations from generally applicable laws. By contrast, HHS contends, statutes like Title VII, 42 U. S. C. §2000e–19(A), expressly exempt churches and other nonprofit religious institutions but not for-profit corporations. See Brief for HHS in No. 13–356, p. 26. In making this argument, however, HHS did not call to our attention the fact that some federal statutes do exempt categories of entities that include for-profit corporations from laws that would otherwise require these entities to engage in activities to which they object on grounds of conscience. See, e.g., 42 U. S. C. §300a–7(b)(2); §238n(a).27 If Title VII and similar laws show anything, it is that Congress speaks with specificity when it intends a religious accommodation not to extend to for-profit corporations.

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27 The principal dissent points out that “the exemption codified in §238n(a) was not enacted until three years after RFRA’s passage.” Post, at 16, n. 15. The dissent takes this to mean that RFRA did not, in fact, “ope[n] all statutory schemes to religion-based challenges by forprofit corporations” because if it had “there would be no need for a statute-specific, post-RFRA exemption of this sort.” Ibid.
This argument fails to recognize that the protection provided by §238n(a) differs significantly from the protection provided by RFRA. Section 238n(a) flatly prohibits discrimination against a covered healthcare facility for refusing to engage in certain activities related to abortion. If a covered healthcare facility challenged such discrimination under RFRA, by contrast, the discrimination would be unlawful only if a court concluded, among other things, that there was a less restrictive means of achieving any compelling government interest.
In addition, the dissent’s argument proves too much. Section 238n(a) applies evenly to “any health care entity”—whether it is a religious nonprofit entity or a for-profit entity. There is no dispute that RFRA protects religious nonprofit corporations, so if §238n(a) were redundant as applied to for-profit corporations, it would be equally redundant as applied to nonprofits.

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4
Finally, HHS contends that Congress could not have wanted RFRA to apply to for-profit corporations because it is difficult as a practical matter to ascertain the sincere “beliefs” of a corporation. HHS goes so far as to raise the specter of “divisive, polarizing proxy battles over the religious identity of large, publicly traded corporations such as IBM or General Electric.” Brief for HHS in No. 13–356, at 30.
These cases, however, do not involve publicly traded corporations, and it seems unlikely that the sort of corporate giants to which HHS refers will often assert RFRA claims. HHS has not pointed to any example of a publicly traded corporation asserting RFRA rights, and numerous practical restraints would likely prevent that from occurring. For example, the idea that unrelated shareholders— including institutional investors with their own set of stakeholders—would agree to run a corporation under the same religious beliefs seems improbable. In any event, we have no occasion in these cases to consider RFRA’s applicability to such companies. The companies in the cases before us are closely held corporations, each owned and controlled by members of a single family, and no one has disputed the sincerity of their religious beliefs.28
HHS has also provided no evidence that the purported problem of determining the sincerity of an asserted religious belief moved Congress to exclude for-profit corporations from RFRA’s protection. On the contrary, the scope of RLUIPA shows that Congress was confident of the ability of the federal courts to weed out insincere claims. RLUIPA applies to “institutionalized persons,” a category
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28 To qualify for RFRA’s protection, an asserted belief must be “sincere”; a corporation’s pretextual assertion of a religious belief in order to obtain an exemption for financial reasons would fail. Cf., e.g., United States v. Quaintance, 608 F. 3d 717, 718–719 (CA10 2010).

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Opinion of the Court
that consists primarily of prisoners, and by the time of RLUIPA’s enactment, the propensity of some prisoners to assert claims of dubious sincerity was well documented.29 Nevertheless, after our decision in City of Boerne, Congress enacted RLUIPA to preserve the right of prisoners to raise religious liberty claims. If Congress thought that the federal courts were up to the job of dealing with insincere prisoner claims, there is no reason to believe that Congress limited RFRA’s reach out of concern for the seemingly less difficult task of doing the same in corporate cases. And if, as HHS seems to concede, Congress wanted RFRA to apply to nonprofit corporations, see, Reply Brief in No. 13–354, at 7–8, what reason is there to think that Congress believed that spotting insincere claims would be tougher in cases involving for-profits?
HHS and the principal dissent express concern about the possibility of disputes among the owners of corporations, but that is not a problem that arises because of RFRA or that is unique to this context. The owners of closely held corporations may—and sometimes do— disagree about the conduct of business. 1 Treatise of the Law of Corporations §14:11. And even if RFRA did not exist, the owners of a company might well have a dispute relating to religion. For example, some might want a company’s stores to remain open on the Sabbath in order to make more money, and others might want the stores to close for religious reasons. State corporate law provides a ready means for resolving any conflicts by, for example, dictating how a corporation can establish its governing structure. See, e.g., ibid; id., §3:2; Del. Code Ann., Tit. 8, §351 (2011) (providing that certificate of incorporation

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29 See, e.g., Ochs v. Thalacker, 90 F. 3d 293, 296 (CA8 1996); Green v. White, 525 F. Supp. 81, 83–84 (ED Mo. 1981); Abate v. Walton, 1996 WL 5320, *5 (CA9, Jan. 5, 1996); Winters v. State, 549 N. W. 2d 819– 820 (Iowa 1996).

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may provide how “the business of the corporation shall be managed”). Courts will turn to that structure and the underlying state law in resolving disputes.
For all these reasons, we hold that a federal regulation’s restriction on the activities of a for-profit closely held corporation must comply with RFRA.30
IV
Because RFRA applies in these cases, we must next ask whether the HHS contraceptive mandate “substantially burden[s]” the exercise of religion. 42 U. S. C. §2000bb– 1(a). We have little trouble concluding that it does.
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30 The principal dissent attaches significance to the fact that the “Senate voted down [a] so-called ‘conscience amendment,’ which would have enabled any employer or insurance provider to deny coverage based on its asserted religious beliefs or moral convictions.” Post, at 6. The dissent would evidently glean from that vote an intent by the Senate to prohibit for-profit corporate employers from refusing to offer contraceptive coverage for religious reasons, regardless of whether the contraceptive mandate could pass muster under RFRA’s standards. But that is not the only plausible inference from the failed amendment—or even the most likely. For one thing, the text of the amendment was “written so broadly that it would allow any employer to deny any health service to any American for virtually any reason—not just for religious objections.” 158 Cong. Rec. S1165 (Mar. 1, 2012) (emphasis added). Moreover, the amendment would have authorized a blanket exemption for religious or moral objectors; it would not have subjected religious-based objections to the judicial scrutiny called for by RFRA, in which a court must consider not only the burden of a requirement on religious adherents, but also the government’s interest and how narrowly tailored the requirement is. It is thus perfectly reasonable to believe that the amendment was voted down because it extended more broadly than the pre-existing protections of RFRA. And in any event, even if a rejected amendment to a bill could be relevant in other contexts, it surely cannot be relevant here, because any “Federal statutory law adopted after November 16, 1993 is subject to [RFRA] unless such law explicitly excludes such application by reference to [RFRA].” 42 U. S. C. §2000bb–3(b) (emphasis added). It is not plausible to find such an explicit reference in the meager legislative history on which the dissent relies.

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Opinion of the Court
A
As we have noted, the Hahns and Greens have a sincere religious belief that life begins at conception. They therefore object on religious grounds to providing health insurance that covers methods of birth control that, as HHS acknowledges, see Brief for HHS in No. 13–354, at 9, n. 4, may result in the destruction of an embryo. By requiring the Hahns and Greens and their companies to arrange for such coverage, the HHS mandate demands that they engage in conduct that seriously violates their religious beliefs.
If the Hahns and Greens and their companies do not yield to this demand, the economic consequences will be severe. If the companies continue to offer group health plans that do not cover the contraceptives at issue, they will be taxed $100 per day for each affected individual. 26 U. S. C. §4980D. For Hobby Lobby, the bill could amount to $1.3 million per day or about $475 million per year; for Conestoga, the assessment could be $90,000 per day or $33 million per year; and for Mardel, it could be $40,000 per day or about $15 million per year. These sums are surely substantial.
It is true that the plaintiffs could avoid these assessments by dropping insurance coverage altogether and thus forcing their employees to obtain health insurance on one of the exchanges established under ACA. But if at least one of their full-time employees were to qualify for a subsidy on one of the government-run exchanges, this course would also entail substantial economic consequences. The companies could face penalties of $2,000 per employee each year. §4980H. These penalties would amount to roughly $26 million for Hobby Lobby, $1.8 million for Conestoga, and $800,000 for Mardel.
B
Although these totals are high, amici supporting HHS

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have suggested that the $2,000 per-employee penalty is actually less than the average cost of providing health insurance, see Brief for Religious Organizations 22, and therefore, they claim, the companies could readily eliminate any substantial burden by forcing their employees to obtain insurance in the government exchanges. We do not generally entertain arguments that were not raised below and are not advanced in this Court by any party, see United Parcel Service, Inc. v. Mitchell, 451 U. S. 56, 60, n. 2 (1981); Bell v. Wolfish, 441 U. S. 520, 532, n. 13 (1979); Knetsch v. United States, 364 U. S. 361, 370 (1960), and there are strong reasons to adhere to that practice in these cases. HHS, which presumably could have compiled the relevant statistics, has never made this argument— not in its voluminous briefing or at oral argument in this Court nor, to our knowledge, in any of the numerous cases in which the issue now before us has been litigated around the country. As things now stand, we do not even know what the Government’s position might be with respect to these amici’s intensely empirical argument.31 For this same reason, the plaintiffs have never had an opportunity to respond to this novel claim that—contrary to their longstanding practice and that of most large employers— they would be better off discarding their employer insurance plans altogether.
Even if we were to reach this argument, we would find it unpersuasive. As an initial matter, it entirely ignores the fact that the Hahns and Greens and their companies have religious reasons for providing health-insurance coverage for their employees. Before the advent of ACA, they were not legally compelled to provide insurance, but they nevertheless did so—in part, no doubt, for conventional business

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31 Indeed, one of HHS’s stated reasons for establishing the religious accommodation was to “encourag[e] eligible organizations to continue to offer health coverage.” 78 Fed. Reg. 39882 (2013) (emphasis added).

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Opinion of the Court
reasons, but also in part because their religious beliefs govern their relations with their employees. See App. to Pet. for Cert. in No. 13–356, p. 11g; App. in No. 13–354, at 139.
Putting aside the religious dimension of the decision to provide insurance, moreover, it is far from clear that the net cost to the companies of providing insurance is more than the cost of dropping their insurance plans and paying the ACA penalty. Health insurance is a benefit that employees value. If the companies simply eliminated that benefit and forced employees to purchase their own insurance on the exchanges, without offering additional compensation, it is predictable that the companies would face a competitive disadvantage in retaining and attracting skilled workers. See App. in No. 13–354, at 153.
The companies could attempt to make up for the elimination of a group health plan by increasing wages, but this would be costly. Group health insurance is generally less expensive than comparable individual coverage, so the amount of the salary increase needed to fully compensate for the termination of insurance coverage may well exceed the cost to the companies of providing the insurance. In addition, any salary increase would have to take into account the fact that employees must pay income taxes on wages but not on the value of employer-provided health insurance. 26 U. S. C. §106(a). Likewise, employers can deduct the cost of providing health insurance, see §162(a)(1), but apparently cannot deduct the amount of the penalty that they must pay if insurance is not provided; that difference also must be taken into account. Given these economic incentives, it is far from clear that it would be financially advantageous for an employer to drop coverage and pay the penalty.32
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32 Attempting to compensate for dropped insurance by raising wages would also present administrative difficulties. In order to provide full

