Case 1:12-cv-03489-WSD Document 21 Filed 12/31/12 Page 1 of 72

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

THE ROMAN CATHOLIC

ARCHDIOCESE OF ATLANTA, an

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association of churches and schools, THE

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MOST REVEREND WILTON D.

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GREGORY, and his successors, Archbishop )

of THE ROMAN CATHOLIC

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ARCHDIOCESE OF ATLANTA; CHRIST )

THE KING CATHOLIC SCHOOL;

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CATHOLIC CHARITIES OF THE

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ARCHDIOCESE OF ATLANTA, INC., a )

Georgia non-profit corporation; THE

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ROMAN CATHOLIC DIOCESE OF

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SAVANNAH, an ecclesiastical territory, and )

THE MOST REVEREND JOHN

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HARTMAYER, and his successors, Bishop )

of THE ROMAN CATHOLIC DIOCESE )

OF SAVANNAH,

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Plaintiffs,

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v.

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KATHLEEN SEBELIUS, in her official

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capacity as Secretary of the U.S. Department )

of Health and Human Services; HILDA

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SOLIS, in her official capacity as Secretary )

of the U.S. Department of Labor,

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TIMOTHY GEITHNER, in his official

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capacity as Secretary of the U.S. Department )

of Treasury; U.S. DEPARTMENT OF

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HEALTH AND HUMAN SERVICES; U.S. )

DEPARTMENT OF LABOR; and U.S.

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DEPARTMENT OF TREASURY,

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Defendants.