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In sum, we refuse to sustain the challenged regulations on the ground—never maintained by the Government— that dropping insurance coverage eliminates the substantial burden that the HHS mandate imposes. We doubt that the Congress that enacted RFRA—or, for that matter, ACA—would have believed it a tolerable result to put family-run businesses to the choice of violating their sincerely held religious beliefs or making all of their employees lose their existing healthcare plans.
C
In taking the position that the HHS mandate does not impose a substantial burden on the exercise of religion, HHS’s main argument (echoed by the principal dissent) is basically that the connection between what the objecting parties must do (provide health-insurance coverage for four methods of contraception that may operate after the fertilization of an egg) and the end that they find to be morally wrong (destruction of an embryo) is simply too attenuated. Brief for HHS in 13–354, pp. 31–34; post, at 22–23. HHS and the dissent note that providing the coverage would not itself result in the destruction of an embryo; that would occur only if an employee chose to take advantage of the coverage and to use one of the four methods at issue.33 Ibid.
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compensation for employees, the companies would have to calculate the value to employees of the convenience of retaining their employerprovided coverage and thus being spared the task of attempting to find and sign up for a comparable plan on an exchange. And because some but not all of the companies’ employees may qualify for subsidies on an exchange, it would be nearly impossible to calculate a salary increase that would accurately restore the status quo ante for all employees.
33 This argument is not easy to square with the position taken by HHS in providing exemptions from the contraceptive mandate for religious employers, such as churches, that have the very same religious objections as the Hahns and Greens and their companies. The connection between what these religious employers would be required

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Opinion of the Court
This argument dodges the question that RFRA presents (whether the HHS mandate imposes a substantial burden on the ability of the objecting parties to conduct business in accordance with their religious beliefs) and instead addresses a very different question that the federal courts have no business addressing (whether the religious belief asserted in a RFRA case is reasonable). The Hahns and Greens believe that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage. This belief implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.34 Arrogating the authority to provide a binding national answer to this religious and philosophical question, HHS and the princi-
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to do if not exempted (provide insurance coverage for particular contraceptives) and the ultimate event that they find morally wrong (destruction of an embryo) is exactly the same. Nevertheless, as discussed, HHS and the Labor and Treasury Departments authorized the exemption from the contraceptive mandate of group health plans of certain religious employers, and later expanded the exemption to include certain nonprofit organizations with religious objections to contraceptive coverage. 78 Fed. Reg. 39871. When this was done, the Government made clear that its objective was to “protec[t]” these religious objectors “from having to contract, arrange, pay, or refer for such coverage.” Ibid. Those exemptions would be hard to understand if the plaintiffs’ objections here were not substantial.
34 See, e.g., Oderberg, The Ethics of Co-operation in Wrongdoing, in Modern Moral Philosophy 203–228 (A. O’Hear ed. 2004); T. Higgins, Man as Man: The Science and Art of Ethics 353, 355 (1949) (“The general principles governing cooperation” in wrongdoing—i.e., “physical activity (or its omission) by which a person assists in the evil act of another who is the principal agent”—“present troublesome difficulties in application”); 1 H. Davis, Moral and Pastoral Theology 341 (1935) (Cooperation occurs “when A helps B to accomplish an external act by an act that is not sinful, and without approving of what B does”).

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pal dissent in effect tell the plaintiffs that their beliefs are flawed. For good reason, we have repeatedly refused to take such a step. See, e.g., Smith, 494 U. S., at 887 (“Repeatedly and in many different contexts, we have warned that courts must not presume to determine . . . the plausibility of a religious claim”); Hernandez v. Commissioner, 490 U. S. 680, 699 (1989); Presbyterian Church in U. S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U. S. 440, 450 (1969).
Moreover, in Thomas v. Review Bd. of Indiana Employ­ ment Security Div., 450 U. S. 707 (1981), we considered and rejected an argument that is nearly identical to the one now urged by HHS and the dissent. In Thomas, a Jehovah’s Witness was initially employed making sheet steel for a variety of industrial uses, but he was later transferred to a job making turrets for tanks. Id., at 710. Because he objected on religious grounds to participating in the manufacture of weapons, he lost his job and sought unemployment compensation. Ruling against the employee, the state court had difficulty with the line that the employee drew between work that he found to be consistent with his religious beliefs (helping to manufacture steel that was used in making weapons) and work that he found morally objectionable (helping to make the weapons themselves). This Court, however, held that “it is not for us to say that the line he drew was an unreasonable one.” Id., at 715.35
Similarly, in these cases, the Hahns and Greens and their companies sincerely believe that providing the insurance coverage demanded by the HHS regulations lies on the forbidden side of the line, and it is not for us to say that their religious beliefs are mistaken or insubstantial. Instead, our “narrow function . . . in this context is to
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35 The principal dissent makes no effort to reconcile its view about the substantial-burden requirement with our decision in Thomas.

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Opinion of the Court
determine” whether the line drawn reflects “an honest conviction,” id., at 716, and there is no dispute that it does.
HHS nevertheless compares these cases to decisions in which we rejected the argument that the use of general tax revenue to subsidize the secular activities of religious institutions violated the Free Exercise Clause. See Tilton v. Richardson, 403 U. S. 672, 689 (1971) (plurality); Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U. S. 236, 248–249 (1968). But in those cases, while the subsidies were clearly contrary to the challengers’ views on a secular issue, namely, proper church-state relations, the challengers never articulated a religious objection to the subsidies. As we put it in Tilton, they were “unable to identify any coercion directed at the practice or exercise of their religious beliefs.” 403 U. S., at 689 (plurality opinion); see Allen, supra, at 249 (“[A]ppellants have not contended that the New York law in any way coerces them as individuals in the practice of their religion”). Here, in contrast, the plaintiffs do assert that funding the specific contraceptive methods at issue violates their religious beliefs, and HHS does not question their sincerity. Because the contraceptive mandate forces them to pay an enormous sum of money—as much as $475 million per year in the case of Hobby Lobby—if they insist on providing insurance coverage in accordance with their religious beliefs, the mandate clearly imposes a substantial burden on those beliefs.
V
Since the HHS contraceptive mandate imposes a substantial burden on the exercise of religion, we must move on and decide whether HHS has shown that the mandate both “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U. S. C.

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§2000bb–1(b).
A
HHS asserts that the contraceptive mandate serves a variety of important interests, but many of these are couched in very broad terms, such as promoting “public health” and “gender equality.” Brief for HHS in No. 13– 354, at 46, 49. RFRA, however, contemplates a “more focused” inquiry: It “requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” O’Centro, 546 U. S., at 430–431 (quoting §2000bb–1(b)). This requires us to “loo[k] beyond broadly formulated interests” and to “scrutiniz[e] the asserted harm of granting specific exemptions to particular religious claimants”—in other words, to look to the marginal interest in enforcing the contraceptive mandate in these cases. O Centro, supra, at 431.
In addition to asserting these very broadly framed interests, HHS maintains that the mandate serves a compelling interest in ensuring that all women have access to all FDA-approved contraceptives without cost sharing. See Brief for HHS in No. 13–354, at 14–15, 49; see Brief for HHS in No. 13–356, at 10, 48. Under our cases, women (and men) have a constitutional right to obtain contraceptives, see Griswold v. Connecticut, 381 U. S. 479, 485–486 (1965), and HHS tells us that “[s]tudies have demonstrated that even moderate copayments for preventive services can deter patients from receiving those services.” Brief for HHS in No. 13–354, at 50 (internal quotation marks omitted).
The objecting parties contend that HHS has not shown that the mandate serves a compelling government interest, and it is arguable that there are features of ACA that support that view. As we have noted, many employees—

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Opinion of the Court
those covered by grandfathered plans and those who work for employers with fewer than 50 employees—may have no contraceptive coverage without cost sharing at all.
HHS responds that many legal requirements have exceptions and the existence of exceptions does not in itself indicate that the principal interest served by a law is not compelling. Even a compelling interest may be outweighed in some circumstances by another even weightier consideration. In these cases, however, the interest served by one of the biggest exceptions, the exception for grandfathered plans, is simply the interest of employers in avoiding the inconvenience of amending an existing plan. Grandfathered plans are required “to comply with a subset of the Affordable Care Act’s health reform provisions” that provide what HHS has described as “particularly significant protections.” 75 Fed. Reg. 34540 (2010). But the contraceptive mandate is expressly excluded from this subset. Ibid.
We find it unnecessary to adjudicate this issue. We will assume that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the meaning of RFRA, and we will proceed to consider the final prong of the RFRA test, i.e., whether HHS has shown that the contraceptive mandate is “the least restrictive means of furthering that compelling governmental interest.” §2000bb–1(b)(2).
B
The least-restrictive-means standard is exceptionally demanding, see City of Boerne, 521 U. S., at 532, and it is not satisfied here. HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting parties in these cases. See §§2000bb–1(a), (b) (requiring the Government to “demonstrat[e] that application of [a substantial] burden to the person . . . is the least

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restrictive means of furthering [a] compelling governmental interest” (emphasis added)).
The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections. This would certainly be less restrictive of the plaintiffs’ religious liberty, and HHS has not shown, see §2000bb–1(b)(2), that this is not a viable alternative. HHS has not provided any estimate of the average cost per employee of providing access to these contraceptives, two of which, according to the FDA, are designed primarily for emergency use. See Birth Control: Medicines to Help You, online at http:// www.fda.gov/forconsumers/byaudience/forwomen/freepubli cations/ucm313215.htm. Nor has HHS provided any statistics regarding the number of employees who might be affected because they work for corporations like Hobby Lobby, Conestoga, and Mardel. Nor has HHS told us that it is unable to provide such statistics. It seems likely, however, that the cost of providing the forms of contraceptives at issue in these cases (if not all FDA-approved contraceptives) would be minor when compared with the overall cost of ACA. According to one of the Congressional Budget Office’s most recent forecasts, ACA’s insurancecoverage provisions will cost the Federal Government more than $1.3 trillion through the next decade. See CBO, Updated Estimates of the Effects of the Insurance Coverage Provisions of the Affordable Care Act, April 2014, p. 2.36 If, as HHS tells us, providing all women with cost-free access to all FDA-approved methods of contraception is a Government interest of the highest order, it is hard to understand HHS’s argument that it cannot be required under RFRA to pay anything in order to achieve this
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36 Online at http://cbo.gov/publication/45231.

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Opinion of the Court
important goal. HHS contends that RFRA does not permit us to take
this option into account because “RFRA cannot be used to require creation of entirely new programs.” Brief for HHS in 13–354, at 15.37 But we see nothing in RFRA that supports this argument, and drawing the line between the “creation of an entirely new program” and the modification of an existing program (which RFRA surely allows) would be fraught with problems. We do not doubt that cost may

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37 In a related argument, HHS appears to maintain that a plaintiff cannot prevail on a RFRA claim that seeks an exemption from a legal obligation requiring the plaintiff to confer benefits on third parties. Nothing in the text of RFRA or its basic purposes supports giving the Government an entirely free hand to impose burdens on religious exercise so long as those burdens confer a benefit on other individuals. It is certainly true that in applying RFRA “courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.” Cutter v. Wilkinson, 544 U. S. 709, 720 (2005) (applying RLUIPA). That consideration will often inform the analysis of the Government’s compelling interest and the availability of a less restrictive means of advancing that interest. But it could not reasonably be maintained that any burden on religious exercise, no matter how onerous and no matter how readily the government interest could be achieved through alternative means, is permissible under RFRA so long as the relevant legal obligation requires the religious adherent to confer a benefit on third parties. Otherwise, for example, the Government could decide that all supermarkets must sell alcohol for the convenience of customers (and thereby exclude Muslims with religious objections from owning supermarkets), or it could decide that all restaurants must remain open on Saturdays to give employees an opportunity to earn tips (and thereby exclude Jews with religious objections from owning restaurants). By framing any Government regulation as benefiting a third party, the Government could turn all regulations into entitlements to which nobody could object on religious grounds, rendering RFRA meaningless. In any event, our decision in these cases need not result in any detrimental effect on any third party. As we explain, see infra, at 43–44, the Government can readily arrange for other methods of providing contraceptives, without cost sharing, to employees who are unable to obtain them under their health-insurance plans due to their employers’ religious objections.