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CIVIL ACTION NO.: 03489-WSD

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FIRST AMENDED AND RECAST COMPLAINT Pursuant to Fed. R. Civ. P. Rule 15(a)(1)(B), Plaintiffs hereby submit their First Amended and Recast Complaint, which shall substitute for and supersede Plaintiffs’ original Complaint in this action (Doc 1), and state as follows: 1. This lawsuit is brought to vindicate one of America’s most fundamental freedoms: the freedom to practice one’s religion without governmental interference. The United States Government (the “Government”) is attempting to force Plaintiffs—all Catholic entities—to provide, pay for, and/or facilitate access to abortion-inducing drugs, sterilization, and contraception in violation of their sincerely held religious beliefs. Plaintiffs acknowledge that individuals in this country have a legal right to these medical services; they are, and will continue to be, freely available in the United States, and nothing prevents the Government itself from making them more widely available. But the right to such services does not authorize the Government to co-opt religious entities like Plaintiffs into providing or facilitating access to them. Indeed, American history and tradition, embodied in the First Amendment to the United States Constitution and the Religious Freedom Restoration Act, codified at 42 U.S.C. § 2000bb et seq. (“RFRA”), prohibit just this sort of overbearing and oppressive governmental
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action. Plaintiffs therefore seek relief in this Court to protect this most cherished of American rights.
2. Plaintiffs are Catholic religious entities that provide a wide range of spiritual, educational, social and medical services to residents, both Catholic and non-Catholic alike, throughout the State of Georgia.
3. The Roman Catholic Archdiocese of Atlanta (the “Atlanta Archdiocese”) is an association of those Roman Catholic parishes and organizations located in the 69 counties in northern Georgia under the pastoral care of the Most Reverend Wilton D. Gregory (“Archbishop Gregory”), and his successors in office. The Atlanta Archdiocese carries out its mission directly, through the work of affiliated Catholic entities and associations, and through the education of students in 18 Catholic schools operated by and within the Atlanta Archdiocese, including Plaintiff Christ the King Catholic School (“Christ the King School”).
4. Plaintiff Catholic Charities of the Archdiocese of Atlanta, Inc. (“Catholic Charities”), a nonprofit Georgia corporation headquartered in Atlanta, Georgia, with five regional offices located throughout northern Georgia, is a charitable organization committed to providing “an advocate and friend for individuals and families facing adversity.” Catholic Charities provides “a holistic
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combination of accredited social services—life skills education, counseling, family stabilization, and immigration legal services—that remove barriers to selfsufficiency and wholeness.” Catholic Charities serves its neighbors in multiple languages, and regardless of background.
5. Plaintiff the Catholic Diocese of Savannah (the “Diocese of Savannah”) is a religious association of parishes and schools inclusive of those Roman Catholic parishes and organizations located in 90 counties in south Georgia under the pastoral care of the Most Reverend John Hartmayer (“Bishop Hartmayer”), Bishop of the Roman Catholic Diocese of Savannah and his successors in office. The Diocese of Savannah carries out its mission directly, through the work of affiliated Catholic entities and associations, and through the education of students in its Catholic schools.
6. Plaintiffs’ work is in every respect guided by and consistent with Roman Catholic beliefs. Among those beliefs is the requirement to serve those in need, regardless of their religion. This is perhaps best captured by words attributed to St. Francis of Assisi: “Preach the Gospel at all times. Use words if necessary.” As Pope Benedict stated: “love for widows and orphans, prisoners, and the sick and needy of every kind, is as essential to [the Catholic Church] as the ministry of the sacraments and preaching of the Gospel. The Church cannot neglect the
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service of charity any more than she can neglect the Sacraments and the Word.” Pope Benedict XVI, Deus Caritas Est ¶ 22 (2006).
7. Plaintiffs address the needs of Georgia residents in numerous different ways. The Atlanta Archdiocese and the Diocese of Savannah serve families through the education of the students attending their Catholic school systems, which are devoted to teaching a religiously and ethnically diverse student body. Both provide charitable service statewide through dozens of programs undertaken by their respective parishes.
8. Catholic belief includes the firm conviction that sexual union should be reserved to married couples who are so committed to each other that they are open to the creation of life. Thus, artificial interference with the creation of life, including through abortion, sterilization, or contraception, is contrary to core Catholic doctrine.
9. Defendants have promulgated various rules (collectively, “the U.S. Government Mandate”), as part of the 2010 Patient Protection and Affordable Care Act (the “Affordable Care Act” or the “Act”), that would require many Catholic and other religious organizations to provide health plans to their employees that include and/or facilitate coverage for abortion-inducing drugs, sterilization,
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contraception, and related counseling services, in violation of their sincerely held religious beliefs.
10. The U.S. Government Mandate is subject to a narrow exemption (the “Exemption”) for certain “religious employers” who can convince the Government that they satisfy four criteria:
● “The inculcation of religious values is the purpose of the organization”;
● “The organization primarily employs persons who share the religious tenets of the organization”;
● “The organization primarily serves persons who share the religious tenets of the organization”; and
● “The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.”
Unlike broader religious exemptions available under other federal laws, the Exemption forces religious employers to seek a determination from a government bureaucrat that they are sufficiently “religious” before they can exercise their religious freedoms.
11. Because of the narrow and vague terms of the Exemption, as well as the arbitrary and discretionary nature of the determination it calls for, the Atlanta Archdiocese and the Diocese of Savannah do not know whether they qualify for the Exemption or whether the Government will conclude that they do. Before they
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can find out, they must submit to an intrusive and arbitrary governmental investigation into whether, in the discretionary view of the Government, their “purpose” is the “inculcation of religious values”; whether they “primarily” employ “persons who share [their] religious tenets” (even though they do not consider religious affiliation in hiring for most positions); and whether they “primarily” serve such people (even though their schools and programs are open to those of all faiths). Regardless of outcome, Plaintiffs strongly object to such an intrusive, arbitrary and misguided governmental investigation into their religious missions.
12. The Exemption’s narrow definition of “religious employer” likely excludes Catholic Charities and Christ the King School, even though they are “religious” organizations under any reasonable definition, because they do not “primarily employ” or “primarily serve” only Catholics. Consequently, to attempt to qualify as a “religious employer,” these Plaintiffs may be required to stop providing educational opportunities to non-Catholics throughout Georgia, stop serving non-Catholics in the State, and fire all non-Catholic employees—actions that would run counter to their Catholic faith and commitment to serve all in need without regard to religion.
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13. Because Plaintiffs provide their services to persons in need without regard to religious affiliation, and do not consider religious affiliation in hiring for most positions, each of the Plaintiffs is unclear as to whether it qualifies as a “religious employer” under the Exemption.
14. The U.S. Government Mandate and its purported Exemption are irreconcilable with the First Amendment, RFRA, and other laws. The Government has not shown any compelling interest in forcing Plaintiffs to provide, pay for, and/or facilitate access to abortion-inducing drugs, sterilization, and contraception, or for requiring Plaintiffs to submit to an intrusive and discretionary governmental examination of their religious missions. Nor has the Government shown that the U.S. Government Mandate is narrowly tailored to advance the Government’s interest in ensuring access to these services, given that such services are already widely available and nothing prevents the Government from providing or paying for them directly through a duly enacted law. The Government, therefore, cannot justify its decision to force Plaintiffs to provide, pay for, and/or facilitate access to these services in violation of Plaintiffs’ sincerely held religious beliefs.
15. Accordingly, Plaintiffs respectfully request that the Court enter an order declaring that the U.S. Government Mandate is contrary to the First Amendment, RFRA, and the Administrative Procedure Act (“APA”), and therefore
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invalid. Plaintiffs further request that this Court enjoin Defendants from enforcing the U.S. Government Mandate against Plaintiffs.
THE PARTIES ARCHBISHOP GREGORY AND THE ATLANTA ARCHDIOCESE 16. The Atlanta Archdiocese is an unincorporated association of 99 parishes and 18 Catholic schools, with its principal place of business in Smyrna, Georgia. It is organized exclusively for charitable, religious, and educational purposes under Section 501(c)(3) of the Internal Revenue Code (“IRC”). 17. Archbishop Gregory, in his capacity as Archbishop of the Atlanta Archdiocese, is responsible for serving more than 900,000 Catholics residing throughout 69 counties in northern Georgia. Originally established in 1956 by a division of the Diocese of Savannah, the Atlanta Archdiocese was elevated to the rank of archdiocese on February 10, 1962. 18. Archbishop Gregory is assisted in his ministry by a staff of clergy, religious brothers and sisters, and lay people. Except where religion is a bona fide requirement for fulfilling a job requirement, the Atlanta Archdiocese imposes no religious litmus test on its employees and employs Catholics and non-Catholics alike.
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19. The Atlanta Archdiocese carries out a tripartite spiritual, educational, and social service mission, largely through its 99 parishes. Through the ministry of its priests, the Atlanta Archdiocese ensures the regular availability of the Sacraments to all Catholics living in or visiting the northern part of Georgia.
THE ATLANTA CATHOLIC SCHOOLS 20. The Catholic Church’s teaching ministry within the Atlanta Archdiocese is conducted largely through 18 Catholic schools, including Plaintiff Christ the King School. Collectively, they serve more than 9,800 students and employ more than 1,500 full-time and 2,700 part-time teachers and administrators. 21. The Catholic schools within the Atlanta Archdiocese, including Christ the King School, welcome students of any or no faith. To serve as many children as possible, the Atlanta Archdiocese expends significant funds in tuition assistance programs. A substantial number of the students and faculty are not Catholic. 22. The Catholic schools within the Atlanta Archdiocese have established certain priorities that distinguish them from public educational institutions. They provide an education based on Christ’s teaching and Catholic values, and focus on the formation of strong moral character, the furtherance of academic excellence, the inspiration to serve others and the motivation to achieve the students’ potential in the local and the world communities. High academic standards help each
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student reach his or her potential. Nationally, 99.4% of students in Catholic high schools graduate.
CATHOLIC CHARITIES 23. Catholic Charities is a nonprofit Georgia corporation that is part of the Catholic ministry of the Atlanta Archdiocese. It is organized exclusively for charitable, religious, and educational purposes under IRC § 501(c)(3). 24. The mission of Catholic Charities is to be a faith-based advocate and friend for individuals and families facing adversity by providing multiple accredited social services that remove barriers to self-sufficiency and wholeness. Last year, Catholic Charities directly served more than 21,000 people, without regard to religious affiliation. 25. Catholic Charities serves the needy, underserved, and underprivileged in countless ways, including immigration legal services, refugee resettlement services, outpatient mental health counseling, foreclosure intervention and prevention, disaster preparedness and response education, financial literacy education, English language instruction, and marriage counseling. More than 75 professionals at Catholic Charities provide services to those in need in over 16 languages.
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26. Serving the needs of women and children is a priority of Catholic Charities. It operates numerous programs for new and prospective mothers, including in-home parenting education, pregnancy support services, post-adoption services, and play therapy for children. The pregnancy support counselors at Catholic Charities focus on the prospective mother’s emotional needs during pregnancy, and help mothers to make positive, long-term plans for the child. Last year, 46 women were counseled through the pregnancy support program, and 86% of the mothers who received counseling prior to the birth of their child actively prepared for the child by making a parenting, kinship, or adoption plan.
27. Catholic Charities provides millions of dollars in services annually (excluding administrative and fund-raising costs) for the communities it serves.
28. Catholic Charities believes “we serve God by serving our neighbor. Though ‘Catholic’ is in our name, we serve people of every faith.” It does not ask whether the people it serves are Catholic.
29. Catholic Charities maintains offices in Atlanta, Chamblee, Lilburn and Athens, Georgia. It also provides counseling services at parishes throughout northern Georgia, including parishes in Alpharetta, Conyers, Cumming, Douglasville, Lawrenceville, Marietta, Norcross, Duluth, Flowery Branch, Hapeville, Johns Creek, Peachtree City, Roswell, Sandy Springs, and Woodstock.
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The people who work at Catholic Charities are employed by the Atlanta Archdiocese, which, by agreement, shares them with Catholic Charities. Catholic Charities does not inquire about the religious commitments of its applicants for employment and does not know how many of its employees are Catholic.
BISHOP HARTMAYER AND THE DIOCESE OF SAVANNAH 30. The Diocese of Savannah is a religious association of parishes and schools, with its principal place of business located in Savannah, Georgia. It is organized exclusively for charitable, religious, and educational purposes under IRC § 501(c)(3). 31. Bishop Hartmayer, in his capacity as Bishop of the Diocese of Savannah, is responsible for 55 parishes and 24 missions in 90 counties located throughout the southern part of Georgia. The Diocese of Savannah has been serving these communities since it was established by Pope Pius IX in 1850. It currently serves a Catholic population of more than 77,000 people. 32. Since 2011, Bishop Hartmayer has overseen the multifaceted mission of delivering spiritual, educational, and social services to residents, both Catholic and non-Catholic alike, of the region. The parishes maintain their own charitable efforts and serve an indeterminate number of persons of all faiths who are homeless, hungry, elderly, or otherwise in need of material assistance. Because it
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serves people regardless of their faith, the Diocese of Savannah does not know how many of those that it serves are Catholic.
33. The Diocese of Savannah employs hundreds of people, the majority of whom are full-time employees. While most of these employees likely identify themselves as Catholic, except where religion is a bona fide requirement for the job, the Diocese does not inquire into faith for employment positions. Consequently, the Diocese does not know whether a majority of its employees share its religious tenets.
34. The Diocese of Savannah also serves the community through its Catholic schools. The Office of Catholic Schools is vested with responsibility for all of the Catholic schools within the Diocese, which include 16 elementary schools, five high schools, and various preschool programs. Collectively, these schools educate approximately 5,000 students.
35. The mission of the Diocese of Savannah Catholic Schools is to “encourage[ ] and support[ ]” students to reach the fullness of their potential spiritually, intellectually, aesthetically, emotionally, socially, and physically.” These Catholic schools offer an educational experience unlike any other in the area. As Cardinal Donald Wuerl said about Catholic education: “We educate
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people not just for exams, but for life eternal. We educate the whole person: mind, body, and spirit.”
36. Like the Catholic schools of the Atlanta Archdiocese, the Catholic schools of the Diocese of Savannah maintain high standards for academic excellence.
37. The Diocese of Savannah schools are open to and serve all children, without regard to the students’ religion, race or financial condition. To make a Catholic education available to as many children as possible, the Diocese of Savannah expends substantial funds in tuition assistance programs. Approximately one-third of the students who attend the Catholic schools of the Diocese of Savannah are not Catholic, and approximately one-quarter of them are minorities.
38. The Diocese of Savannah schools do not consider religious affiliation in hiring for most positions. While the Diocese does not know exactly how many teachers in its schools are Catholic, it is likely that a substantial percentage of the Diocese’s teachers do not share its religious tenets.
THE IMPACTED HEALTH PLANS 39. The Atlanta Archdiocese operates the Roman Catholic Archdiocese of Atlanta Group Health Care Plan (the “Atlanta Plan”), which provides coverage to the employees of the Atlanta Archdiocese, Christ the King School and Catholic
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Charities (collectively, the “Atlanta Plaintiffs”). It does not contract with a separate insurance company to provide health care coverage to its employees. Instead, the Archdiocese itself functions as the insurance company, underwriting its employees’ medical costs. The Archdiocese contracts with Meritain Health to provide certain claims and other related administration services. The Atlanta Plan does not cover abortion-inducing drugs or sterilization. Contraceptives are not covered by the plan unless they are necessary for medically diagnosed conditions unrelated to contraception.
40. The Atlanta Plan year begins on January 1. 41. The Diocese of Savannah operates two self-insured health plans (collectively, the “Savannah Plan”) that provide coverage to the employees of the Diocese, the parishes, and the schools within the Diocese. Third-party administrator Meritain Health manages benefit applications, claims processing, and payment of claims for the Savannah Plan on behalf of the Diocese of Savannah. The Savannah Plan does not cover abortion-inducing drugs or sterilization. Contraceptives are not covered by the plan unless they are necessary for medically diagnosed conditions unrelated to contraception. 42. The Savannah Plan year begins on July 1.
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43. “[T]he Affordable Care Act preserves the ability of individuals to retain coverage under a group health plan or health insurance coverage in which the individual was enrolled on March 23, 2010.” Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 75 Fed. Reg. 41,726, 41,731 (July 19, 2010); 42 U.S.C. § 18011. These so-called “grandfathered health plans do not have to meet the requirements” of the U.S. Government Mandate, but only so long as the plans offer substantially the same benefits at substantially the same costs. 75 Fed. Reg. at 41,731. HHS estimates that “98 million individuals will be enrolled in grandfathered group health plans in 2013.” Id. at 41,732.
44. Because of financial pressures caused by increasing healthcare costs, the Diocese of Savannah was forced to modify significantly its existing Plan on July 1, 2011. Among other changes, the Diocese of Savannah increased employee deductibles and out-of-pocket maximums by approximately 33% above those amounts associated with the Savannah Plan as of March 23, 2010. Further, the Diocese of Savannah introduced an additional “Value Plan” for its employees on July 1, 2012. Plaintiffs believe that because of these changes and others the
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Savannah Plan does not meet the Affordable Care Act’s definition of a “grandfathered plan.”
45. Plaintiffs believe that the Atlanta Plan currently meets the Affordable Care Act’s definition of a “grandfathered plan.” As a result of this, the Atlanta Archdiocese has included a statement describing its grandfathered status in its Plan materials, as required by 26 C.F.R. § 54.9815-1251T(a)(2)(ii).
46. To maintain their putative grandfathered status, however, the Atlanta Plaintiffs are locked into their current health plan, unable to adjust it in response to the ever-changing health care marketplace. Thus, to avoid compromising their core religious beliefs, the Atlanta Plaintiffs are stuck in perpetuity with providing their current Plan, and forgoing necessary modifications that would benefit their plan participants and the organizations as a whole.
47. In any event, the Atlanta Plaintiffs will lose their grandfathered status in the near future for reasons that cannot be avoided. For example, the employer contribution to the premium cannot decrease by more than 5% of the cost of coverage compared to the employer contribution on March 23, 2010. 26 C.F.R. §54.9815-1251T(g)(1)(v). The Atlanta Plan’s costs, however, have increased by 14% a year since March 23, 2010. The Atlanta Plaintiffs have had to absorb the bulk of these millions of dollars in increased healthcare premiums since March 23,
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2010, and may be unable to continue to do so without threatening the overall solvency of the Atlanta Plaintiffs. Given the well-established, long term trajectory of health care costs, the Atlanta Plaintiffs anticipate that, as employers, they will be unable to continue to pay within 5 percentage points of what they had paid in 2010 by January 1, 2014. Even the Government acknowledges that, as health costs escalate, the number of grandfathered health plans will decrease substantially in the near future. See 75 Fed. Reg. 41,726, 41,731 (July 19, 2010).
THE GOVERNMENT DEFENDANTS 48. Defendant Kathleen Sebelius is the Secretary of the U.S. Department of Health and Human Services. She is named and sued in her official capacity. 49. Defendant Hilda Solis is the Secretary of the U.S. Department of Labor. She is named and sued in her official capacity. 50. Defendant Timothy Geithner is the Secretary of the U.S. Department of Treasury. He is named and sued in his official capacity. 51. Defendant U.S. Department of Health and Human Services (“HHS”) is an executive agency of the United States within the meaning of RFRA and the APA. 52. Defendant U.S. Department of Labor is an executive agency of the United States within the meaning of RFRA and the APA.
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53. Defendant U.S. Department of Treasury is an executive agency of the United States within the meaning of RFRA and the APA.
JURISDICTION AND VENUE 54. This is an action for declaratory and injunctive relief under 5 U.S.C. § 702, 28 U.S.C. §§ 2201, 2202, and 42 U.S.C. § 2000bb-1(c). 55. This Court has subject-matter jurisdiction over this action under 28 U.S.C. §§ 1331, 1343(a)(4), and 1346(a)(2). 56. Venue is proper in this Court under 28 U.S.C. § 1391(e)(1).
STATUTORY BACKGROUND THE AFFORDABLE CARE ACT
57. On March 23, 2010, Congress enacted the Affordable Care Act. See Pub. L. No. 111-148, 124 Stat. 119. The Act significantly amended the Public Health Service Act by establishing many new requirements for “group health plans,” broadly defined as “employee welfare benefit plans” within the meaning of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1002(1), that “provide[] medical care . . . to employees or their dependents.” 42 U.S.C. § 300gg-91(a)(1). The Act, for example, prohibits an employer’s group health plan from excluding employees based on preexisting medical conditions, see Pub. L. No. 111-148 § 1201, 124 Stat. 154 (codified, as amended, at 42 U.S.C. §
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300gg-3(a)), and requires the plan to provide dependent coverage to employees’ children until they turn 26 years old, see Pub. L. No. 111-148 § 1001(5), 124 Stat. 132 (codified at 42 U.S.C. § 300gg-14(a)).
58. The Act requires an employer’s group health plan to cover women’s “preventive care,” stating that: “[a] group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum[,] provide coverage for and shall not impose any cost sharing requirements for . . . (4) with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.” Pub. L. No. 111-148 § 1001(5), 124 Stat. 131 (codified at 42 U.S.C. § 300gg-13(a)(4)). The prohibition on “cost sharing requirements” means that a qualified health plan must pay for the full cost of “preventive care” services, without any deductible or co-payment.
59. Several of the Act’s provisions, along with other federal statutes, reflect a clear congressional intent that the executive agency charged with identifying the “preventive care” required by § 300gg-13(a)(4) should exclude all abortion-related services. The Act itself states that “nothing in this title (or any amendment made by this title) shall be construed to require a qualified health plan to provide coverage of [abortion] services . . . as part of its essential health benefits
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for any plan year.” 42 U.S.C. § 18023(b)(1)(A)(i). And the Act left to “the issuer of a qualified health plan,” not the Government, the ability “[to] determine whether or not the plan provides coverage of [abortion].” Id. § 18023(b)(1)(A)(ii). Likewise, the so-called Weldon Amendment, which has been included in every HHS and Department of Labor appropriations bill since 2004, states that “[n]one of the funds made available in this Act [to the Department of Labor and the Department of Health and Human Services] may be made available to a Federal agency or program . . . if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” Consolidated Appropriations Act, 2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(1), 125 Stat 786, 1111 (2011).
60. The legislative history of the Act also demonstrates a clear congressional intent to prohibit the executive branch from requiring group health plans to provide abortion-related services. The House of Representatives originally passed a bill that included an amendment by Congressman Bart Stupak expressly prohibiting the use of federal funds for abortion services. See H.R. 3962, 111th Cong. § 265 (Nov. 7, 2009). The Senate version, however, lacked that restriction. S. Amend. No. 2786 to H.R. 3590, 111th Cong. (Dec. 23, 2009). The
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two respective bills contained many different provisions, and so they needed to be reconciled into a final bill passed by both houses. After the passage of the Senate version, however, Senator Scott Brown won a special election in Massachusetts. Any reconciled bill, therefore, was likely to face a filibuster in the Senate. To avoid defeat, congressional proponents of the Act engaged in a procedure known as “budget reconciliation,” which required the House to adopt the Senate version of the bill largely in its entirety. Congressman Stupak and other pro-life House members, however, indicated that they would refuse to vote for the Senate version because it failed adequately to prohibit federal funding of abortion. To appease these Representatives, President Obama issued an executive order providing that no executive agency would authorize the federal funding of abortion services. See Exec. Order No. 13535, 75 Fed. Reg. 15,599 (Mar. 24, 2010). The Act was, therefore, passed on the central premise that all federal agencies would uphold and follow “longstanding Federal laws to protect conscience” and to prohibit federal funding of abortion services. Id. That executive order was consistent with a 2009 speech that President Obama gave at the University of Notre Dame, in which he promised that his Administration would honor the consciences of those who disagree with abortion, and draft sensible conscience clauses.
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THE U.S. GOVERNMENT MANDATE 61. Less than two years later, however, Defendants promulgated the U.S. Government Mandate, subverting the Act’s clear purpose to protect the rights of conscience. The U.S. Government Mandate, moreover, was implemented contrary to the normal procedural rules required for the promulgation and implementation of rules of this magnitude. 62. In particular, on July 19, 2010, Defendants issued initial interim final rules (the “Interim Rules”) concerning § 300gg-13(a)(4)’s requirement that group health plans provide coverage for women’s “preventive care.” Interim Final Rules, 75 Fed. Reg. 41,726. Defendants arbitrarily dispensed with notice-and-comment rulemaking for the Interim Rules, even though federal law had never previously required coverage of abortion-inducing drugs, sterilization procedures or contraceptives. Defendants offered as an excuse that the APA did not apply to the relevant provisions of the Affordable Care Act and that “it would be impracticable and contrary to the public interest to delay putting the provisions in these interim final regulations in place until a full public notice and comment process was completed.” Id. at 41,730. 63. The Interim Rules tracked the Affordable Care Act’s statutory language by requiring that “a group health plan . . . must provide coverage for all
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of the following items and services, and may not impose any cost-sharing requirements (such as a copayment, coinsurance, or deductible) with respect to those items or services: . . . (iv) With respect to women, to the extent not described in paragraph (a)(1)(i) of this section, preventive care and screenings provided for in binding comprehensive health plan guidelines supported by the Health Resources and Services Administration.” Interim Final Rules, 75 Fed. Reg. at 41,728 (codified at 45 C.F.R. § 147.130(a)(iv)).
64. The Interim Rules, however, failed to identify the specific women’s “preventive care” services that Defendants planned to require employer group health plans to cover. 42 U.S.C. § 300gg-13(a)(4). Instead, Defendants noted that “[t]he Department of HHS [was] developing these guidelines and expects to issue them no later than August 1, 2011.” Interim Final Rules, 75 Fed. Reg. at 41,731.
65. Defendants permitted concerned entities to provide written comments about the Interim Rules. See id. at 41,726. But, as Defendants have conceded, they chose not to comply with the notice-and-comment requirements of the APA. Id. at 41,730.
66. In response, several groups lobbied to persuade Defendants to include various abortion-inducing drugs and contraceptives in the “preventive care” requirements for group health plans. See, e.g.,
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http://www.plannedparenthood.org/about-us/newsroom/press-releases/plannedparenthood-supports-initial-white-house-regulations-preventive-care-highlightsneed-new-33140.htm. Other commenters noted that “preventive care” could not reasonably be interpreted to include such practices. These groups pointed out that pregnancy was not a disease that needed to be “prevented” and that a contrary view would intrude on the sincerely-held beliefs of many religiously affiliated organizations. See, e.g., Comments of United States Conference of Catholic Bishops, at 1-2 (Sept. 17, 2010), available at http://old.usccb.org/ogc/preventive.pdf.
67. On August 1, 2011, HHS announced the “preventive care” services that group health plans would be required to cover under the U.S. Government Mandate. See HHS, Affordable Care Act Ensures Women Receive Preventive Services at No Additional Cost, available at http://www.hhs.gov/news/press/2011pres/08/20110801b.html. Again acting without notice-and-comment rulemaking, HHS announced these guidelines through a press release rather than enactments in the Code of Federal Regulations or statements in the Federal Register. The press release made clear that the guidelines were developed by a non-governmental “independent” organization, the Institute of Medicine (“IOM”). See id. The IOM’s own report, in turn, included a
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dissent that suggested that the IOM’s recommendations were made on an unduly short time frame dictated by political considerations and without the appropriate transparency for all concerned persons.
68. HHS’s guidelines required insurers and group health plans to cover “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” See http://www.hrsa.gov/womensguidelines/. FDA-approved contraceptives include drugs that induce abortions. For example, the FDA has approved “emergency contraceptives,” such as the morning-after pill (otherwise known as Plan B), which can prevent an embryo from implanting in the womb, and Ulipristal (otherwise known as HRP 2000 or ella), which can also induce abortions. These guidelines are in stark contrast with the central compromise necessary for passing the Affordable Care Act and President Obama’s promise to protect religious liberty.
FINES AND PENALTIES 69. Violations of the Affordable Care Act subject an employer and an insurer to substantial fines. 70. Under the Internal Revenue Code, certain employers who fail to offer “full-time employees (and their dependents) the opportunity to enroll in minimum
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essential coverage under an eligible employer-sponsored plan” will be exposed to significant annual fines of $2,000 per full-time employee. See 26 U.S.C. § 4980H(a), (c)(1).
71. Additionally, under the Internal Revenue Code, group health plans that fail to provide certain required coverage are subject to an assessment of $100 a day per individual. See 26 U.S.C. § 4980D(b); see also Jennifer Staman & Jon Shimabukuro, Cong. Research Serv., RL 7-5700, Enforcement of the Preventative Health Care Services Requirements of the Patient Protection and Affordable Care Act (2012) (asserting that this assessment applies to employers who violate the “preventive care” provision of the Affordable Care Act).