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be an important factor in the least-restrictive-means analysis, but both RFRA and its sister statute, RLUIPA, may in some circumstances require the Government to expend additional funds to accommodate citizens’ religious beliefs. Cf. §2000cc–3(c) (RLUIPA: “[T]his chapter may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.”). HHS’s view that RFRA can never require the Government to spend even a small amount reflects a judgment about the importance of religious liberty that was not shared by the Congress that enacted that law.
In the end, however, we need not rely on the option of a new, government-funded program in order to conclude that the HHS regulations fail the least-restrictive-means test. HHS itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs. As we explained above, HHS has already established an accommodation for nonprofit organizations with religious objections. See supra, at 9–10, and nn. 8–9. Under that accommodation, the organization can selfcertify that it opposes providing coverage for particular contraceptive services. See 45 CFR §§147.131(b)(4), (c)(1); 26 CFR §§54.9815–2713A(a)(4), (b). If the organization makes such a certification, the organization’s insurance issuer or third-party administrator must “[e]xpressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan” and “[p]rovide separate payments for any contraceptive services required to be covered” without imposing “any cost-sharing requirements . . . on the eligible organization, the group health plan, or plan participants or beneficiaries.” 45 CFR §147.131(c)(2); 26 CFR §54.9815–2713A(c)(2).38
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38 HHS has concluded that insurers that insure eligible employers

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Opinion of the Court
We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims.39 At a minimum, however, it does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.40
The principal dissent identifies no reason why this accommodation would fail to protect the asserted needs of women as effectively as the contraceptive mandate, and there is none.41 Under the accommodation, the plaintiffs’ female employees would continue to receive contraceptive coverage without cost sharing for all FDA-approved contraceptives, and they would continue to “face minimal
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opting out of the contraceptive mandate and that are required to pay for contraceptive coverage under the accommodation will not experience an increase in costs because the “costs of providing contraceptive coverage are balanced by cost savings from lower pregnancy-related costs and from improvements in women’s health.” 78 Fed. Reg. 39877. With respect to self-insured plans, the regulations establish a mechanism for the eligible employers’ third-party administrators to obtain a compensating reduction in the fee paid by insurers to participate in the federally facilitated exchanges. HHS believes that this system will not have a material effect on the funding of the exchanges because the “payments for contraceptive services will represent only a small portion of total [federally facilitated exchange] user fees.” Id., at 39882; see 26 CFR §54.9815–2713A(b)(3).
39 See n. 9, supra. 40 The principal dissent faults us for being “noncommital” in refusing to decide a case that is not before us here. Post, at 30. The less restrictive approach we describe accommodates the religious beliefs asserted in these cases, and that is the only question we are permitted to address. 41 In the principal dissent’s view, the Government has not had a fair opportunity to address this accommodation, post, at 30. n. 27, but the Government itself apparently believes that when it “provides an exception to a general rule for secular reasons (or for only certain religious reasons), [it] must explain why extending a comparable exception to a specific plaintiff for religious reasons would undermine its compelling interests.” Brief for the United States as Amicus Curiae in Holt v. Hobbs, No. 13–6827, p. 10, now pending before the Court.

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logistical and administrative obstacles,” post, at 28 (internal quotation marks omitted), because their employers’ insurers would be responsible for providing information and coverage, see, e.g., 45 CFR §§147.131(c)–(d); cf. 26 CFR §§54.9815–2713A(b), (d). Ironically, it is the dissent’s approach that would “[i]mped[e] women’s receipt of benefits by ‘requiring them to take steps to learn about, and to sign up for, a new government funded and administered health benefit,’ ” post, at 28, because the dissent would effectively compel religious employers to drop healthinsurance coverage altogether, leaving their employees to find individual plans on government-run exchanges or elsewhere. This is indeed “scarcely what Congress contemplated.” Ibid.
C
HHS and the principal dissent argue that a ruling in favor of the objecting parties in these cases will lead to a flood of religious objections regarding a wide variety of medical procedures and drugs, such as vaccinations and blood transfusions, but HHS has made no effort to substantiate this prediction.42 HHS points to no evidence that insurance plans in existence prior to the enactment of ACA excluded coverage for such items. Nor has HHS provided evidence that any significant number of employers sought exemption, on religious grounds, from any of ACA’s coverage requirements other than the contraceptive mandate.
It is HHS’s apparent belief that no insurance-coverage mandate would violate RFRA—no matter how significantly it impinges on the religious liberties of employers—that would lead to intolerable consequences. Under HHS’s view, RFRA would permit the Government to require all

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42 Cf. 42 U. S. C. §1396s (Federal “program for distribution of pediatric vaccines” for some uninsured and underinsured children).

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Opinion of the Court
employers to provide coverage for any medical procedure allowed by law in the jurisdiction in question—for instance, third-trimester abortions or assisted suicide. The owners of many closely held corporations could not in good conscience provide such coverage, and thus HHS would effectively exclude these people from full participation in the economic life of the Nation. RFRA was enacted to prevent such an outcome.
In any event, our decision in these cases is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurancecoverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.
The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. See post, at 32–33. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.
HHS also raises for the first time in this Court the argument that applying the contraceptive mandate to forprofit employers with sincere religious objections is essential to the comprehensive health-insurance scheme that ACA establishes. HHS analogizes the contraceptive mandate to the requirement to pay Social Security taxes, which we upheld in Lee despite the religious objection of an employer, but these cases are quite different. Our holding in Lee turned primarily on the special problems

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associated with a national system of taxation. We noted that “[t]he obligation to pay the social security tax initially is not fundamentally different from the obligation to pay income taxes.” 455 U. S., at 260. Based on that premise, we explained that it was untenable to allow individuals to seek exemptions from taxes based on religious objections to particular Government expenditures: “If, for example, a religious adherent believes war is a sin, and if a certain percentage of the federal budget can be identified as devoted to war-related activities, such individuals would have a similarly valid claim to be exempt from paying that percentage of the income tax.” Ibid. We observed that “[t]he tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious belief.” Ibid.; see O Centro, 546 U. S., at 435.
Lee was a free-exercise, not a RFRA, case, but if the issue in Lee were analyzed under the RFRA framework, the fundamental point would be that there simply is no less restrictive alternative to the categorical requirement to pay taxes. Because of the enormous variety of government expenditures funded by tax dollars, allowing taxpayers to withhold a portion of their tax obligations on religious grounds would lead to chaos. Recognizing exemptions from the contraceptive mandate is very different. ACA does not create a large national pool of tax revenue for use in purchasing healthcare coverage. Rather, individual employers like the plaintiffs purchase insurance for their own employees. And contrary to the principal dissent’s characterization, the employers’ contributions do not necessarily funnel into “undifferentiated funds.” Post, at 23. The accommodation established by HHS requires issuers to have a mechanism by which to “segregate premium revenue collected from the eligible organization from the monies used to provide payments for contraceptive services.” 45 CFR §147.131(c)(2)(ii).

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Opinion of the Court
Recognizing a religious accommodation under RFRA for particular coverage requirements, therefore, does not threaten the viability of ACA’s comprehensive scheme in the way that recognizing religious objections to particular expenditures from general tax revenues would.43
In its final pages, the principal dissent reveals that its fundamental objection to the claims of the plaintiffs is an objection to RFRA itself. The dissent worries about forcing the federal courts to apply RFRA to a host of claims made by litigants seeking a religious exemption from generally applicable laws, and the dissent expresses a desire to keep the courts out of this business. See post, at 32–35. In making this plea, the dissent reiterates a point made forcefully by the Court in Smith. 494 U. S., at 888– 889 (applying the Sherbert test to all free-exercise claims “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind”). But Congress, in enacting RFRA, took the position that “the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.” 42 U. S. C. §2000bb(a)(5). The wisdom of Congress’s judgment on this
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43 HHS highlights certain statements in the opinion in Lee that it regards as supporting its position in these cases. In particular, HHS notes the statement that “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” 455 U. S., at 261. Lee was a free exercise, not a RFRA, case, and the statement to which HHS points, if taken at face value, is squarely inconsistent with the plain meaning of RFRA. Under RFRA, when followers of a particular religion choose to enter into commercial activity, the Government does not have a free hand in imposing obligations that substantially burden their exercise of religion. Rather, the Government can impose such a burden only if the strict RFRA test is met.

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Opinion of the Court
matter is not our concern. Our responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes, the HHS contraceptive mandate is unlawful.
* * *
The contraceptive mandate, as applied to closely held corporations, violates RFRA. Our decision on that statutory question makes it unnecessary to reach the First Amendment claim raised by Conestoga and the Hahns.
The judgment of the Tenth Circuit in No. 13–354 is affirmed; the judgment of the Third Circuit in No. 13–356 is reversed, and that case is remanded for further proceedings consistent with this opinion.
It is so ordered.

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1

KENNEDY, J., concurring

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 13–354 and 13–356
_________________

SYLVIA BURWELL, SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL., PETITIONERS

13–354

v.

HOBBY LOBBY STORES, INC., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

AND

CONESTOGA WOOD SPECIALTIES CORPORATION

ET AL., PETITIONERS

13–356

v.

SYLVIA BURWELL, SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
[June 30, 2014]

JUSTICE KENNEDY, concurring.
It seems to me appropriate, in joining the Court’s opinion, to add these few remarks. At the outset it should be said that the Court’s opinion does not have the breadth and sweep ascribed to it by the respectful and powerful dissent. The Court and the dissent disagree on the proper interpretation of the Religious Freedom and Restoration Act of 1993 (RFRA), but do agree on the purpose of that statute. 42 U. S. C. §2000bb et seq. It is to ensure that interests in religious freedom are protected. Ante, at 5–6; post, at 8–9 (GINSBURG, J., dissenting).
In our constitutional tradition, freedom means that all persons have the right to believe or strive to believe in a divine creator and a divine law. For those who choose this

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KENNEDY, J., concurring
course, free exercise is essential in preserving their own dignity and in striving for a self-definition shaped by their religious precepts. Free exercise in this sense implicates more than just freedom of belief. See Cantwell v. Connecticut, 310 U. S. 296, 303 (1940). It means, too, the right to express those beliefs and to establish one’s religious (or nonreligious) self-definition in the political, civic, and economic life of our larger community. But in a complex society and an era of pervasive governmental regulation, defining the proper realm for free exercise can be difficult. In these cases the plaintiffs deem it necessary to exercise their religious beliefs within the context of their own closely held, for-profit corporations. They claim protection under RFRA, the federal statute discussed with care and in detail in the Court’s opinion.
As the Court notes, under our precedents, RFRA imposes a “ ‘stringent test.’ ” Ante, at 6 (quoting City of Boerne v. Flores, 521 U. S. 507, 533 (1997)). The Government must demonstrate that the application of a substantial burden to a person’s exercise of religion “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” §2000bb–1(b).
As to RFRA’s first requirement, the Department of Health and Human Services (HHS) makes the case that the mandate serves the Government’s compelling interest in providing insurance coverage that is necessary to protect the health of female employees, coverage that is significantly more costly than for a male employee. Ante, at 39; see, e.g., Brief for HHS in No. 13–354, pp. 14–15. There are many medical conditions for which pregnancy is contraindicated. See, e.g., id., at 47. It is important to confirm that a premise of the Court’s opinion is its assumption that the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees. Ante, at 40.