72. Under the Public Health Service Act, the Secretary of HHS may impose a monetary penalty of $100 a day per individual where an insurer fails to provide the coverage required by the U.S. Government Mandate. See 42 U.S.C. § 300gg-22(b)(2)(C)(i); see also Cong. Research Serv., RL 7-5700 (asserting that this penalty applies to insurers who violate the “preventive care” provision of the Affordable Care Act).
73. ERISA may provide for additional fines. Moreover, ERISA plan participants may bring civil actions against insurers for unpaid benefits. 29 U.S.C. § 1132(a)(1)(B); see also Cong. Research Serv., RL 7-5700. Similarly, the
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Secretary of Labor may bring an enforcement action against group health plans of employers that violate the U.S. Government Mandate, as incorporated by ERISA. See 29 U.S.C. § 1132(b)(3); see also Cong. Research Serv., RL 7-5700 (asserting that these fines can apply to employers and insurers who violate the “preventive care” provision of the Affordable Care Act).
THE EXEMPTION 74. Two days after HHS announced the guidelines, on August 3, 2011, Defendants issued amendments to the July 2010 Interim Rules (the “Amended Rule”). See Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 76 Fed. Reg. 46,621 (Aug. 3, 2011). Again, Defendants issued the Amended Rule without notice-and-comment rulemaking on the same claimed basis they had provided for bypassing the APA with the July 2010 Interim Rules. See id. at 46,624. 75. When announcing the Amended Rule, Defendants ignored the view that “preventive care” should exclude abortion-inducing drugs, sterilization procedures and contraceptives that do not prevent disease. Instead, they noted only that “commenters [had] asserted that requiring group health plans sponsored by religious employers to cover contraceptive services that their faith deems
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contrary to its religious tenets would impinge upon their religious freedom.” Id. at
46,623. They then sought “to provide for a religious accommodation that
respect[ed]” only “the unique relationship between a house of worship and its
employees in ministerial positions.” Id.
76. Specifically, the regulatory Exemption ignored the broader definitions
of religious employers already existing in federal law. Instead, the Exemption
covered only those employers whose purpose is to inculcate religious values, and
who employ and serve primarily individuals of the same religion. Taken on its
face, at least some of the Plaintiffs appear not to fit within these criteria. The
Exemption provides in full:
(A) In developing the binding health plan coverage guidelines specified in this paragraph (a)(1)(iv), the Health Resources and Services Administration shall be informed by evidence and may establish exemptions from such guidelines with respect to group health plans established or maintained by religious employers and health insurance coverage provided in connection with group health plans established or maintained by religious employers with respect to any requirement to cover contraceptive services under such guidelines.
(B) For purposes of this subsection, a “religious employer” is an organization that meets all of the following criteria:
(1) The inculcation of religious values is the purpose of the organization.
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(2) The organization primarily employs persons who share the religious tenets of the organization. (3) The organization serves primarily persons who share the religious tenets of the organization. (4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended. Id. at 46,626 (codified at 45 C.F.R. § 147.130(a)(iv)(A)-(B)). 77. The Exemption effectively excludes the health plans of religiously affiliated employers that do not discriminate in providing charitable, educational, and employment opportunities, and who provide such opportunities to all persons, regardless of religious faith. 78. It is unclear whether, if an entity qualifies as a “religious employer” for purposes of the Exemption, any affiliated entity or association (such as Plaintiffs Catholic Charities and Christ the King School) that provides coverage to its employees through the exempt entity’s group health plan would also receive the benefit of the Exemption. Certain Preventive Services Under the Affordable Care Act, 77 Fed. Reg. 16,501, 16,502 (Mar. 21, 2012). 79. Moreover, the Government assumes exclusive and discretionary authority to determine whether and when an organization is sufficiently “religious” so as to qualify for the Exemption -- an unconstitutionally invasive inquiry into an
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organization’s religious beliefs and practices. For example, the Government must determine the “religious tenets” of an organization and the individuals it employs and serves; whether the organization “primarily” employs and “primarily” serves individuals who “share” the organization’s “religious tenets”; and whether “the purpose” of the organization is the “inculcation of religious values.”
80. When issuing the Amended Rule, Defendants did not explain why they created such a narrow religious Exemption, nor did Defendants address why they refused to incorporate the other “longstanding Federal laws to protect conscience,” which President Obama promised to respect. See Exec. Order No. 13535, 75 Fed. Reg. 15,599 (Mar. 24, 2010). ERISA, for example, has long excluded “church plans” from its requirements. See 29 U.S.C. §§ 1002(33)(C)(iv), 1003. Likewise, the Affordable Care Act itself excludes from its requirement that all individuals maintain minimum essential coverage those individuals with religious objections to receiving benefits from public or private insurance. 26 U.S.C. §§ 1402(g)(1), 5000A(d)(2).
81. Moreover, Defendants did not address whether they have a compelling interest in forcing religiously-affiliated employers to include services in their health plans that are contrary to their religious beliefs. And they failed to
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consider whether they could achieve their views of sound policy in a more religiously accommodating manner.
82. Subsequently, the Defendants permitted parties to provide comments to the Amended Rule, which gave the appearance that Defendants were open to good-faith discussion. Numerous organizations expressed the same concerns that they had before, noting that the mandated services should not be viewed as “preventive care.” They also explained that the Exemption was “narrower than any conscience clause ever enacted in federal law and narrower than the vast majority of religious exemptions from state contraceptive mandates.” Comments of United States Conference of Catholic Bishops, at 1-2 (Aug. 31, 2011), available at http://www.usccb.org/about/general-counsel/rulemaking/upload/comments-tohhs-on-preventive-services-2011-08.pdf.
THE TEMPORARY ENFORCEMENT SAFE HARBOR AND ANPRM 83. Three months later, allegedly “[a]fter evaluating [the new] comments” to the Amended Rule, Defendants gave their response. Defendant Sebelius issued a short, Friday-afternoon press release, announcing with neither analysis nor reasoning that HHS had decided to keep the Exemption unchanged, but had also created a temporary enforcement safe harbor whereby “[n]onprofit employers who, based on religious beliefs, do not currently provide contraceptive coverage in
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their insurance plan, will be provided an additional year, until August 1, 2013, to comply with the new law.” See HHS, A Statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius, available at http://www.hhs.gov/news/press/2012pres/01/20120120a.html. As noted by Cardinal Timothy Dolan, the release effectively gave objecting religious institutions “a year to figure out how to violate [their] consciences.”
84. The temporary enforcement safe harbor (“Safe Harbor”) did not delay the Mandate from going into effect on August 1, 2012 -- it only purported to delay the Government’s enforcement of the Mandate as against certain individuals and entities, provided those individuals and entities “certify that they qualify for the delayed implementation.” Id.; see also HHS, Guidance on the Temporary Enforcement Safe Harbor for Certain Employers, available at http://cciio.cms.gov/resources/files/prev-services-guidance-08152012.pdf (describing procedure for certification under the Safe Harbor). The Safe Harbor does not and cannot restrain private parties from bringing their own lawsuits to enforce the Mandate against Plaintiffs for damages under applicable laws. Nor does the Safe Harbor eliminate or postpone the Government-imposed requirement that the Atlanta Plaintiffs continuously maintain the grandfathered status of their plan to avoid enforcement of the Mandate once the Safe Harbor expires.
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85. On February 10, 2012, the White House held a press conference and issued another press release about the U.S. Government Mandate. The White House announced that it had come up with a “solution” by which the insurance companies of religious organizations that object to providing abortion-inducing drugs, sterilization, or contraception services “will be required to directly offer . . . contraceptive care [to plan participants] free of charge.” White House, Fact Sheet: Women’s Preventive Services and Religious Institutions (Feb. 10, 2012), available at http://www.hhs.gov/news/press/2012pres/01/20120120a.html.
86. Defendants later explained in the Federal Register that they “plan[ned] to initiate a rulemaking to require issuers to offer insurance without contraception coverage to [an objecting religious] employer (or plan sponsor) and simultaneously to offer contraceptive coverage directly to the employer’s plan participants (and their beneficiaries) who desire it, with no cost-sharing.” Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 77 Fed. Reg. 8725, 8728 (Feb. 15, 2012). Defendants further asserted that the rulemaking would “achieve the same goals for self-insured group health plans.” Id.
87. Defendants then “finalize[d], without change,” the Amended Rule containing the religious employer Exemption, 77 Fed. Reg. at 8725, and issued
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guidelines regarding the previously announced “temporary enforcement safe harbor” for “non-exempted, non-profit religious organizations with religious objections to [contraceptive] coverage.” Id. at 8728; Ctr. for Consumer Info. & Ins. Oversight, Guidance on the Temporary Enforcement Safe Harbor (Feb. 10, 2012), available at http://cciio.cms.gov/resources/files/Files2/02102012/20120210-PreventiveServices-Bulletin.pdf.
88. On March 16, 2012, Defendants issued an Advance Notice of Proposed Rulemaking (“ANPRM”) seeking comment on various ways to structure the proposed accommodation. Certain Preventive Services Under the Affordable Care Act, 77 Fed. Reg. 16,501 (Mar. 21, 2012). The proposed scenarios require an “independent entity” to provide coverage for the objectionable services at no cost to the participants. But private entities do not provide insurance coverage “for free,” and, in any event, the Atlanta Plan and Savannah Plan are self-insured. Moreover, even if these proposals were ever finalized and adopted, they would still require religious organizations to pay for and/or facilitate access to the objectionable services. It is also unclear whether the Government has statutory authority to implement each of the possibilities referenced in the ANPRM.
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89. The ANPRM itself does not alter the existing U.S. Government Mandate. Rather, it expresses a vague and non-binding intention to do so at some undefined time in the future. Even a promise to modify the law, whether issued by the White House or in the form of an ANPRM, does not, in fact, alter the law. The U.S. Government Mandate is and remains the current, operative law. Therefore, the Diocese of Savannah has until the start of its next plan year following August 1, 2013, to come into compliance with the U.S. Government Mandate. For their part, the Atlanta Plaintiffs are faced with the untenable choice of remaining grandfathered at prohibitive cost, or complying with the U.S. Government Mandate beginning with the first plan year following August 1, 2013.
THE U.S. GOVERNMENT MANDATE SUBSTANTIALLY BURDENS PLAINTIFFS’ RELIGIOUS BELIEFS
90. Freedom of conscience and religious practice drove the founding of our nation. As noted by Thomas Jefferson, “[n]o provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of civil authority.”
91. The U.S. Government Mandate seeks to require Plaintiffs to pay for, provide, and/or facilitate access to services that are contrary to their core religious convictions. The U.S. Government Mandate thus substantially burdens Plaintiffs’ firmly held religious beliefs and practices.
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92. The U.S. Government Mandate also seeks to compel Plaintiffs to fund related “patient education and counseling for all women with reproductive capacity.” It therefore compels Plaintiffs to pay for, provide, and/or facilitate speech that is contrary to their firmly held religious beliefs.
93. On January 27, 2012, Archbishop Gregory drafted a letter to the parishioners of the Atlanta Archdiocese objecting to the U.S. Government Mandate. The letter is available at http://www.archatl.com/archbishops/gregory/writings/2012/letter_archbishop_012 72012.pdf. In his letter, Archbishop Gregory stated: “[T]he Administration has cast aside the First Amendment to the Constitution of the United States, denying to Catholics our Nation’s first and most fundamental freedom, that of religious liberty. And as a result, unless the rule is overturned, we Catholics will be compelled either to violate our consciences, or to drop health coverage for our employees (and suffer the penalties for doing so).”
94. Bishop Hartmayer wrote a similar letter to the parishioners of the Diocese of Savannah to be read at all masses on the weekend of January 28-29, 2012. The letter is available at http://www.diosav.org/news-HHS-2012?page=1. In the letter, Bishop Hartmayer stated: “Along with my brother bishops and other
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religious leaders, I insist that this is a direct attack on our religious freedom and our First Amendment rights.”
95. Avoiding the U.S. Government Mandate by leaving the health care market is not a viable option for Plaintiffs. Eliminating their employee group health plans might expose Plaintiffs to substantial fines or penalties of $2,000 per full-time employee per year. If the Atlanta Plaintiffs cease offering health plans to their over 1,500 full-time employees, they may face over $3,000,000 in fines during 2014. Likewise, if the Diocese of Savannah ceases offering its health plans to its approximately 750 full-time employees, it may face approximately $1,500,000 in fines annually. Meanwhile, Plaintiffs’ employees would be left scrambling for health insurance.
96. Nor would the ANPRM—even if it were law, which it is not—relieve Plaintiffs from the untenable and unconscionable position in which the U.S. Government Mandate currently puts them.
97. First, the promised “accommodation” would not alter the fact that Plaintiffs would be required to facilitate practices that run directly contrary to their religious beliefs. Catholic teaching does not simply require Catholic institutions to avoid directly paying for practices they believe are intrinsically immoral. It also requires them to avoid actions that facilitate those practices.
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98. Second, the “accommodation” does not affect the excessively narrow Exemption applicable to “religious employers.” Before they may even qualify for the Exemption, religious organizations must submit to an invasive governmental inquiry conducted by the Government, under the direction of Secretary Sebelius, regarding their purpose and religious beliefs. Requiring Plaintiffs to submit to this government-conducted test to determine if they are sufficiently religious is inappropriate and substantially burdens their firmly held religious beliefs. That unconstitutional burden on Plaintiff’s First Amendment rights, and the excessive entanglement between the Government and religion that goes with it, will occur no matter what “accommodation” the Government might adopt.
99. It is unclear how the Government defines or will interpret “purpose.” 100. It is unclear how the Government defines or will interpret vague terms, such as “primarily,” “share,” and “religious tenets.” 101. It is unclear how the Government will ascertain the “religious tenets” of an organization, those it employs, and those it serves. 102. It is unclear how much overlap the Government will require for religious tenets to be “share[d].”
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103. To force Plaintiffs to seek to qualify for the Exemption by restricting their charitable and educational mission to Catholics is unconscionable and would have devastating effects on the communities Plaintiffs serve.
104. Finally, as explained below, the U.S. Government Mandate burdens Plaintiffs’ religious beliefs right now.
105. In short, while the President claimed to have “f[ou]nd a solution that works for everyone” and that ensures that “[r]eligious liberty will be protected,” his proposed accommodation does neither.
THE U.S. GOVERNMENT MANDATE IS NOT A NEUTRAL LAW OF GENERAL APPLICABILITY
106. The U.S. Government Mandate is not a neutral law of general applicability. It offers multiple exemptions from its requirements that employerbased health plans include or facilitate coverage for abortion-inducing drugs, sterilization, contraception, and related education and counseling. It was, moreover, implemented by and at the behest of individuals and organizations who expressly disagree with certain religious beliefs regarding abortion, sterilization, and contraception, and thus targets religious organizations for disfavored treatment.