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KENNEDY, J., concurring
But the Government has not made the second showing required by RFRA, that the means it uses to regulate is the least restrictive way to further its interest. As the Court’s opinion explains, the record in these cases shows that there is an existing, recognized, workable, and already-implemented framework to provide coverage. That framework is one that HHS has itself devised, that the plaintiffs have not criticized with a specific objection that has been considered in detail by the courts in this litigation, and that is less restrictive than the means challenged by the plaintiffs in these cases. Ante, at 9–10, and n. 9, 43–44.
The means the Government chose is the imposition of a direct mandate on the employers in these cases. Ante, at 8–9. But in other instances the Government has allowed the same contraception coverage in issue here to be provided to employees of nonprofit religious organizations, as an accommodation to the religious objections of those entities. See ante, at 9–10, and n. 9, 43–44. The accommodation works by requiring insurance companies to cover, without cost sharing, contraception coverage for female employees who wish it. That accommodation equally furthers the Government’s interest but does not impinge on the plaintiffs’ religious beliefs. See ante, at 44.
On this record and as explained by the Court, the Government has not met its burden of showing that it cannot accommodate the plaintiffs’ similar religious objections under this established framework. RFRA is inconsistent with the insistence of an agency such as HHS on distinguishing between different religious believers—burdening one while accommodating the other—when it may treat both equally by offering both of them the same accommodation.
The parties who were the plaintiffs in the District Courts argue that the Government could pay for the methods that are found objectionable. Brief for Respond-

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KENNEDY, J., concurring
ents in No. 13–354, p. 58. In discussing this alternative, the Court does not address whether the proper response to a legitimate claim for freedom in the health care arena is for the Government to create an additional program. Ante, at 41–43. The Court properly does not resolve whether one freedom should be protected by creating incentives for additional government constraints. In these cases, it is the Court’s understanding that an accommodation may be made to the employers without imposition of a whole new program or burden on the Government. As the Court makes clear, this is not a case where it can be established that it is difficult to accommodate the government’s interest, and in fact the mechanism for doing so is already in place. Ante, at 43–44.
“[T]he American community is today, as it long has been, a rich mosaic of religious faiths.” Town of Greece v. Galloway, 572 U. S. ___, ___ (2014) (KAGAN, J., dissenting) (slip op., at 15). Among the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion. Yet neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling. In these cases the means to reconcile those two priorities are at hand in the existing accommodation the Government has designed, identified, and used for circumstances closely parallel to those presented here. RFRA requires the Government to use this less restrictive means. As the Court explains, this existing model, designed precisely for this problem, might well suffice to distinguish the instant cases from many others in which it is more difficult and expensive to accommodate a governmental program to countless religious claims based on an alleged statutory right of free exercise. Ante, at 45–46.
For these reasons and others put forth by the Court, I join its opinion.

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1

GINSBURG, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 13–354 and 13–356
_________________

SYLVIA BURWELL, SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL., PETITIONERS

13–354

v.

HOBBY LOBBY STORES, INC., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

AND

CONESTOGA WOOD SPECIALTIES CORPORATION

ET AL., PETITIONERS

13–356

v.

SYLVIA BURWELL, SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
[June 30, 2014]

JUSTICE GINSBURG, with whom JUSTICE SOTOMAYOR joins, and with whom JUSTICE BREYER and JUSTICE KAGAN join as to all but Part III–C–1, dissenting.
In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs. See ante, at 16–49. Compelling governmental interests in uniform compliance with the law, and disadvantages that religion-based optouts impose on others, hold no sway, the Court decides, at least when there is a “less restrictive alternative.” And such an alternative, the Court suggests, there always will be whenever, in lieu of tolling an enterprise claiming a

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GINSBURG, J., dissenting
religion-based exemption, the government, i.e., the general public, can pick up the tab. See ante, at 41–43.1
The Court does not pretend that the First Amendment’s Free Exercise Clause demands religion-based accommodations so extreme, for our decisions leave no doubt on that score. See infra, at 6–8. Instead, the Court holds that Congress, in the Religious Freedom Restoration Act of 1993 (RFRA), 42 U. S. C. §2000bb et seq., dictated the extraordinary religion-based exemptions today’s decision endorses. In the Court’s view, RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith—in these cases, thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those corporations employ. Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent.
I
“The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 856 (1992). Congress acted on that understand-
——————
1 The Court insists it has held none of these things, for another less restrictive alternative is at hand: extending an existing accommodation, currently limited to religious nonprofit organizations, to encompass commercial enterprises. See ante, at 3–4. With that accommodation extended, the Court asserts, “women would still be entitled to all [Food and Drug Administration]-approved contraceptives without cost sharing.” Ante, at 4. In the end, however, the Court is not so sure. In stark contrast to the Court’s initial emphasis on this accommodation, it ultimately declines to decide whether the highlighted accommodation is even lawful. See ante, at 44 (“We do not decide today whether an approach of this type complies with RFRA . . . .”).

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GINSBURG, J., dissenting
ing when, as part of a nationwide insurance program intended to be comprehensive, it called for coverage of preventive care responsive to women’s needs. Carrying out Congress’ direction, the Department of Health and Human Services (HHS), in consultation with public health experts, promulgated regulations requiring group health plans to cover all forms of contraception approved by the Food and Drug Administration (FDA). The genesis of this coverage should enlighten the Court’s resolution of these cases.
A
The Affordable Care Act (ACA), in its initial form, specified three categories of preventive care that health plans must cover at no added cost to the plan participant or beneficiary.2 Particular services were to be recommended by the U. S. Preventive Services Task Force, an independent panel of experts. The scheme had a large gap, however; it left out preventive services that “many women’s health advocates and medical professionals believe are critically important.” 155 Cong. Rec. 28841 (2009) (statement of Sen. Boxer). To correct this oversight, Senator Barbara Mikulski introduced the Women’s Health Amendment, which added to the ACA’s minimum coverage requirements a new category of preventive services specific to women’s health.
Women paid significantly more than men for preventive care, the amendment’s proponents noted; in fact, cost

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2 See 42 U. S. C. §300gg–13(a)(1)–(3) (group health plans must provide coverage, without cost sharing, for (1) certain “evidence-based items or services” recommended by the U. S. Preventive Services Task Force; (2) immunizations recommended by an advisory committee of the Centers for Disease Control and Prevention; and (3) “with respect to infants, children, and adolescents, evidence-informed preventive care and screenings provided for in the comprehensive guidelines supported by the Health Resources and Services Administration”).

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GINSBURG, J., dissenting
barriers operated to block many women from obtaining needed care at all. See, e.g., id., at 29070 (statement of Sen. Feinstein) (“Women of childbearing age spend 68 percent more in out-of-pocket health care costs than men.”); id., at 29302 (statement of Sen. Mikulski) (“copayments are [often] so high that [women] avoid getting [preventive and screening services] in the first place”). And increased access to contraceptive services, the sponsors comprehended, would yield important public health gains. See, e.g., id., at 29768 (statement of Sen. Durbin) (“This bill will expand health insurance coverage to the vast majority of [the 17 million women of reproductive age in the United States who are uninsured] . . . . This expanded access will reduce unintended pregnancies.”).
As altered by the Women’s Health Amendment’s passage, the ACA requires new insurance plans to include coverage without cost sharing of “such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [(HRSA)],” a unit of HHS. 42 U. S. C. §300gg–13(a)(4). Thus charged, the HRSA developed recommendations in consultation with the Institute of Medicine (IOM). See 77 Fed. Reg. 8725–8726 (2012).3 The IOM convened a group of independent experts, including “specialists in disease prevention [and] women’s health”; those experts prepared a report evaluating the efficacy of a number of preventive services. IOM, Clinical Prevention Services for Women: Closing the Gaps 2 (2011) (hereinafter IOM Report). Consistent with the findings of “[n]umerous health professional associations” and other organizations, the IOM experts determined that preven-

——————
3 The IOM is an arm of the National Academy of Sciences, an organization Congress established “for the explicit purpose of furnishing advice to the Government.” Public Citizen v. Department of Justice, 491 U. S. 440, 460, n. 11 (1989) (internal quotation marks omitted).

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GINSBURG, J., dissenting
tive coverage should include the “full range” of FDAapproved contraceptive methods. Id., at 10. See also id., at 102–110.
In making that recommendation, the IOM’s report expressed concerns similar to those voiced by congressional proponents of the Women’s Health Amendment. The report noted the disproportionate burden women carried for comprehensive health services and the adverse health consequences of excluding contraception from preventive care available to employees without cost sharing. See, e.g., id., at 19 (“[W]omen are consistently more likely than men to report a wide range of cost-related barriers to receiving . . . medical tests and treatments and to filling prescriptions for themselves and their families.”); id., at 103–104, 107 (pregnancy may be contraindicated for women with certain medical conditions, for example, some congenital heart diseases, pulmonary hypertension, and Marfan syndrome, and contraceptives may be used to reduce risk of endometrial cancer, among other serious medical conditions); id., at 103 (women with unintended pregnancies are more likely to experience depression and anxiety, and their children face “increased odds of preterm birth and low birth weight”).
In line with the IOM’s suggestions, the HRSA adopted guidelines recommending coverage of “[a]ll [FDA-] approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.”4 Thereafter, HHS, the Department of Labor, and the Department of Treasury promulgated regulations requiring group health plans to include coverage of the contraceptive services recommended in the
——————
4 HRSA, HHS, Women’s Preventive Services Guidelines, available at http://www.hrsa.gov/womensguidelines/ (all Internet materials as visited June 27, 2014, and available in Clerk of Court’s case file), reprinted in App. to Brief for Petitioners in No. 13–354, pp. 43–44a. See also 77 Fed. Reg. 8725–8726 (2012).

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GINSBURG, J., dissenting
HRSA guidelines, subject to certain exceptions, described infra, at 25–27.5 This opinion refers to these regulations as the contraceptive coverage requirement.
B
While the Women’s Health Amendment succeeded, a countermove proved unavailing. The Senate voted down the so-called “conscience amendment,” which would have enabled any employer or insurance provider to deny coverage based on its asserted “religious beliefs or moral convictions.” 158 Cong. Rec. S539 (Feb. 9, 2012); see id., at S1162–S1173 (Mar. 1, 2012) (debate and vote).6 That amendment, Senator Mikulski observed, would have “pu[t] the personal opinion of employers and insurers over the practice of medicine.” Id., at S1127 (Feb. 29, 2012). Rejecting the “conscience amendment,” Congress left health care decisions—including the choice among contraceptive methods—in the hands of women, with the aid of their health care providers.
II
Any First Amendment Free Exercise Clause claim Hobby Lobby or Conestoga7 might assert is foreclosed by this Court’s decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990). In Smith, two members of the Native American Church were dis-
——————
5 45 CFR §147.130(a)(1)(iv) (2013) (HHS); 29 CFR §2590.715– 2713(a)(1)(iv) (2013) (Labor); 26 CFR §54.9815–2713(a)(1)(iv) (2013) (Treasury).
6 Separating moral convictions from religious beliefs would be of questionable legitimacy. See Welsh v. United States, 398 U. S. 333, 357–358 (1970) (Harlan, J., concurring in result).
7 As the Court explains, see ante, at 11–16, these cases arise from two separate lawsuits, one filed by Hobby Lobby, its affiliated business (Mardel), and the family that operates these businesses (the Greens); the other filed by Conestoga and the family that owns and controls that business (the Hahns). Unless otherwise specified, this opinion refers to the respective groups of plaintiffs as Hobby Lobby and Conestoga.

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7

GINSBURG, J., dissenting
missed from their jobs and denied unemployment benefits because they ingested peyote at, and as an essential element of, a religious ceremony. Oregon law forbade the consumption of peyote, and this Court, relying on that prohibition, rejected the employees’ claim that the denial of unemployment benefits violated their free exercise rights. The First Amendment is not offended, Smith held, when “prohibiting the exercise of religion . . . is not the object of [governmental regulation] but merely the incidental effect of a generally applicable and otherwise valid provision.” Id., at 878; see id., at 878–879 (“an individual’s religious beliefs [do not] excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate”). The ACA’s contraceptive coverage requirement applies generally, it is “otherwise valid,” it trains on women’s well being, not on the exercise of religion, and any effect it has on such exercise is incidental.
Even if Smith did not control, the Free Exercise Clause would not require the exemption Hobby Lobby and Conestoga seek. Accommodations to religious beliefs or observances, the Court has clarified, must not significantly impinge on the interests of third parties.8

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8 See Wisconsin v. Yoder, 406 U. S. 205, 230 (1972) (“This case, of course, is not one in which any harm to the physical or mental health of the child or to the public safety, peace, order, or welfare has been demonstrated or may be properly inferred.”); Estate of Thornton v. Caldor, Inc., 472 U. S. 703 (1985) (invalidating state statute requiring employers to accommodate an employee’s Sabbath observance where that statute failed to take into account the burden such an accommodation would impose on the employer or other employees). Notably, in construing the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U. S. C. §2000cc et seq., the Court has cautioned that “adequate account” must be taken of “the burdens a requested accommodation may impose on nonbeneficiaries.” Cutter v. Wilkinson, 544 U. S. 709, 720 (2005); see id., at 722 (“an accommodation must be measured so that it does not override other significant interests”). A

8

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GINSBURG, J., dissenting
The exemption sought by Hobby Lobby and Conestoga would override significant interests of the corporations’ employees and covered dependents. It would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the ACA would otherwise secure. See Catholic Charities of Sacramento, Inc. v. Superior Court, 32 Cal. 4th 527, 565, 85 P. 3d 67, 93 (2004) (“We are unaware of any decision in which . . . [the U. S. Supreme Court] has exempted a religious objector from the operation of a neutral, generally applicable law despite the recognition that the requested exemption would detrimentally affect the rights of third parties.”). In sum, with respect to free exercise claims no less than free speech claims, “ ‘[y]our right to swing your arms ends just where the other man’s nose begins.’ ” Chafee, Freedom of Speech in War Time, 32 Harv. L. Rev. 932, 957 (1919).
III A
Lacking a tenable claim under the Free Exercise Clause, Hobby Lobby and Conestoga rely on RFRA, a statute instructing that “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” unless the government shows that application of the burden is “the least restrictive means” to further a “compelling governmental interest.” 42 U. S. C. §2000bb–1(a), (b)(2). In RFRA, Congress “adopt[ed] a statutory rule comparable to the constitutional rule rejected in Smith.” Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U. S. 418, 424 (2006).
RFRA’s purpose is specific and written into the statute itself. The Act was crafted to “restore the compelling
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balanced approach is all the more in order when the Free Exercise Clause itself is at stake, not a statute designed to promote accommodation to religious beliefs and practices.