107. The Government has also crafted the Exemption to favor certain religions over others. It applies only to plans sponsored by those religious
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organizations that have as their “purpose” the “inculcation of religious values”; that “primarily” serve only individuals that share their “religious tenets”; and that “primarily” employ such individuals. 45 C.F.R. § 147.130(a)(iv)(B).
108. While the Exemption may protect some of the Defendants’ favored religious organizations, it does not appear to protect the many Catholic and other religious organizations that educate students, provide vital services to the needy, and employ individuals of all faiths. Yet, because these organizations do not consider religious affiliation in hiring for most positions, or consider the religious affiliation of those they serve, they appear to be denied the Exemption. The U.S. Government Mandate thus discriminates against religious organizations like Plaintiffs because of their religious commitment to educate, serve, and employ people of all, or no, faiths.
THE U. S. GOVERNMENT MANDATE IS NOT THE LEAST RESTRICTIVE MEANS OF FURTHERING A COMPELLING GOVERNMENTAL INTEREST
109. The U.S. Government Mandate is not narrowly tailored to promote a compelling governmental interest.
110. The Government has no compelling interest in forcing Plaintiffs to violate their firmly held religious beliefs by requiring them to provide, pay for, or facilitate access to abortion-inducing drugs, sterilizations, and contraceptives. The Government itself has relieved other employers from this requirement by
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exempting plans of employers it deems to be sufficiently religious. These services are already widely available in the United States, and the U.S. Supreme Court has held that individuals have a constitutional right to purchase or otherwise obtain them.
111. Even assuming that the interest is compelling—which it is not—the Government has numerous alternatives to furthering that interest other than forcing Plaintiffs to violate their religious beliefs. For example, the Government could provide or pay for the objectionable services through expansion of its existing network of family planning clinics funded by HHS or though other programs established by a duly enacted law. Or, at a minimum, it could create a broader exemption for religious employers, such as those found in numerous federal and state statutes. The Government cannot demonstrate that requiring Plaintiffs to violate their religious beliefs is the least restrictive means of furthering its claimed interest.
112. The U.S. Government Mandate, moreover, burdens religious freedom while simultaneously undermining the very interests it ostensibly tries to promote by interfering with entities (like Plaintiffs) that serve our society’s neediest individuals.
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THE U.S. GOVERNMENT MANDATE AND EXEMPTION PRODUCE AN EXCESSIVE ENTANGLEMENT BETWEEN GOVERNMENT AND RELIGION
113. The U.S. Government Mandate’s religious employer Exemption further excessively entangles the Government in defining the purpose and religious tenets of each organization and its employees and beneficiaries.
114. To determine whether a religious organization qualifies for the Exemption, the Government will first have to identify the organization’s “religious tenets” and determine whether “the purpose” of the organization is to “inculcate” those tenets. It will then have to conduct an inquiry into the practices and beliefs of the individuals that the organization ultimately employs and educates. The Government will then have to compare and contrast those religious practices and beliefs to determine whether and how many of them are “share[d].”
115. Regardless of outcome, this inquiry is unconstitutional, and Plaintiffs strongly object to such an intrusive governmental investigation into an organization’s religious mission.
116. The Exemption is based on an improper Government determination that “inculcation” is a religious employer’s only legitimate purpose. The Government should not base exemption on an assessment of the “purity” or legitimacy of an institution’s religious purpose. By limiting that legitimate purpose to “inculcation,” at the expense of other sincerely held religious purposes,
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the U.S. Government Mandate and Exemption interfere with religious autonomy. Religious institutions have the right to determine their own religious purpose, including religious purposes broader than “inculcation,” without Government interference and without losing their religious liberties.
117. Defining religion based on employing and serving primarily people who share the organization’s religious tenets directly contradicts Plaintiffs’ sincerely held religious beliefs regarding their religious mission to serve all people, regardless of whether or not they share the same faith.
THE U.S. GOVERNMENT MANDATE IS CAUSING PRESENT HARDSHIP 118. The U.S. Government Mandate is causing serious, ongoing hardship to Plaintiffs now, regardless of any delayed enforcement. 119. Health plans cannot and do not arise overnight. A number of analyses, negotiations and decisions must occur each year before Plaintiffs can develop, procure and offer to their employees a health benefits package. Plaintiffs, while self-insured employers, must consult and negotiate with their third-party administrators to determine the cost of the products and services they want to offer to their employees and the employees of affiliated entities. 120. The process of determining the health care package for a plan year requires a substantial amount of time before the plan year actually begins. The
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benefits departments for Plaintiffs must begin budgeting and planning for their insurance Plans from 14 to 16 months ahead of the start of a plan year in order to analyze vet, and implement changes to their plans. Because both the Atlanta Plan and the Savannah Plan are self-insured, the benefits departments for Plaintiffs must analyze historical data, evaluate potential changes, work with consultants to model and analyze potential changes, and compare potential change options. The benefits departments must then develop options to be presented to committees that are responsible for benefits issues. The potential changes are discussed and debated with the committees during a three to four month period, and a proposal must be finalized at least five months in advance of the start of the next plan year.
121. Further, the Government-imposed dilemma that the Atlanta Plaintiffs face between continuously maintaining the grandfathered status of their group health plan—which severely limits the changes the Atlanta Plaintiffs can make to the Atlanta Plan in response to increasing healthcare costs—and becoming subject to the U.S. Government Mandate is causing injury now. The Atlanta Plaintiffs have considered making certain beneficial changes to the Atlanta Plan since March 23, 2010, and would have made those changes if not for the need to maintain grandfathered status. Specifically, after March 23, 2010, the Atlanta Plaintiffs would have introduced some combination of increased employee premium
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contributions, deductibles, and/or co-pays, to preserve the financial stability of both the Atlanta Plan and the Atlanta Plaintiffs, but they cannot do so for fear of losing grandfathered status.
122. In addition, the multiple levels of uncertainty swirling around the U.S. Government Mandate and the ANPRM make the already lengthy process of preparing a compliant health benefits package even more complex.
123. For example, if Plaintiffs were to decide that the only plausible option is to attempt to qualify as a “religious employer” under the Exemption, they would need to undertake a major overhaul of their corporate structures, hiring practices, and the scope of their programming. Such a process could take years to plan and implement. And, if they are forced to employ only Catholics so as to come within the confines of the Exemption, their hiring options would be greatly diminished.
124. In addition, if Plaintiffs choose not to comply with the U.S. Government Mandate, they may be subject to annual government fines and penalties, and claims for damages by private parties. Plaintiffs require lead time to budget for any such additional expenses in a particular fiscal year. Specifically, Plaintiffs must begin budgeting for such major general expenses approximately 18 months before a plan year will begin.
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125. Moreover, a significant portion of the budget and planning sessions for the Atlanta Plaintiffs each year necessarily entails analyzing the grandfathered status. In fact, since March 2010, the Atlanta Plaintiffs and their insurance brokers have spent well over 150 hours analyzing the Plan’s grandfathered status. The time the Atlanta Plaintiffs have had to spend on these issues could have been spent addressing other significant budgetary and operational issues facing the Atlanta Plaintiffs.
126. The Atlanta Plaintiffs have already been injured because they have expended significant resources to ensure that the 2011, 2012, and 2013 health plans comply with the grandfather status and the U.S. Government Mandate, as well as evaluating how they are impacting and will continue to impact the Atlanta Plaintiffs. For example, since March 2010, the Atlanta Plaintiffs have incurred professional fees of more than $10,000 just to determine how to maintain the Atlanta Plan’s grandfathered status.
127. The uncertainty regarding when and how the U.S. Government Mandate will affect Plaintiffs also limits Plaintiffs’ ability to fund other projects, including community service and public health projects. The prospect of significant fines forces Plaintiffs to consider setting aside significant sums of money that otherwise could be directed toward their missions. The money
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Plaintiffs need to set aside for those costs directly limits their ability right now to use or set aside funds for other projects, including public service projects, for the 2013 and 2014 budgets. For example, the money and time spent by the Atlanta Plaintiffs in the past on community programs and charity care have exceeded $6 million dollars annually. The money and time spent by the Diocese of Savannah in the past on community programs and charity care have exceeded $1 million dollars annually. The fines and other costs associated with the U.S. Government Mandate jeopardize all services provided by Plaintiffs — especially community and charitable funding.
128. Moreover, given the lack of proper notice-and-comment rulemaking regarding the guidelines for “preventive care” services, and the Amended Rule and Exemption, Plaintiffs have no available administrative remedy. And, in any event, further administrative efforts to obtain relief would be futile since, among other reasons, the relevant agencies and officers lack the authority to resolve the statutory and constitutional claims at issue here.
129. Thus, an actual, justiciable controversy currently exists between Plaintiffs and Defendants. Absent a declaration resolving this controversy and the validity and applicability of the U.S. Government Mandate, Plaintiffs are uncertain as to their rights and duties in planning, negotiating, and/or implementing their
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group health insurance plans, their hiring and retention programs, and their social, educational, and charitable programs and ministries, as described herein. Plaintiffs have an actual, well-founded fear that the Mandate will be enforced against them.
130. Plaintiffs have standing to invoke the power of this Court to redress the injuries they are presently suffering and, in addition, other imminent injuries that they are likely to suffer in the near future.
131. Accordingly, Plaintiffs seek an order vacating the U.S. Government Mandate and declaring that it violates the First Amendment, RFRA, and the APA. Plaintiffs further request that the Court enter an injunction prohibiting the Defendants from enforcing the U.S. Government Mandate against them. Absent such a declaration of rights and award of injunctive relief by this Court, Plaintiffs have no adequate remedy at law.
CAUSES OF ACTION COUNT I
SUBSTANTIAL BURDEN ON RELIGIOUS EXERCISE IN VIOLATION OF RFRA
132. Plaintiffs hereby repeat and re-allege the allegations set out in Paragraphs 1 through 131 hereinabove.
133. RFRA prohibits the Government from substantially burdening an entity’s exercise of religion, even if the burden results from a rule of general
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applicability, unless the Government demonstrates that the burden (i) furthers a compelling governmental interest, and (ii) is the least restrictive means of furthering that interest.
134. RFRA protects organizations as well as individuals from substantial Government-imposed burdens on religious exercise.
135. RFRA applies to all federal law and the implementation of that law by any branch, department, agency, instrumentality, or official of the United States.
136. The U.S. Government Mandate requires Plaintiffs to provide, pay for, and/or facilitate practices and speech that are contrary to Plaintiffs’ core religious beliefs.
137. In order to qualify for the Exemption to the U.S. Government Mandate, Plaintiffs must submit themselves to an intrusive governmental inquiry into their religious beliefs.
138. The U.S. Government Mandate thereby substantially burdens Plaintiffs’ exercise of religion.
139. Defendants have no compelling governmental interest to require Plaintiffs to comply with the U.S. Government Mandate.
140. Requiring Plaintiffs to comply with the U.S. Government Mandate is not the least restrictive means of furthering any compelling governmental interest.
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141. By enacting and threatening to enforce the U.S. Government Mandate against Plaintiffs, Defendants have violated RFRA.
142. Plaintiffs have no adequate remedy at law. 143. The U.S. Government Mandate and its impending enforcement impose an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT II SUBSTANTIAL BURDEN ON RELIGIOUS EXERCISE IN VIOLATION OF
THE FREE EXERCISE CLAUSE OF THE FIRST AMENDMENT 144. Plaintiffs hereby repeat and re-allege the allegations set out in Paragraph 1 through 131 hereinabove. 145. The Free Exercise Clause of the First Amendment prohibits the Government from substantially burdening an entity’s exercise of religion. 146. The Free Exercise Clause protects organizations as well as individuals from Government-imposed burdens on religious exercise. 147. The U.S. Government Mandate requires Plaintiffs to provide, pay for, and/or facilitate practices and speech that are contrary to their religious beliefs. 148. In order to qualify for the Exemption to the U.S. Government Mandate, Plaintiffs must submit to an intrusive governmental inquiry into their religious beliefs.
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149. The U.S. Government Mandate (including the Exemption) substantially burdens Plaintiffs’ exercise of religion.
150. The U.S. Government Mandate is not a neutral law of general applicability, because it is riddled with arbitrary exemptions. It offers multiple exemptions from its requirement that employer-based health plans include or facilitate coverage for abortion-inducing drugs, contraception, sterilization, and related education and counseling.
151. The U.S. Government Mandate is not a neutral law of general applicability, because it discriminates against certain religious viewpoints and targets certain religious organizations for disfavored treatment. Defendants enacted the U.S. Government Mandate despite being aware of the substantial burden it would place on Plaintiffs’ exercise of religion.
152. The U.S. Government Mandate implicates constitutional rights in addition to the right to free exercise of religion, including, for example, the rights to free speech and to freedom from excessive government entanglement with religion.
153. Defendants have no compelling governmental interest to require Plaintiffs to comply with the U.S. Government Mandate.
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154. The U.S. Government Mandate is not narrowly tailored to further a compelling governmental interest.
155. By enacting and threatening to enforce the U.S. Government Mandate, Defendants have burdened Plaintiffs’ religious exercise in violation of the Free Exercise Clause of the First Amendment.
156. Plaintiffs have no adequate remedy at law. 157. The U.S. Government Mandate and its impending enforcement impose an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT III EXCESSIVE ENTANGLEMENT IN VIOLATION OF THE FREE EXERCISE AND ESTABLISHMENT CLAUSES OF THE FIRST AMENDMENT 158. Plaintiffs hereby repeat and re-allege the allegations set out in Paragraphs 1 through 131 hereinabove. 159. The Free Exercise and Establishment Clauses of the First Amendment prohibit intrusive government inquiries into the religious beliefs of individuals and institutions, and other forms of excessive entanglement between religion and Government. 160. This prohibition on excessive entanglement protects organizations as well as individuals.
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161. The Exemption applies only after the Government conducts an invasive investigation into an organization’s religious beliefs, including whether the organization’s “purpose” is the “inculcation of religious values” and whether the organization “primarily employs” and “primarily serves” individuals who share the organization’s religious tenets.
162. The U.S. Government Mandate thus requires the Government to engage in invasive inquiries and discretionary judgments regarding questions of religious belief or practice.
163. The U.S. Government Mandate results in an excessive entanglement between religion and Government.
164. The enactment and impending enforcement of the U.S. Government Mandate violate the Free Exercise and the Establishment Clauses of the First Amendment.
165. The U.S. Government Mandate is therefore unconstitutional and invalid.
166. Plaintiffs have no adequate remedy at law. 167. The U.S. Government Mandate and its impending enforcement impose an immediate and ongoing harm on Plaintiffs that warrants relief.
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COUNT IV RELIGIOUS DISCRIMINATION IN VIOLATION OF THE FREE EXERCISE AND ESTABLISHMENT CLAUSES OF THE FIRST AMENDMENT 168. Plaintiffs hereby repeat and re-allege the allegations set out in Paragraphs 1 through 131 hereinabove. 169. The Free Exercise Clause and the Establishment Clause of the First Amendment require the equal treatment of all religious faiths and institutions, without discrimination or preference. 170. This requirement of equal treatment protects organizations as well as individuals. 171. The U.S. Government Mandate’s narrow Exemption for certain “religious employers” but not others discriminates on the basis of religious views or religious status. 172. The U.S. Government Mandate’s definition of religious employer likewise discriminates among different types of religious entities based on the nature of those entities’ religious beliefs or practices. 173. The U.S. Government Mandate’s definition of religious employer furthers no compelling governmental interest. 174. The U.S. Government Mandate’s definition of religious employer is not narrowly tailored to further any compelling governmental interest.
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175. The enactment and impending enforcement of the U.S. Government Mandate violate the Free Exercise Clause and the Establishment Clause of the First Amendment.
176. Plaintiffs have no adequate remedy at law. 177. The U.S. Government Mandate and its impending enforcement impose an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT V INTERFERENCE IN MATTERS OF INTERNAL CHURCH GOVERNANCE IN VIOLATION OF THE FREE EXERCISE AND ESTABLISHMENT CLAUSES OF THE FIRST AMENDMENT AND RFRA 178. Plaintiffs hereby repeat and re-allege the allegations set out in Paragraphs 1 through 131 hereinabove. 179. The Free Exercise and Establishment Clauses protect the freedom of religious organizations to decide for themselves, free from governmental interference, matters of church governance as well as those of faith and doctrine. 180. The Government may not interfere with a religious organization’s internal decisions concerning the organization’s religious structure, ministers, or doctrine.
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181. Moreover, the Government may not interfere with a religious organization’s internal decision if that interference would affect the underlying faith and mission of the organization itself.
182. Plaintiffs are religious organizations affiliated with the Roman Catholic Church.
183. The Catholic Church views abortion, sterilization, and contraception as intrinsically immoral and prohibits Catholic organizations from furnishing, condoning, or facilitating those practices.
184. Plaintiffs have abided and must continue to abide by the decision of the Catholic Church on these issues.
185. The Government may not interfere with, or otherwise question, the final decision of the Catholic Church that its religious organizations must abide by these core beliefs and teachings.
186. Plaintiffs have therefore made the internal decision that the health plans they offer to their employees may not cover, subsidize, or facilitate abortioninducing drugs, sterilization, or contraception.
187. The U.S. Government Mandate interferes with Plaintiffs’ internal decisions concerning their structure and mission by requiring them to facilitate practices that directly conflict with Catholic teachings and beliefs.
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188. The U.S. Government Mandate’s interference with Plaintiffs’ internal decisions affects their faith and mission by requiring them to facilitate practices that directly conflict with their religious beliefs.
189. Because the U.S. Government Mandate interferes with the internal decision-making of Plaintiffs in a manner that affects their faith and mission, it violates the Establishment and Free Exercise Clauses of the First Amendment.
190. Plaintiffs have no adequate remedy at law. 191. The U.S. Government Mandate and its impending enforcement impose an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT VI COMPELLED SPEECH IN VIOLATION OF THE FREE SPEECH CLAUSE OF THE FIRST AMENDMENT 192. Plaintiffs hereby repeat and re-allege the allegations set out in Paragraphs 1 though 131 hereinabove. 193. The First Amendment prohibits the Government from compelling affirmation of any religious or ideological proposition that the speaker finds unacceptable. 194. The First Amendment protects organizations as well as individuals against compelled speech. 195. Expenditures are a form of speech protected by the First Amendment.
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196. The First Amendment protects against the use of a speaker’s money to support a viewpoint that conflicts with the speaker’s religious beliefs.
197. The U.S. Government Mandate compels Plaintiffs to provide health care plans to its employees that include or facilitate coverage of practices that violate their religious beliefs.
198. The U.S. Government Mandate compels Plaintiffs to subsidize, promote, and facilitate education and counseling services regarding these practices.
199. By imposing the U.S. Government Mandate, Defendants are compelling Plaintiffs publicly to subsidize or facilitate activity and speech that are contrary to their religious beliefs.
200. The U.S. Government Mandate is viewpoint-discriminatory and subject to strict scrutiny.
201. The U.S. Government Mandate furthers no compelling governmental interest.
202. The U.S. Government Mandate is not narrowly tailored to further a compelling governmental interest.
203. Plaintiffs have no adequate remedy at law. 204. The U.S. Government Mandate imposes an immediate and ongoing harm on Plaintiffs that warrants relief.
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COUNT VII FAILURE TO CONDUCT NOTICE-AND-COMMENT RULEMAKING AND IMPROPER
DELEGATION IN VIOLATION OF THE APA 205. Plaintiffs hereby repeat and re-allege the allegations set out in Paragraphs 1 though 131 hereinabove. 206. The Affordable Care Act expressly delegates to an administrative agency within HHS discretionary responsibility for establishing guidelines concerning the “preventive care” that group health plans and health insurance issuers must provide. 207. Given this express delegation, Defendants were required to engage in formal notice-and-comment rulemaking in a manner prescribed by law before issuing the official guidelines. Proposed regulations were required to be published in the Federal Register and interested persons were required to be given an opportunity to participate in the rulemaking through the submission of written data, views, or arguments. 208. Defendants promulgated the “preventive care” guidelines without first engaging in formal notice-and-comment rulemaking in a manner prescribed by law.
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209. Defendants, instead, improperly delegated their discretionary governmental responsibilities for issuing preventive care guidelines to a nongovernmental entity, the IOM, which is not accountable to the public.
210. The IOM did not permit or provide for the broad public comment otherwise required under the APA. Indeed, the dissent to the IOM report noted both that the IOM conducted its review in an unacceptably short time frame, and that the review process lacked transparency.
211. Within two weeks of the IOM issuing its guidelines, HHS issued a press release announcing that the IOM’s guidelines were required under the Affordable Care Act.
212. Defendants have never explained why they failed to enact these “preventive care” guidelines through notice-and-comment rulemaking as required by the APA.
213. Defendants also failed to engage in notice-and-comment rulemaking when issuing the Interim and Amended Rules incorporating the guidelines.
214. Defendants’ stated reasons for promulgating these rules without engaging in formal notice-and-comment rulemaking do not constitute “good cause.” Providing proper public notice and an opportunity for comment was not
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impracticable, unnecessary, or contrary to the public interest for the reasons claimed by Defendants.
215. Defendants failed to observe a procedure required by law and violated 5 U.S.C. § 706(2)(D) by enacting the “preventive care” guidelines and the Interim and Amended Rules through improper delegation to a non-governmental entity and without engaging in notice-and-comment rulemaking.
216. Plaintiffs have no available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
217. Plaintiffs have no adequate remedy at law. 218. The enactment of the U.S. Government Mandate without following the procedures required by law and its impending enforcement impose an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT VIII UNCONSTITUTIONAL DELEGATION OF LEGISLATIVE AUTHORITY 219. Plaintiffs hereby repeat and re-allege the allegations set out in Paragraphs 1 though 131 hereinabove. 220. The United States Constitution vests all legislative power in the United States Congress. Congress may not delegate its policymaking authority to
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an executive agency in the absence of an intelligible principle that limits and guides the agency’s exercise of that authority.
221. The Affordable Care Act expressly delegates unchecked authority to Defendant HHS to establish “comprehensive guidelines” for the services that group health plans and health insurance issuers must provide as “preventive care” under the Act.
222. The Act does not contain an intelligible principle or any other identifiable standard to which HHS is directed to conform in deciding which services do and do not qualify as “preventive care.”
223. For example, and as illustrated by the U.S. Government Mandate and Exemption, the Act purports to bestow unfettered discretion on HHS to mandate coverage for whatever medical services and procedures it deems to qualify as “preventive care” without any basis for concluding that the those services and procedures actually “prevent” a disease or adverse medical condition. Also, HHS has used its unbounded discretion under the Act to claim for itself the authority to decide which entities will (and will not) be subject to the U.S. Government Mandate and which will (and will not) qualify for the Exemption.
224. The Act’s delegation of legislative authority violates the separation of powers principles of the United States Constitution.
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225. Plaintiffs have no adequate remedy at law. 226. The enactment and impending enforcement of the U.S. Government Mandate pursuant to this unconstitutional delegation of authority impose an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT IX ARBITRARY AND CAPRICIOUS ACTION IN VIOLATION OF THE APA 227. Plaintiffs hereby repeat and re-allege the allegations set out in Paragraphs 1 though 131 hereinabove. 228. The APA condemns agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). 229. The APA further requires that an agency examine the relevant data and articulate an explanation for its action that includes a rational connection between the facts found and the policy choice made. 230. Agency action is arbitrary and capricious under the APA if the agency has failed to consider an important aspect of the problem before it. 231. A court reviewing an agency action may not supply a reasoned basis that the agency itself failed to offer.
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232. Defendants failed to consider the suggestion of many commenters that abortion, contraceptive, and sterilization services could not be viewed as “preventive care.”
233. Defendants failed adequately to take into account voluminous comments suggesting that the scope of the Exemption should be broadened.
234. Defendants did not articulate a reasoned basis for their arbitrary actions by drawing a connection between facts found and the policy decisions it made.
235. Defendants failed to consider or incorporate the use of broader religious exemptions in many other federal laws and regulations.
236. Defendants’ promulgation of the U.S. Government Mandate violated the APA.
237. Because Defendants promulgated the U.S. Government Mandate in violation of the APA, Plaintiffs have no available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
238. Plaintiffs have no adequate remedy at law. 239. The U.S. Government Mandate imposes an immediate and ongoing harm on the Plaintiffs that warrants immediate relief.
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COUNT X ACTING ILLEGALLY IN VIOLATION OF THE APA 240. Plaintiffs hereby repeat and re-allege the allegations set out in Paragraphs 1 though 131 hereinabove. 241. The APA requires that all Government agency action, findings, and conclusions be made “in accordance with law.” 242. The U.S. Government Mandate and its Exemption are illegal and therefore in violation of the APA. 243. The Weldon Amendment states that “[n]one of the funds made available in this Act [to the Department of Labor and the Department of Health and Human Services] may be made available to a Federal agency or program . . . if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(1), 125 Stat. 786, 1111 (2011). 244. The Affordable Care Act states that “nothing in this title (or any amendment by this title) shall be construed to require a qualified health plan to provide coverage of [abortion] services . . . as part of its essential health benefits
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for any plan year.” 42 U.S.C. § 18023(b)(1)(A)(i). It adds that “the issuer of a qualified health plan shall determine whether or not the plan provides coverage of [abortion.]” Id. § 18023(b)(1)(A)(ii).
245. The Affordable Care Act contains no clear expression of an affirmative intention of Congress that employers with religiously motivated objections to the provision of health plans that include coverage for abortioninducing drugs, sterilization, contraception, or related education and counseling should be forced to provide such plans.
246. The U.S. Government Mandate nevertheless requires employer-based health plans to provide coverage for abortion-inducing drugs, contraception, sterilization, and related education. By issuing the U.S. Government Mandate, Defendants have exceeded their authority and ignored the direction of Congress.
247. The U.S. Government Mandate violates RFRA. 248. The U.S. Government Mandate violates the First Amendment. 249. The U.S. Government Mandate is not in accordance with law and thus violates 5 U.S.C. § 706(2)(A). 250. Plaintiffs have no available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile. 251. Plaintiffs have no adequate remedy at law.
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252. The enactment of the U.S. Government Mandate is not in accordance with law and its impending enforcement imposes an immediate and ongoing harm on Plaintiffs that warrants relief.
WHEREFORE, Plaintiffs respectfully pray that this Court: 1. Enter a declaratory judgment that the U.S. Government Mandate
violates Plaintiffs’ rights under RFRA; 2. Enter a declaratory judgment that the U.S. Government Mandate
violates Plaintiffs’ rights under the First Amendment; 3. Enter a declaratory judgment that the U.S. Government Mandate
was promulgated in violation of the APA; 4. Enter an injunction prohibiting the Defendants from enforcing the
U.S. Government Mandate against Plaintiffs; 5. Enter an order vacating the U.S. Government Mandate as to
Plaintiffs; 6. Award Plaintiffs their attorneys’ and expert fees and costs under 42
U.S.C. § 1988; and 7. Award all other relief as the Court may deem just and proper.
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Respectfully submitted, this the 31st day of December, 2012.
By:
/s E. Kendrick Smith E. Kendrick Smith Georgia Bar No. 656725
Janine Cone Metcalf Georgia Bar No. 503401
David M. Monde Georgia Bar No. 515710
Jason T. Burnette Georgia Bar No. 242526
James R. Williams Georgia Bar No. 812411
JONES DAY 1420 Peachtree Street, N.E. Suite 800 Atlanta, Georgia 30309 Telephone: (404) 581-3939 Facsimile (404) 581-8330 eksmith@jonesday.com jmetcalf@jonesday.com dmmonde@jonesday.com jtburnette@jonesday.com jrwilliams@jonesday.com
Counsel for all Plaintiffs
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- and Stephen M. Forte Georgia Bar No. 270035 SMITH GAMBRELL & RUSSELL LLP 1230 Peachtree Street, N.E. Suite 3100 Atlanta, Georgia 30309 Telephone: 404-815-3500 sforte@sgrlaw.com Counsel for Plaintiffs The Roman Catholic Archdiocese of Atlanta, The Most Reverend Wilton D. Gregory, and his successors, Christ the King School and Catholic Charities of the Archdiocese of Atlanta, Inc.
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CERTIFICATE OF SERVICE
I hereby certify that on December 31, 2012, I have caused a copy of this
First Amended and Recast Complaint to be electronically filed with the Clerk of
the Court by using the CM/ECF system, which will send a notice of electronic
filing to the following counsel of record for Defendants.
Michelle R. Bennett Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Room 7306 Washington, D.C. 20530 Tel: (202) 305-8902 Fax: (202) 616-8470 Email: michelle.bennett@usdoj.gov
/s E. Kendrick Smith E. Kendrick Smith GA Bar # 656725 E-mail: eksmith@jonesday.com
JONES DAY Attorney for All Plaintiffs 1420 Peachtree Street, N.E., Suite 800 Atlanta, Georgia 30309 Phone (404) 581-3939 Fax (404) 581-8330