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9

GINSBURG, J., dissenting
interest test as set forth in Sherbert v. Verner, 374 U. S. 398 (1963) and Wisconsin v. Yoder, 406 U. S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened.” §2000bb(b)(1).9 See also §2000bb(a)(5) (“[T]he compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.”); ante, at 48 (agreeing that the pre-Smith compelling interest test is “workable” and “strike[s] sensible balances”).
The legislative history is correspondingly emphatic on RFRA’s aim. See, e.g., S. Rep. No. 103–111, p. 12 (1993) (hereinafter Senate Report) (RFRA’s purpose was “only to overturn the Supreme Court’s decision in Smith,” not to “unsettle other areas of the law.”); 139 Cong. Rec. 26178 (1993) (statement of Sen. Kennedy) (RFRA was “designed to restore the compelling interest test for deciding free exercise claims.”). In line with this restorative purpose, Congress expected courts considering RFRA claims to “look to free exercise cases decided prior to Smith for guidance.” Senate Report 8. See also H. R. Rep. No. 103– 88, pp. 6–7 (1993) (hereinafter House Report) (same). In short, the Act reinstates the law as it was prior to Smith, without “creat[ing] . . . new rights for any religious practice or for any potential litigant.” 139 Cong. Rec. 26178 (statement of Sen. Kennedy). Given the Act’s moderate purpose, it is hardly surprising that RFRA’s enactment in 1993 provoked little controversy. See Brief for Senator Murray et al. as Amici Curiae 8 (hereinafter Senators
——————
9 Under Sherbert and Yoder, the Court “requir[ed] the government to justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve that interest.” Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 894 (1990) (O’Connor, J., concurring in judgment).

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Brief ) (RFRA was approved by a 97-to-3 vote in the Senate and a voice vote in the House of Representatives).
B
Despite these authoritative indications, the Court sees RFRA as a bold initiative departing from, rather than restoring, pre-Smith jurisprudence. See ante, at 6, n. 3, 7, 17, 25–27. To support its conception of RFRA as a measure detached from this Court’s decisions, one that sets a new course, the Court points first to the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U. S. C. §2000cc et seq., which altered RFRA’s definition of the term “exercise of religion.” RFRA, as originally enacted, defined that term to mean “the exercise of religion under the First Amendment to the Constitution.” §2000bb–2(4) (1994 ed.). See ante, at 6–7. As amended by RLUIPA, RFRA’s definition now includes “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” §2000bb–2(4) (2012 ed.) (crossreferencing §2000cc–5). That definitional change, according to the Court, reflects “an obvious effort to effect a complete separation from First Amendment case law.” Ante, at 7.
The Court’s reading is not plausible. RLUIPA’s alteration clarifies that courts should not question the centrality of a particular religious exercise. But the amendment in no way suggests that Congress meant to expand the class of entities qualified to mount religious accommodation claims, nor does it relieve courts of the obligation to inquire whether a government action substantially burdens a religious exercise. See Rasul v. Myers, 563 F. 3d 527, 535 (CADC 2009) (Brown, J., concurring) (“There is no doubt that RLUIPA’s drafters, in changing the definition of ‘exercise of religion,’ wanted to broaden the scope of the kinds of practices protected by RFRA, not increase the universe of individuals protected by RFRA.”); H. R. Rep.

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GINSBURG, J., dissenting
No. 106–219, p. 30 (1999). See also Gilardi v. United States Dept. of Health and Human Servs., 733 F. 3d 1208, 1211 (CADC 2013) (RFRA, as amended, “provides us with no helpful definition of ‘exercise of religion.’ ”); Henderson v. Kennedy, 265 F. 3d 1072, 1073 (CADC 2001) (“The [RLUIPA] amendments did not alter RFRA’s basic prohibition that the ‘[g]overnment shall not substantially burden a person’s exercise of religion.’ ”).10
Next, the Court highlights RFRA’s requirement that the government, if its action substantially burdens a person’s religious observance, must demonstrate that it chose the least restrictive means for furthering a compelling interest. “[B]y imposing a least-restrictive-means test,” the Court suggests, RFRA “went beyond what was required by our pre-Smith decisions.” Ante, at 17, n. 18 (citing City of Boerne v. Flores, 521 U. S. 507 (1997)). See also ante, at 6, n. 3. But as RFRA’s statements of purpose and legislative history make clear, Congress intended only to restore, not to scrap or alter, the balancing test as this Court had applied it pre-Smith. See supra, at 8–9. See also Senate Report 9 (RFRA’s “compelling interest test generally should not be construed more stringently or more leniently than it was prior to Smith.”); House Report 7 (same).
The Congress that passed RFRA correctly read this Court’s pre-Smith case law as including within the “compelling interest test” a “least restrictive means” requirement. See, e.g., Senate Report 5 (“Where [a substantial] burden is placed upon the free exercise of religion, the Court ruled [in Sherbert], the Government must demon-
——————
10 RLUIPA, the Court notes, includes a provision directing that “[t]his chapter [i.e., RLUIPA] shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of [the Act] and the Constitution.” 42 U. S. C. §2000cc–3(g); see ante, at 6–7, 26. RFRA incorporates RLUIPA’s definition of “exercise of religion,” as RLUIPA does, but contains no omnibus rule of construction governing the statute in its entirety.

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GINSBURG, J., dissenting
strate that it is the least restrictive means to achieve a compelling governmental interest.”). And the view that the pre-Smith test included a “least restrictive means” requirement had been aired in testimony before the Senate Judiciary Committee by experts on religious freedom. See, e.g., Hearing on S. 2969 before the Senate Committee on the Judiciary, 102d Cong., 2d Sess., 78–79 (1993) (statement of Prof. Douglas Laycock).
Our decision in City of Boerne, it is true, states that the least restrictive means requirement “was not used in the pre-Smith jurisprudence RFRA purported to codify.” See ante, at 6, n. 3, 17, n. 18. As just indicated, however, that statement does not accurately convey the Court’s preSmith jurisprudence. See Sherbert, 374 U. S., at 407 (“[I]t would plainly be incumbent upon the [government] to demonstrate that no alternative forms of regulation would combat [the problem] without infringing First Amendment rights.”); Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707, 718 (1981) (“The state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling state interest.”). See also Berg, The New Attacks on Religious Freedom Legislation and Why They Are Wrong, 21 Cardozo L. Rev. 415, 424 (1999) (“In Boerne, the Court erroneously said that the least restrictive means test ‘was not used in the pre-Smith jurisprudence.’ ”).11
C
With RFRA’s restorative purpose in mind, I turn to the

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11 The Court points out that I joined the majority opinion in City of Boerne and did not then question the statement that “least restrictive means . . . was not used [pre-Smith].” Ante, at 17, n. 18. Concerning that observation, I remind my colleagues of Justice Jackson’s sage comment: “I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday.” Massachusetts v. United States, 333 U. S. 611, 639–640 (1948) (dissenting opinion).

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Act’s application to the instant lawsuits. That task, in view of the positions taken by the Court, requires consideration of several questions, each potentially dispositive of Hobby Lobby’s and Conestoga’s claims: Do for-profit corporations rank among “person[s]” who “exercise . . . religion”? Assuming that they do, does the contraceptive coverage requirement “substantially burden” their religious exercise? If so, is the requirement “in furtherance of a compelling government interest”? And last, does the requirement represent the least restrictive means for furthering that interest?
Misguided by its errant premise that RFRA moved beyond the pre-Smith case law, the Court falters at each step of its analysis.
1
RFRA’s compelling interest test, as noted, see supra, at 8, applies to government actions that “substantially burden a person’s exercise of religion.” 42 U. S. C. §2000bb– 1(a) (emphasis added). This reference, the Court submits, incorporates the definition of “person” found in the Dictionary Act, 1 U. S. C. §1, which extends to “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” See ante, at 19–20. The Dictionary Act’s definition, however, controls only where “context” does not “indicat[e] otherwise.” §1. Here, context does so indicate. RFRA speaks of “a person’s exercise of religion.” 42 U. S. C. §2000bb–1(a) (emphasis added). See also §§2000bb–2(4), 2000cc–5(7)(a).12 Whether

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12 As earlier explained, see supra, at 10–11, RLUIPA’s amendment of the definition of “exercise of religion” does not bear the weight the Court places on it. Moreover, it is passing strange to attribute to RLUIPA any purpose to cover entities other than “religious assembl[ies] or institution[s].” 42 U. S. C. §2000cc(a)(1). But cf. ante, at 26. That law applies to land-use regulation. §2000cc(a)(1). To permit commercial enterprises to challenge zoning and other land-use regula-

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BURWELL v. HOBBY LOBBY STORES, INC.

GINSBURG, J., dissenting
a corporation qualifies as a “person” capable of exercising religion is an inquiry one cannot answer without reference to the “full body” of pre-Smith “free-exercise caselaw.” Gilardi, 733 F. 3d, at 1212. There is in that case law no support for the notion that free exercise rights pertain to for-profit corporations.
Until this litigation, no decision of this Court recognized a for-profit corporation’s qualification for a religious exemption from a generally applicable law, whether under the Free Exercise Clause or RFRA.13 The absence of such precedent is just what one would expect, for the exercise of religion is characteristic of natural persons, not artificial legal entities. As Chief Justice Marshall observed nearly two centuries ago, a corporation is “an artificial being, invisible, intangible, and existing only in contemplation of law.” Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 636 (1819). Corporations, Justice Stevens more recently reminded, “have no consciences, no beliefs, no feelings, no thoughts, no desires.” Citizens United v. Federal Election Comm’n, 558 U. S. 310, 466 (2010) (opinion concurring in part and dissenting in part).
The First Amendment’s free exercise protections, the

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tions under RLUIPA would “dramatically expand the statute’s reach” and deeply intrude on local prerogatives, contrary to Congress’ intent. Brief for National League of Cities et al. as Amici Curiae 26.
13 The Court regards Gallagher v. Crown Kosher Super Market of Mass., Inc., 366 U. S. 617 (1961), as “suggest[ing] . . . that for-profit corporations possess [free-exercise] rights.” Ante, at 26–27. See also ante, at 21, n. 21. The suggestion is barely there. True, one of the five challengers to the Sunday closing law assailed in Gallagher was a corporation owned by four Orthodox Jews. The other challengers were human individuals, not artificial, law-created entities, so there was no need to determine whether the corporation could institute the litigation. Accordingly, the plurality stated it could pretermit the question “whether appellees ha[d] standing” because Braunfeld v. Brown, 366 U. S. 599 (1961), which upheld a similar closing law, was fatal to their claim on the merits. 366 U. S., at 631.