 
 Case 1:12-cv-03489-WSD Document 24 Filed 01/08/13 Page 1 of 2
'.

IN THE UNITED STATES DISTRICT COURT
 FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION


THE ROMAN CATHOLIC

)


ARCHDIOCESE OF ATLANTA, et )


aL,

)

)

Plaintiffs,

)

v.

)

)

KATHLEEN SEBELIUS, in her )

official capacity as Secretary of the )

U.S. Department of Health and

)

Human Services, et al.,

)

)


Defendants.

)


CIVIL ACTION NO.: 1:12-CV­ 3489-WSD

[PROPOSED) ORDER DIRECTING PLAINTIFFS NOT TO FILE A
 WRITTEN RESPONSE TO DEFENDANTS'
 INITIAL MOTION TO DISMISS

Before this Court is Plaintiffs' unopposed motion for direction from this Court that Plaintiffs are not required to file a written response to Defendants' initial Motion to Dismiss, which would otherwise be due on January 10,2013.
Plaintiffs filed their initial complaint in this case on October 5, 2012 (ECF No. 1) and Defendants filed their initial Motion to Dismiss on December 10,2012 (ECF No. 14) (the "Initial Motion"). By docket entry dated December 12,2012, this Court set the due date for Plaintiffs to respond to the Initial Motion at January 10,2013. However, on December 31,2012, Plaintiffs filed their First Amended and Recast

ATI-2544318vl

Case 1:12-cv-03489-WSD Document 24 Filed 01/08/13 Page 2 of 2

Complaint (ECF No. 21) (the "Amended Complaint"), which effectively mooted the Initial Motion. On January 3, 2013, Defendants filed a Notice Regarding Plaintiffs' Amended Complaint (ECF No. 22) (the "Notice"), acknowledging that "[t]he filing of an amended complaint moots a defendant's motion to dismiss the original complaint," and announcing that Defendants "intend to again move for dismissal by January 14,2013, in accordance with Federal Rule of Civil Procedure 15(a)(3)."
In light of the Amended Complaint, the Notice, and Defendants' stated intent to file an amended motion to dismiss on or before January 14,2013, Plaintiffs filed an unopposed motion for direction that they are not required to file a written response to the Initial Motion by January 10,2013.
Therefore, for good cause shown, Plaintiffs' motion is GRANTED. Plaintiffs are excused from filing any written response to the Initial Motion and shall instead file a timely written response to the amended motion to dismiss after any such motion is filed on or before January 14,2013.
IT IS SO ORDERED.

Date

~~l~;U~"'---

United States District Judge

ATI-25443/8v I

 
 Case 1:12-cv-03489-WSD Document 56 Filed 08/19/13 Page 1 of 78

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

THE ROMAN CATHOLIC ARCHDIOCESE )

OF ATLANTA, an association of churches )

and schools;

)

THE MOST REVEREND WILTON D.

)

GREGORY, and his successors, Archbishop )

of the Atlanta Archdiocese;

)

CATHOLIC CHARITIES OF THE ARCHDIOCESE OF ATLANTA, INC.;

) ) )

CATHOLIC EDUCATION OF NORTH

)

GEORGIA, INC.;

)

THE ROMAN CATHOLIC DIOCESE OF ) SAVANNAH, an ecclesiastical territory; and )

THE MOST REVEREND JOHN HARTMAYER, and his successors, Bishop of the Savannah Diocese,

) ) ) )

Plaintiffs,

)

v.

)

)

KATHLEEN SEBELIUS, in her official

)

capacity as Secretary of the U.S. Department )

of Health and Human Services;

)

THOMAS PEREZ, in his official capacity as )

Secretary of the U.S. Department of Labor; )

JACOB J. LEW, in his official capacity as Secretary of the U.S. Department of the Treasury;

) ) ) )

U.S. DEPARTMENT OF HEALTH AND

)

HUMAN SERVICES;

)

U.S. DEPARTMENT OF LABOR; and

)

U.S. DEPARTMENT OF THE TREASURY,

) )

Defendants.