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Court has indeed recognized, shelter churches and other nonprofit religion-based organizations.14 “For many individuals, religious activity derives meaning in large measure from participation in a larger religious community,” and “furtherance of the autonomy of religious organizations often furthers individual religious freedom as well.” Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327, 342 (1987) (Brennan, J., concurring in judgment). The Court’s “special solicitude to the rights of religious organizations,” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. ___, ___ (2012) (slip op., at 14), however, is just that. No such solicitude is traditional for commercial organizations.15 Indeed, until today, religious

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14 See, e.g., Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. ___ (2012); Gonzales v. O Centro Espírita Benefi­ cente União do Vegetal, 546 U. S. 418 (2006); Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993); Jimmy Swaggart Ministries v. Board of Equalization of Cal., 493 U. S. 378 (1990).
15 Typically, Congress has accorded to organizations religious in character religion-based exemptions from statutes of general application. E.g., 42 U. S. C. §2000e–1(a) (Title VII exemption from prohibition against employment discrimination based on religion for “a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on . . . of its activities”); 42 U. S. C. §12113(d)(1) (parallel exemption in Americans With Disabilities Act of 1990). It can scarcely be maintained that RFRA enlarges these exemptions to allow Hobby Lobby and Conestoga to hire only persons who share the religious beliefs of the Greens or Hahns. Nor does the Court suggest otherwise. Cf. ante, at 28.
The Court does identify two statutory exemptions it reads to cover for-profit corporations, 42 U. S. C. §§300a–7(b)(2) and 238n(a), and infers from them that “Congress speaks with specificity when it intends a religious accommodation not to extend to for-profit corporations,” ante, at 28. The Court’s inference is unwarranted. The exemptions the Court cites cover certain medical personnel who object to performing or assisting with abortions. Cf. ante, at 28, n. 27 (“the protection provided by §238n(a) differs significantly from the protection provided by

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BURWELL v. HOBBY LOBBY STORES, INC.

GINSBURG, J., dissenting
exemptions had never been extended to any entity operating in “the commercial, profit-making world.” Amos, 483 U. S., at 337.16
The reason why is hardly obscure. Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community. Indeed, by law, no religion-based criterion can restrict the

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RFRA”). Notably, the Court does not assert that these exemptions have in fact been afforded to for-profit corporations. See §238n(c) (“health care entity” covered by exemption is a term defined to include “an individual physician, a postgraduate physician training program, and a participant in a program of training in the health professions”); Tozzi, Whither Free Exercise: Employment Division v. Smith and the Rebirth of State Constitutional Free Exercise Clause Jurisprudence?, 48 J. Catholic Legal Studies 269, 296, n. 133 (2009) (“Catholic physicians, but not necessarily hospitals, . . . may be able to invoke [§238n(a)] . . . .”); cf. S. 137, 113th Cong., 1st Sess. (2013) (as introduced) (Abortion Non-Discrimination Act of 2013, which would amend the definition of “health care entity” in §238n to include “hospital[s],” “health insurance plan[s],” and other health care facilities). These provisions are revealing in a way that detracts from one of the Court’s main arguments. They show that Congress is not content to rest on the Dictionary Act when it wishes to ensure that particular entities are among those eligible for a religious accommodation.
Moreover, the exemption codified in §238n(a) was not enacted until three years after RFRA’s passage. See Omnibus Consolidated Rescissions and Appropriations Act of 1996, §515, 110 Stat. 1321–245. If, as the Court believes, RFRA opened all statutory schemes to religionbased challenges by for-profit corporations, there would be no need for a statute-specific, post-RFRA exemption of this sort.
16 That is not to say that a category of plaintiffs, such as resident aliens, may bring RFRA claims only if this Court expressly “addressed their [free-exercise] rights before Smith.” Ante, at 27. Continuing with the Court’s example, resident aliens, unlike corporations, are flesh-andblood individuals who plainly count as persons sheltered by the First Amendment, see United States v. Verdugo-Urquidez, 494 U. S. 259, 271 (1990) (citing Bridges v. Wixon, 326 U. S. 135, 148 (1945)), and a fortiori, RFRA.

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work force of for-profit corporations. See 42 U. S. C. §§2000e(b), 2000e–1(a), 2000e–2(a); cf. Trans World Air­ lines, Inc. v. Hardison, 432 U. S. 63, 80–81 (1977) (Title VII requires reasonable accommodation of an employee’s religious exercise, but such accommodation must not come “at the expense of other[ employees]”). The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention.17 One can only wonder why the Court shuts this key difference from sight.
Reading RFRA, as the Court does, to require extension of religion-based exemptions to for-profit corporations surely is not grounded in the pre-Smith precedent Congress sought to preserve. Had Congress intended RFRA to initiate a change so huge, a clarion statement to that effect likely would have been made in the legislation. See Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001) (Congress does not “hide elephants in mouseholes”). The text of RFRA makes no such statement and the legislative history does not so much as mention forprofit corporations. See Hobby Lobby Stores, Inc. v. Sebe­ lius, 723 F. 3d 1114, 1169 (CA10 2013) (Briscoe, C. J., concurring in part and dissenting in part) (legislative record lacks “any suggestion that Congress foresaw, let alone intended that, RFRA would cover for-profit corporations”). See also Senators Brief 10–13 (none of the
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17 I part ways with JUSTICE KENNEDY on the context relevant here. He sees it as the employers’ “exercise [of] their religious beliefs within the context of their own closely held, for-profit corporations.” Ante, at 2 (concurring opinion). See also ante, at 45–46 (opinion of the Court) (similarly concentrating on religious faith of employers without reference to the different beliefs and liberty interests of employees). I see as the relevant context the employers’ asserted right to exercise religion within a nationwide program designed to protect against health hazards employees who do not subscribe to their employers’ religious beliefs.

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cases cited in House or Senate Judiciary Committee reports accompanying RFRA, or mentioned during floor speeches, recognized the free exercise rights of for-profit corporations).
The Court notes that for-profit corporations may support charitable causes and use their funds for religious ends, and therefore questions the distinction between such corporations and religious nonprofit organizations. See ante, at 20–25. See also ante, at 3 (KENNEDY, J., concurring) (criticizing the Government for “distinguishing between different religious believers—burdening one while accommodating the other—when it may treat both equally by offering both of them the same accommodation”).18 Again, the Court forgets that religious organizations exist to serve a community of believers. For-profit corporations do not fit that bill. Moreover, history is not on the Court’s side. Recognition of the discrete characters of “ecclesiastical and lay” corporations dates back to Blackstone, see 1 W. Blackstone, Commentaries on the Laws of England 458 (1765), and was reiterated by this Court centuries before the enactment of the Internal Revenue Code. See Terrett v. Taylor, 9 Cranch 43, 49 (1815) (describing religious corporations); Trustees of Dartmouth College, 4 Wheat., at 645 (discussing “eleemosynary” corporations, including those “created for the promotion of religion”). To reiterate, “for-profit corporations are different from religious non-
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18 According to the Court, the Government “concedes” that “nonprofit corporation[s]” are protected by RFRA. Ante, at 19. See also ante, at 20, 24, 30. That is not an accurate description of the Government’s position, which encompasses only “churches,” “religious institutions,” and “religious non-profits.” Brief for Respondents in No. 13–356, p. 28 (emphasis added). See also Reply Brief in No. 13–354, p. 8 (“RFRA incorporates the longstanding and common-sense distinction between religious organizations, which sometimes have been accorded accommodations under generally applicable laws in recognition of their accepted religious character, and for-profit corporations organized to do business in the commercial world.”).

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profits in that they use labor to make a profit, rather than to perpetuate [the] religious value[s] [shared by a community of believers].” Gilardi, 733 F. 3d, at 1242 (Edwards, J., concurring in part and dissenting in part) (emphasis deleted).
Citing Braunfeld v. Brown, 366 U. S. 599 (1961), the Court questions why, if “a sole proprietorship that seeks to make a profit may assert a free-exercise claim, [Hobby Lobby and Conestoga] can’t . . . do the same?” Ante, at 22 (footnote omitted). See also ante, at 16–17. But even accepting, arguendo, the premise that unincorporated business enterprises may gain religious accommodations under the Free Exercise Clause, the Court’s conclusion is unsound. In a sole proprietorship, the business and its owner are one and the same. By incorporating a business, however, an individual separates herself from the entity and escapes personal responsibility for the entity’s obligations. One might ask why the separation should hold only when it serves the interest of those who control the corporation. In any event, Braunfeld is hardly impressive authority for the entitlement Hobby Lobby and Conestoga seek. The free exercise claim asserted there was promptly rejected on the merits.
The Court’s determination that RFRA extends to forprofit corporations is bound to have untoward effects. Although the Court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private.19 Little doubt that RFRA
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19 The Court does not even begin to explain how one might go about ascertaining the religious scruples of a corporation where shares are sold to the public. No need to speculate on that, the Court says, for “it seems unlikely” that large corporations “will often assert RFRA claims.” Ante, at 29. Perhaps so, but as Hobby Lobby’s case demonstrates, such claims are indeed pursued by large corporations, employing thousands of persons of different faiths, whose ownership is not diffuse. “Closely held” is not synonymous with “small.” Hobby Lobby is

20

BURWELL v. HOBBY LOBBY STORES, INC.

GINSBURG, J., dissenting
claims will proliferate, for the Court’s expansive notion of corporate personhood—combined with its other errors in construing RFRA—invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith.
2
Even if Hobby Lobby and Conestoga were deemed RFRA “person[s],” to gain an exemption, they must demonstrate that the contraceptive coverage requirement “substantially burden[s] [their] exercise of religion.” 42 U. S. C. §2000bb–1(a). Congress no doubt meant the modifier “substantially” to carry weight. In the original draft of RFRA, the word “burden” appeared unmodified. The word “substantially” was inserted pursuant to a clarifying amendment offered by Senators Kennedy and Hatch. See
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hardly the only enterprise of sizable scale that is family owned or closely held. For example, the family-owned candy giant Mars, Inc., takes in $33 billion in revenues and has some 72,000 employees, and closely held Cargill, Inc., takes in more than $136 billion in revenues and employs some 140,000 persons. See Forbes, America’s Largest Private Companies 2013, available at http://www.forbes.com/ largest-private-companies/.
Nor does the Court offer any instruction on how to resolve the disputes that may crop up among corporate owners over religious values and accommodations. The Court is satisfied that “[s]tate corporate law provides a ready means for resolving any conflicts,” ante, at 30, but the authorities cited in support of that proposition are hardly helpful. See Del. Code Ann., Tit. 8, §351 (2011) (certificates of incorporation may specify how the business is managed); 1 J. Cox & T. Hazen, Treatise on the Law of Corporations §3:2 (3d ed. 2010) (section entitled “Selecting the state of incorporation”); id., §14:11 (observing that “[d]espite the frequency of dissension and deadlock in close corporations, in some states neither legislatures nor courts have provided satisfactory solutions”). And even if a dispute settlement mechanism is in place, how is the arbiter of a religion-based intracorporate controversy to resolve the disagreement, given this Court’s instruction that “courts have no business addressing [whether an asserted religious belief] is substantial,” ante, at 36?

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139 Cong. Rec. 26180. In proposing the amendment, Senator Kennedy stated that RFRA, in accord with the Court’s pre-Smith case law, “does not require the Government to justify every action that has some effect on religious exercise.” Ibid.
The Court barely pauses to inquire whether any burden imposed by the contraceptive coverage requirement is substantial. Instead, it rests on the Greens’ and Hahns’ “belie[f ] that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage.” Ante, at 36.20 I agree with the Court that the Green and Hahn families’ religious convictions regarding contraception are sincerely held. See Thomas, 450 U. S., at 715 (courts are not to question where an individual “dr[aws] the line” in defining which practices run afoul of her religious beliefs). See also 42 U. S. C. §§2000bb–1(a), 2000bb–2(4), 2000cc–5(7)(A).21 But those beliefs, however deeply held, do not suffice to sustain a RFRA claim. RFRA, properly understood, distinguishes between “factual allegations that [plaintiffs’]
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20 The Court dismisses the argument, advanced by some amici, that the $2,000-per-employee tax charged to certain employers that fail to provide health insurance is less than the average cost of offering health insurance, noting that the Government has not provided the statistics that could support such an argument. See ante, at 32–34. The Court overlooks, however, that it is not the Government’s obligation to prove that an asserted burden is insubstantial. Instead, it is incumbent upon plaintiffs to demonstrate, in support of a RFRA claim, the substantiality of the alleged burden.
21 The Court levels a criticism that is as wrongheaded as can be. In no way does the dissent “tell the plaintiffs that their beliefs are flawed.” Ante, at 37. Right or wrong in this domain is a judgment no Member of this Court, or any civil court, is authorized or equipped to make. What the Court must decide is not “the plausibility of a religious claim,” ante, at 37 (internal quotation marks omitted), but whether accommodating that claim risks depriving others of rights accorded them by the laws of the United States. See supra, at 7–8; infra, at 27.

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BURWELL v. HOBBY LOBBY STORES, INC.

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beliefs are sincere and of a religious nature,” which a court must accept as true, and the “legal conclusion . . . that [plaintiffs’] religious exercise is substantially burdened,” an inquiry the court must undertake. Kaemmerling v. Lappin, 553 F. 3d 669, 679 (CADC 2008).
That distinction is a facet of the pre-Smith jurisprudence RFRA incorporates. Bowen v. Roy, 476 U. S. 693 (1986), is instructive. There, the Court rejected a free exercise challenge to the Government’s use of a Native American child’s Social Security number for purposes of administering benefit programs. Without questioning the sincerity of the father’s religious belief that “use of [his daughter’s Social Security] number may harm [her] spirit,” the Court concluded that the Government’s internal uses of that number “place[d] [no] restriction on what [the father] may believe or what he may do.” Id., at 699. Recognizing that the father’s “religious views may not accept” the position that the challenged uses concerned only the Government’s internal affairs, the Court explained that “for the adjudication of a constitutional claim, the Constitution, rather than an individual’s religion, must supply the frame of reference.” Id., at 700–701, n. 6. See also Hernandez v. Commissioner, 490 U. S. 680, 699 (1989) (distinguishing between, on the one hand, “question[s] [of] the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds,” and, on the other, “whether the alleged burden imposed [by the challenged government action] is a substantial one”). Inattentive to this guidance, today’s decision elides entirely the distinction between the sincerity of a challenger’s religious belief and the substantiality of the burden placed on the challenger.
Undertaking the inquiry that the Court forgoes, I would conclude that the connection between the families’ religious objections and the contraceptive coverage requirement is too attenuated to rank as substantial. The re-

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quirement carries no command that Hobby Lobby or Conestoga purchase or provide the contraceptives they find objectionable. Instead, it calls on the companies covered by the requirement to direct money into undifferentiated funds that finance a wide variety of benefits under comprehensive health plans. Those plans, in order to comply with the ACA, see supra, at 3–6, must offer contraceptive coverage without cost sharing, just as they must cover an array of other preventive services.
Importantly, the decisions whether to claim benefits under the plans are made not by Hobby Lobby or Conestoga, but by the covered employees and dependents, in consultation with their health care providers. Should an employee of Hobby Lobby or Conestoga share the religious beliefs of the Greens and Hahns, she is of course under no compulsion to use the contraceptives in question. But “[n]o individual decision by an employee and her physician—be it to use contraception, treat an infection, or have a hip replaced—is in any meaningful sense [her employer’s] decision or action.” Grote v. Sebelius, 708 F. 3d 850, 865 (CA7 2013) (Rovner, J., dissenting). It is doubtful that Congress, when it specified that burdens must be “substantia[l],” had in mind a linkage thus interrupted by independent decisionmakers (the woman and her health counselor) standing between the challenged government action and the religious exercise claimed to be infringed. Any decision to use contraceptives made by a woman covered under Hobby Lobby’s or Conestoga’s plan will not be propelled by the Government, it will be the woman’s autonomous choice, informed by the physician she consults.
3
Even if one were to conclude that Hobby Lobby and Conestoga meet the substantial burden requirement, the Government has shown that the contraceptive coverage

24

BURWELL v. HOBBY LOBBY STORES, INC.

GINSBURG, J., dissenting
for which the ACA provides furthers compelling interests in public health and women’s well being. Those interests are concrete, specific, and demonstrated by a wealth of empirical evidence. To recapitulate, the mandated contraception coverage enables women to avoid the health problems unintended pregnancies may visit on them and their children. See IOM Report 102–107. The coverage helps safeguard the health of women for whom pregnancy may be hazardous, even life threatening. See Brief for American College of Obstetricians and Gynecologists et al. as Amici Curiae 14–15. And the mandate secures benefits wholly unrelated to pregnancy, preventing certain cancers, menstrual disorders, and pelvic pain. Brief for Ovarian Cancer National Alliance et al. as Amici Curiae 4, 6–7, 15– 16; 78 Fed. Reg. 39872 (2013); IOM Report 107.
That Hobby Lobby and Conestoga resist coverage for only 4 of the 20 FDA-approved contraceptives does not lessen these compelling interests. Notably, the corporations exclude intrauterine devices (IUDs), devices significantly more effective, and significantly more expensive than other contraceptive methods. See id., at 105.22 Moreover, the Court’s reasoning appears to permit commercial enterprises like Hobby Lobby and Conestoga to exclude from their group health plans all forms of contraceptives. See Tr. of Oral Arg. 38–39 (counsel for Hobby Lobby acknowledged that his “argument . . . would apply just as well if the employer said ‘no contraceptives’ ” (internal quotation marks added)).
Perhaps the gravity of the interests at stake has led the
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22 IUDs, which are among the most reliable forms of contraception, generally cost women more than $1,000 when the expenses of the office visit and insertion procedure are taken into account. See Eisenberg, McNicholas, & Peipert, Cost as a Barrier to Long-Acting Reversible Contraceptive (LARC) Use in Adolescents, 52 J. Adolescent Health S59, S60 (2013). See also Winner et al., Effectiveness of Long-Acting Reversible Contraception, 366 New Eng. J. Medicine 1998, 1999 (2012).

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Court to assume, for purposes of its RFRA analysis, that the compelling interest criterion is met in these cases. See ante, at 40.23 It bears note in this regard that the cost of an IUD is nearly equivalent to a month’s full-time pay for workers earning the minimum wage, Brief for Guttmacher Institute et al. as Amici Curiae 16; that almost one-third of women would change their contraceptive method if costs were not a factor, Frost & Darroch, Factors Associated With Contraceptive Choice and Inconsistent Method Use, United States, 2004, 40 Perspectives on Sexual & Reproductive Health 94, 98 (2008); and that only one-fourth of women who request an IUD actually have one inserted after finding out how expensive it would be, Gariepy, Simon, Patel, Creinin, & Schwarz, The Impact of Out-ofPocket Expense on IUD Utilization Among Women With Private Insurance, 84 Contraception e39, e40 (2011). See also Eisenberg, supra, at S60 (recent study found that women who face out-of-pocket IUD costs in excess of $50 were “11-times less likely to obtain an IUD than women who had to pay less than $50”); Postlethwaite, Trussell, Zoolakis, Shabear, & Petitti, A Comparison of Contraceptive Procurement Pre- and Post-Benefit Change, 76 Contraception 360, 361–362 (2007) (when one health system eliminated patient cost sharing for IUDs, use of this form of contraception more than doubled).
Stepping back from its assumption that compelling interests support the contraceptive coverage requirement, the Court notes that small employers and grandfathered plans are not subject to the requirement. If there is a compelling interest in contraceptive coverage, the Court
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23 Although the Court’s opinion makes this assumption grudgingly, see ante, at 39–40, one Member of the majority recognizes, without reservation, that “the [contraceptive coverage] mandate serves the Government’s compelling interest in providing insurance coverage that is necessary to protect the health of female employees.” Ante, at 2 (opinion of KENNEDY, J.).

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BURWELL v. HOBBY LOBBY STORES, INC.

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suggests, Congress would not have created these exclusions. See ante, at 39–40.
Federal statutes often include exemptions for small employers, and such provisions have never been held to undermine the interests served by these statutes. See, e.g., Family and Medical Leave Act of 1993, 29 U. S. C. §2611(4)(A)(i) (applicable to employers with 50 or more employees); Age Discrimination in Employment Act of 1967, 29 U. S. C. §630(b) (originally exempting employers with fewer than 50 employees, 81 Stat. 605, the statute now governs employers with 20 or more employees); Americans With Disabilities Act, 42 U. S. C. §12111(5)(A) (applicable to employers with 15 or more employees); Title VII, 42 U. S. C. §2000e(b) (originally exempting employers with fewer than 25 employees, see Arbaugh v. Y & H Corp., 546 U. S. 500, 505, n. 2 (2006), the statute now governs employers with 15 or more employees).
The ACA’s grandfathering provision, 42 U. S. C. §18011, allows a phasing-in period for compliance with a number of the Act’s requirements (not just the contraceptive coverage or other preventive services provisions). Once specified changes are made, grandfathered status ceases. See 45 CFR §147.140(g). Hobby Lobby’s own situation is illustrative. By the time this litigation commenced, Hobby Lobby did not have grandfathered status. Asked why by the District Court, Hobby Lobby’s counsel explained that the “grandfathering requirements mean that you can’t make a whole menu of changes to your plan that involve things like the amount of co-pays, the amount of coinsurance, deductibles, that sort of thing.” App. in No. 13– 354, pp. 39–40. Counsel acknowledged that, “just because of economic realities, our plan has to shift over time. I mean, insurance plans, as everyone knows, shif[t] over time.” Id., at 40.24 The percentage of employees in grand-
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24 Hobby Lobby’s amicus National Religious Broadcasters similarly

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fathered plans is steadily declining, having dropped from 56% in 2011 to 48% in 2012 to 36% in 2013. Kaiser Family Foundation & Health Research & Educ. Trust, Employer Benefits 2013 Annual Survey 7, 196. In short, far from ranking as a categorical exemption, the grandfathering provision is “temporary, intended to be a means for gradually transitioning employers into mandatory coverage.” Gilardi, 733 F. 3d, at 1241 (Edwards, J., concurring in part and dissenting in part).
The Court ultimately acknowledges a critical point: RFRA’s application “must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.” Ante, at 42, n. 37 (quoting Cutter v. Wil­ kinson, 544 U. S. 709, 720 (2005); emphasis added). No tradition, and no prior decision under RFRA, allows a religion-based exemption when the accommodation would be harmful to others—here, the very persons the contraceptive coverage requirement was designed to protect. Cf. supra, at 7–8; Prince v. Massachusetts, 321 U. S. 158, 177 (1944) (Jackson, J., dissenting) (“[The] limitations which of necessity bound religious freedom . . . begin to operate whenever activities begin to affect or collide with liberties of others or of the public.”).
4
After assuming the existence of compelling government interests, the Court holds that the contraceptive coverage requirement fails to satisfy RFRA’s least restrictive means test. But the Government has shown that there is no less restrictive, equally effective means that would both (1) satisfy the challengers’ religious objections to providing
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states that, “[g]iven the nature of employers’ needs to meet changing economic and staffing circumstances, and to adjust insurance coverage accordingly, the actual benefit of the ‘grandfather’ exclusion is de minimis and transitory at best.” Brief for National Religious Broadcasters as Amicus Curiae in No. 13–354, p. 28.

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GINSBURG, J., dissenting
insurance coverage for certain contraceptives (which they believe cause abortions); and (2) carry out the objective of the ACA’s contraceptive coverage requirement, to ensure that women employees receive, at no cost to them, the preventive care needed to safeguard their health and well being. A “least restrictive means” cannot require employees to relinquish benefits accorded them by federal law in order to ensure that their commercial employers can adhere unreservedly to their religious tenets. See supra, at 7–8, 27.25
Then let the government pay (rather than the employees who do not share their employer’s faith), the Court suggests. “The most straightforward [alternative],” the Court asserts, “would be for the Government to assume the cost of providing . . . contraceptives . . . to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections.” Ante, at 41. The ACA, however, requires coverage of preventive services through the existing employer-based system of health insurance “so that [employees] face minimal logistical and administrative obstacles.” 78 Fed. Reg. 39888. Impeding women’s receipt of benefits “by requiring them to take steps to learn about, and to sign up for, a new [government funded and administered] health benefit” was scarcely what Congress contemplated. Ibid. Moreover, Title X of the Public Health Service Act, 42 U. S. C. §300 et seq., “is the nation’s only dedicated source of federal
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25 As the Court made clear in Cutter, the government’s license to grant religion-based exemptions from generally applicable laws is constrained by the Establishment Clause. 544 U. S., at 720–722. “[W]e are a cosmopolitan nation made up of people of almost every conceivable religious preference,” Braunfeld, 366 U. S., at 606, a “rich mosaic of religious faiths,” Town of Greece v. Galloway, 572 U. S. ___, ___ (2014) (KAGAN, J., dissenting) (slip op., at 15). Consequently, one person’s right to free exercise must be kept in harmony with the rights of her fellow citizens, and “some religious practices [must] yield to the common good.” United States v. Lee, 455 U. S. 252, 259 (1982).

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funding for safety net family planning services.” Brief for National Health Law Program et al. as Amici Curiae 23. “Safety net programs like Title X are not designed to absorb the unmet needs of . . . insured individuals.” Id., at 24. Note, too, that Congress declined to write into law the preferential treatment Hobby Lobby and Conestoga describe as a less restrictive alternative. See supra, at 6.
And where is the stopping point to the “let the government pay” alternative? Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage, see Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U. S. 290, 303 (1985), or according women equal pay for substantially similar work, see Dole v. Shenandoah Baptist Church, 899 F. 2d 1389, 1392 (CA4 1990)? Does it rank as a less restrictive alternative to require the government to provide the money or benefit to which the employer has a religion-based objection?26 Because the Court cannot easily answer that question, it proposes something else: Extension to commercial enterprises of the accommodation already afforded to nonprofit religion-based organizations. See ante, at 3–4, 9–10, 43–45. “At a minimum,” according to the Court, such an approach would not “impinge on [Hobby Lobby’s and Conestoga’s] religious belief.” Ante, at 44. I have already discussed the “special solicitude” generally accorded nonprofit religion-based organizations that exist to serve a community of believers, solicitude never before accorded to commercial enterprises comprising employees of diverse faiths. See supra, at 14–17.
Ultimately, the Court hedges on its proposal to align forprofit enterprises with nonprofit religion-based organiza-
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26 Cf. Ashcroft v. American Civil Liberties Union, 542 U. S. 656, 666 (2004) (in context of First Amendment Speech Clause challenge to a content-based speech restriction, courts must determine “whether the challenged regulation is the least restrictive means among available, effective alternatives” (emphasis added)).

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tions. “We do not decide today whether [the] approach [the opinion advances] complies with RFRA for purposes of all religious claims.” Ante, at 44. Counsel for Hobby Lobby was similarly noncommittal. Asked at oral argument whether the Court-proposed alternative was acceptable,27 counsel responded: “We haven’t been offered that accommodation, so we haven’t had to decide what kind of objection, if any, we would make to that.” Tr. of Oral Arg. 86–87.
Conestoga suggests that, if its employees had to acquire and pay for the contraceptives (to which the corporation objects) on their own, a tax credit would qualify as a less restrictive alternative. See Brief for Petitioners in No. 13– 356, p. 64. A tax credit, of course, is one variety of “let the government pay.” In addition to departing from the existing employer-based system of health insurance, Conestoga’s alternative would require a woman to reach into her own pocket in the first instance, and it would do nothing for the woman too poor to be aided by a tax credit.
In sum, in view of what Congress sought to accomplish,
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27 On brief, Hobby Lobby and Conestoga barely addressed the extension solution, which would bracket commercial enterprises with nonprofit religion-based organizations for religious accommodations purposes. The hesitation is understandable, for challenges to the adequacy of the accommodation accorded religious nonprofit organizations are currently sub judice. See, e.g., Little Sisters of the Poor Home for the Aged v. Sebelius, ___ F. Supp. 2d ___, 2013 WL 6839900 (Colo., Dec. 27, 2013), injunction pending appeal granted, 571 U. S. ___ (2014). At another point in today’s decision, the Court refuses to consider an argument neither “raised below [nor] advanced in this Court by any party,” giving Hobby Lobby and Conestoga “[no] opportunity to respond to [that] novel claim.” Ante, at 33. Yet the Court is content to decide this case (and this case only) on the ground that HHS could make an accommodation never suggested in the parties’ presentations. RFRA cannot sensibly be read to “requir[e] the government to . . . refute each and every conceivable alternative regulation,” United States v. Wilgus, 638 F. 3d 1274, 1289 (CA10 2011), especially where the alternative on which the Court seizes was not pressed by any challenger.

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i.e., comprehensive preventive care for women furnished through employer-based health plans, none of the proffered alternatives would satisfactorily serve the compelling interests to which Congress responded.
IV
Among the pathmarking pre-Smith decisions RFRA preserved is United States v. Lee, 455 U. S. 252 (1982). Lee, a sole proprietor engaged in farming and carpentry, was a member of the Old Order Amish. He sincerely believed that withholding Social Security taxes from his employees or paying the employer’s share of such taxes would violate the Amish faith. This Court held that, although the obligations imposed by the Social Security system conflicted with Lee’s religious beliefs, the burden was not unconstitutional. Id., at 260–261. See also id., at 258 (recognizing the important governmental interest in providing a “nationwide . . . comprehensive insurance system with a variety of benefits available to all participants, with costs shared by employers and employees”).28 The Government urges that Lee should control the challenges brought by Hobby Lobby and Conestoga. See Brief for Respondents in No. 13–356, p. 18. In contrast, today’s Court dismisses Lee as a tax case. See ante, at 46–47. Indeed, it was a tax case and the Court in Lee homed in on “[t]he difficulty in attempting to accommodate religious beliefs in the area of taxation.” 455 U. S., at 259.
But the Lee Court made two key points one cannot confine to tax cases. “When followers of a particular sect enter into commercial activity as a matter of choice,” the Court observed, “the limits they accept on their own conduct as a matter of conscience and faith are not to be
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28 As a sole proprietor, Lee was subject to personal liability for violating the law of general application he opposed. His claim to a religionbased exemption would have been even thinner had he conducted his business as a corporation, thus avoiding personal liability.

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superimposed on statutory schemes which are binding on others in that activity.” Id., at 261. The statutory scheme of employer-based comprehensive health coverage involved in these cases is surely binding on others engaged in the same trade or business as the corporate challengers here, Hobby Lobby and Conestoga. Further, the Court recognized in Lee that allowing a religion-based exemption to a commercial employer would “operat[e] to impose the employer’s religious faith on the employees.” Ibid.29 No doubt the Greens and Hahns and all who share their beliefs may decline to acquire for themselves the contraceptives in question. But that choice may not be imposed on employees who hold other beliefs. Working for Hobby Lobby or Conestoga, in other words, should not deprive employees of the preventive care available to workers at the shop next door,30 at least in the absence of directions from the Legislature or Administration to do so.
Why should decisions of this order be made by Congress or the regulatory authority, and not this Court? Hobby Lobby and Conestoga surely do not stand alone as commercial enterprises seeking exemptions from generally applicable laws on the basis of their religious beliefs. See, e.g., Newman v. Piggie Park Enterprises, Inc., 256 F. Supp.
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29 Congress amended the Social Security Act in response to Lee. The amended statute permits Amish sole proprietors and partnerships (but not Amish-owned corporations) to obtain an exemption from the obligation to pay Social Security taxes only for employees who are coreligionists and who likewise seek an exemption and agree to give up their Social Security benefits. See 26 U. S. C. §3127(a)(2), (b)(1). Thus, employers with sincere religious beliefs have no right to a religionbased exemption that would deprive employees of Social Security benefits without the employee’s consent—an exemption analogous to the one Hobby Lobby and Conestoga seek here.
30 Cf. Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U. S. 290, 299 (1985) (disallowing religion-based exemption that “would undoubtedly give [the commercial enterprise seeking the exemption] and similar organizations an advantage over their competitors”).

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941, 945 (SC 1966) (owner of restaurant chain refused to serve black patrons based on his religious beliefs opposing racial integration), aff ’d in relevant part and rev’d in part on other grounds, 377 F. 2d 433 (CA4 1967), aff ’d and modified on other grounds, 390 U. S. 400 (1968); In re Minnesota ex rel. McClure, 370 N. W. 2d 844, 847 (Minn. 1985) (born-again Christians who owned closely held, forprofit health clubs believed that the Bible proscribed hiring or retaining an “individua[l] living with but not married to a person of the opposite sex,” “a young, single woman working without her father’s consent or a married woman working without her husband’s consent,” and any person “antagonistic to the Bible,” including “fornicators and homosexuals” (internal quotation marks omitted)), appeal dismissed, 478 U. S. 1015 (1986); Elane Photog­ raphy, LLC v. Willock, 2013–NMSC–040, ___ N. M. ___, 309 P. 3d 53 (for-profit photography business owned by a husband and wife refused to photograph a lesbian couple’s commitment ceremony based on the religious beliefs of the company’s owners), cert. denied, 572 U. S. ___ (2014). Would RFRA require exemptions in cases of this ilk? And if not, how does the Court divine which religious beliefs are worthy of accommodation, and which are not? Isn’t the Court disarmed from making such a judgment given its recognition that “courts must not presume to determine . . . the plausibility of a religious claim”? Ante, at 37.
Would the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian

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GINSBURG, J., dissenting
Scientists, among others)?31 According to counsel for Hobby Lobby, “each one of these cases . . . would have to be evaluated on its own . . . apply[ing] the compelling interest-least restrictive alternative test.” Tr. of Oral Arg. 6. Not much help there for the lower courts bound by today’s decision.
The Court, however, sees nothing to worry about. Today’s cases, the Court concludes, are “concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.” Ante, at 46. But the Court has assumed, for RFRA purposes, that the interest in women’s health and well being is compelling and has come up with no means adequate to serve that interest, the one motivating Congress to adopt the Women’s Health Amendment.
There is an overriding interest, I believe, in keeping the courts “out of the business of evaluating the relative merits of differing religious claims,” Lee, 455 U. S., at 263, n. 2 (Stevens, J., concurring in judgment), or the sincerity with which an asserted religious belief is held. Indeed, approving some religious claims while deeming others unworthy of accommodation could be “perceived as favoring one religion over another,” the very “risk the Establishment Clause was designed to preclude.” Ibid. The Court, I fear,
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31 Religious objections to immunization programs are not hypothetical. See Phillips v. New York, ___ F. Supp. 2d ___, 2014 WL 2547584 (EDNY, June 5, 2014) (dismissing free exercise challenges to New York’s vaccination practices); Liberty Counsel, Compulsory Vaccinations Threaten Religious Freedom (2007), available at http://www.lc.org/ media/9980/attachments/memo_vaccination.pdf.

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has ventured into a minefield, cf. Spencer v. World Vision, Inc., 633 F. 3d 723, 730 (CA9 2010) (O’Scannlain, J., concurring), by its immoderate reading of RFRA. I would confine religious exemptions under that Act to organizations formed “for a religious purpose,” “engage[d] primarily in carrying out that religious purpose,” and not “engaged . . . substantially in the exchange of goods or services for money beyond nominal amounts.” See id., at 748 (Kleinfeld, J., concurring).
* * *
For the reasons stated, I would reverse the judgment of the Court of Appeals for the Tenth Circuit and affirm the judgment of the Court of Appeals for the Third Circuit.

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BREYER and KAGAN, JJ., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 13–354 and 13–356
_________________

SYLVIA BURWELL, SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL., PETITIONERS

13–354

v.

HOBBY LOBBY STORES, INC., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

AND

CONESTOGA WOOD SPECIALTIES CORPORATION

ET AL., PETITIONERS

13–356

v.

SYLVIA BURWELL, SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
[June 30, 2014]

JUSTICE BREYER and JUSTICE KAGAN, dissenting.
We agree with JUSTICE GINSBURG that the plaintiffs’ challenge to the contraceptive coverage requirement fails on the merits. We need not and do not decide whether either for-profit corporations or their owners may bring claims under the Religious Freedom Restoration Act of 1993. Accordingly, we join all but Part III–C–1 of JUSTICE GINSBURG’s dissenting opinion.