)

CIV. NO.: 12-cv-03489-WSD

Case 1:12-cv-03489-WSD Document 56 Filed 08/19/13 Page 2 of 78
SECOND AMENDED AND RECAST VERIFIED COMPLAINT Pursuant to Fed. R. Civ. P. Rule 15 and this Court’s Order of July 25, 2013 (D.E. #54), Plaintiffs hereby submit their Second Amended and Recast Complaint, which shall substitute for and supersede Plaintiffs’ First Amended and Recast Complaint in this action (D.E. #21), and state as follows: 1. This lawsuit is about one of America’s most fundamental freedoms: the freedom to practice one’s religion without governmental interference. It is not about whether people have a right to abortion-inducing drugs, sterilization, and contraception. These products and services are widely available in the United States, and nothing prevents the Government from making them more widely available. Here, however, the Government is attempting to require Plaintiffs -- all Catholic entities -- to violate their religious beliefs by providing, paying for, and/or facilitating access to those products and services. American history and tradition, embodied in the First Amendment to the United States Constitution and the Religious Freedom Restoration Act (“RFRA”), safeguard religious entities from such overbearing and oppressive governmental action. Plaintiffs therefore seek relief in this Court to protect this most fundamental of American rights.
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2. Plaintiffs provide a wide range of spiritual, educational, and social services to the public, Catholic and non-Catholic alike, throughout the State of Georgia.
3. Plaintiff The Roman Catholic Archdiocese of Atlanta (the “Atlanta Archdiocese”) is an association of those Roman Catholic parishes and organizations located within the 69 counties in northern Georgia under the pastoral care of the Most Reverend Wilton D. Gregory (“Archbishop Gregory”), and his successors in office. The Atlanta Archdiocese carries out its mission directly, through the work of affiliated Catholic entities and associations, through the education of students in 18 Catholic schools operated by and within the Atlanta Archdiocese, and through the education of students in five regional Catholic schools collectively incorporated as Catholic Education of North Georgia, Inc. (“CENGI”)
4. Plaintiff Catholic Charities of the Archdiocese of Atlanta, Inc. (“Catholic Charities”), a nonprofit Georgia corporation headquartered in Atlanta, Georgia, with five regional offices located throughout northern Georgia, is a charitable organization committed to providing “an advocate and friend for individuals and families facing adversity.” Catholic Charities provides “a holistic combination of accredited social services -- life skills education, counseling,
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family stabilization, and immigration legal services -- that remove barriers to selfsufficiency and wholeness.” Catholic Charities serves its neighbors in multiple languages, and regardless of background.
5. CENGI is a separately incorporated religious entity that includes the following five Catholic schools: Blessed Trinity High School, Holy Redeemer, Our Lady of Victory, Queen of Angels, and Our Lady of Mercy. The CENGI schools provide a comprehensive, high quality Catholic education, including both secular and religious subjects. The schools charge tuition for their services and currently serve more than 2,300 students. The CENGI schools employ approximately 200 teachers and welcome students of all faiths or of no faith.
6. Plaintiff The Catholic Diocese of Savannah (the “Diocese of Savannah”) is a religious association of parishes and schools inclusive of those Roman Catholic parishes and organizations located in 90 counties in south Georgia under the pastoral care of the Most Reverend John Hartmayer (“Bishop Hartmayer”), Bishop of the Roman Catholic Diocese of Savannah and his successors in office. The Diocese of Savannah carries out its mission directly, through the work of affiliated Catholic entities and associations, and through the education of students in its Catholic schools.
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7. Plaintiffs’ work is guided by and consistent with Roman Catholic beliefs, including the requirement that they serve those in need, regardless of their religion. This is perhaps best captured by words attributed to St. Francis of Assisi: “Preach the Gospel at all times. Use words if necessary.” As Pope Benedict more recently stated: “[L]ove for widows and orphans, prisoners, and the sick and needy of every kind, is as essential to [the Catholic Church] as the ministry of the sacraments and preaching of the Gospel. The Church cannot neglect the service of charity any more than she can neglect the Sacraments and the Word.” Thus, Catholic individuals and organizations consistently work to create a more just community by serving any and all neighbors in need.
8. Plaintiffs address the needs of Georgia residents in a variety of ways. The Atlanta Archdiocese, CENGI, and the Diocese of Savannah serve families through the education of the students attending their Catholic schools. The two dioceses also provide charitable service statewide through dozens of programs undertaken by their respective parishes.
9. Catholic Church teachings also uphold the firm conviction that sexual union should be reserved to married couples who are open to the creation of life; thus, artificial interference with the creation of life, including through abortion, sterilization, or contraception, is contrary to Catholic doctrine.
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10. Defendants have promulgated various rules (collectively, “the Mandate”), as part of the 2010 Patient Protection and Affordable Care Act (the “Affordable Care Act” or the “Act”), that force Plaintiffs to violate their sincerelyheld religious beliefs. These rules, first proposed on July 19, 2010, require Plaintiffs and other Catholic and religious organizations to provide, pay for, and/or facilitate insurance coverage for abortion-inducing drugs, sterilization, and contraception, in violation of their religious beliefs. In response to the intense public criticism that the Government’s original proposal provoked, the Government recently finalized changes to the interim rule (the “Final Rule”) that, it asserts, are intended to eliminate the substantial burden that the Mandate imposed on religious beliefs. In fact, however, these changes made that burden worse by significantly increasing the number of religious organizations subject to the Mandate, and by driving a wedge between religious organizations, like the Atlanta Archdiocese, and their equally religious charitable arms, such as Plaintiffs Catholic Charities and CENGI. Reversing course from its prior form, the Mandate now prohibits the Atlanta Archdiocese and the Savannah Diocese from ensuring that their respective religious affiliates provide health insurance consistent with Catholic doctrine.
11. In its current form, the Mandate contains three basic components:
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(a) First, it requires employer group health plans to cover, without cost-sharing requirements, all “FDA-approved contraceptive methods and contraceptive counseling” -- a term that includes abortion-inducing drugs, contraception, sterilization, and related counseling and education.
(b) Second, the Mandate creates a narrow exemption for certain “religious employers” (the “Exemption”), now defined to include only organizations that are “organized and operate[] as . . . nonprofit entit[ies] and [are] referred to in 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” The referenced Code section does not, nor is it intended to, address religious liberty. Instead, it is a paperwork-reduction provision that addresses whether and when tax-exempt nonprofit entities must file an annual informational tax return, known as a Form 990. As the Government has repeatedly affirmed, this exemption is intended to protect only “the unique relationship between a house of worship and its employees in ministerial positions.” 78 Fed. Reg. 8,461 (Feb. 6, 2013), 39,874 (July 2, 2013). Consequently, the only organizations that qualify for the exemption are “churches, synagogues, mosques, and other houses of worship, and religious orders.” Id. at 8461. This is the narrowest “conscience exemption” ever adopted in federal law, and it grants the Government broad discretion to
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sit in judgment of which groups qualify as “religious employers,” thus favoring certain religious organizations over others and entangling the Government in matters of religious faith and practice.
(c) Third, the Mandate creates a second class of religious entities that, in the Government’s view, are not sufficiently “religious” to qualify for the Exemption. These religious entities, deemed “eligible organizations,” are subject to a so-called “accommodation” that is intended to eliminate the burden that the Mandate imposes on their religious beliefs. The “accommodation,” however, is illusory: it continues to require “eligible organizations” to participate in a new employer-based scheme to provide, pay for, and/or facilitate provision of the objectionable coverage to their employees. 12. For example, the Exemption’s narrow definition of “religious employer” likely excludes, among other entities, Catholic Charities and CENGI, even though they are plainly “religious” organizations under any reasonable definition of the term. Instead, they appear to be merely “eligible organizations” subject to the so-called “accommodation.” But notwithstanding the “accommodation,” these Plaintiffs are required to enter into a contract with an insurance company (or for self-insured organizations, a third party administrator),
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which, as a direct result, is required to provide or procure the objectionable coverage for Plaintiffs’ employees. Consequently, the religious organizations’ actions are the trigger and but-for cause of the provision of the objectionable products and services. Plaintiffs cannot avoid causing and facilitating the provision of objectionable products and services -- for example, by contracting with an insurance company that will not provide or procure the objectionable products and services or even dropping their health insurance plans altogether -without subjecting themselves to crippling fines and/or lawsuits by individuals and governmental entities.
13. Plaintiffs, moreover, must facilitate the provision of the objectionable services in other ways that exacerbate their compelled cooperation in religiously impermissible conduct. For example, to be eligible for the so-called “accommodation,” Plaintiffs must provide a “certification” to their insurance provider or third party administrator setting forth their religious objections to the Mandate. Providing this “certification,” in turn, automatically triggers an obligation on the part of the insurance provider or administrator to procure the objectionable products and services for Plaintiffs’ employees. A religious organization’s self-certification, therefore, is a trigger and but-for cause of providing the objectionable coverage.
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14. In addition, notwithstanding the “accommodation,” the Mandate “requires the objecting religious organization to fund or otherwise facilitate the morally objectionable coverage.”1 While the Government asserts that providing the objectionable coverage will be “cost-neutral,” that assertion ignores the regulatory and administrative costs that will inevitably force insurance companies and third-party administrators to increase the prices they charge religious employers subject to the “accommodation.” The Government’s assertion of “cost neutrality” is also based on the implausible (and morally objectionable) assumption that “lower costs” from “fewer childbirths” will offset the cost of the contraceptive coverage. 78 Fed. Reg. at 8,463 (Feb. 6, 2013). More importantly, even if the Government’s assumption were correct, it simply means that premiums previously going toward childbirths will be redirected to contraceptive and related services in order to achieve the (objectionable) goal of “fewer childbirths.”
15. In short, the “accommodation” requires non-exempt religious organizations, including some of the Plaintiffs, to provide, pay for, and/or facilitate abortion-inducing products, contraception, sterilization and related counseling, contrary to their core religious beliefs.
1 Comments of U.S. Conference of Catholic Bishop, at 3 (Mar. 20, 2013), available at http://www.usccb.org/about/general-counsel/rulemaking/upload/2013NPRM-Comments-3-20-final.pdf.
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16. Even though the Atlanta Archdiocese and the Savannah Diocese appear to qualify as “religious employer[s]” under the Exemption, as modified by the Final Rule, the Mandate still requires them to act in violation of their Catholic beliefs. For example, the Atlanta Archdiocese operates a self-insurance plan that encompasses not only individuals directly employed by the Archdiocese itself, but in addition individuals working for or employed by affiliated Catholic organizations including, but not limited to, Catholic Charities and CENGI. Because Catholic Charities and CENGI do not, themselves, appear to qualify as exempt “religious employers,” the Archdiocese must either: (i) employ those who work at its affiliated Catholic entities; (ii) sponsor a plan that will provide, pay for, and/or facilitate the provision of the objectionable insurance coverage to the employees of those affiliated Catholic entities, or (iii) expel them from the Archdiocese’s self-insurance plan which, in turn, will require Catholic Charities, CENGI, and other affiliated Catholic organizations themselves to provide, pay for, and/or facilitate access to the objectionable products and services.
17. This aspect of the Mandate reflects a change from the Government’s original proposal of July 19, 2010, which allowed Catholic Charities workers2 and CENGI employees to remain on the Atlanta Archdiocese’ plan, which, in turn,
2 Catholic Charities’ workers are borrowed from the Atlanta Archdiocese.
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would have shielded them from the Mandate if the Atlanta Archdiocese was exempt.3 The Final Rule, in contrast, removes this protection and thereby increases the number of religious organizations subject to the Mandate. And in so doing, the Mandate now effectively divides the Catholic Church, artificially separating its “houses of worship” from its faith in action, directly contrary to Pope Benedict’s admonition that “[t]he Church cannot neglect the service of charity any more than she can neglect the Sacraments and the Word.”
18. The Mandate is irreconcilable with the First Amendment, RFRA, and other laws. The Government has demonstrated no compelling interest in forcing Plaintiffs to provide, pay for, and/or facilitate access to abortion-inducing drugs, sterilization, and contraception. Nor has it shown that the Mandate is the least restrictive means of advancing any interest it may have in increasing access to these services, which are already widely available without the Government conscripting Plaintiffs as vehicles for the dissemination of products and services to which they so strongly object. The Government, therefore, cannot justify its decision to force Plaintiffs to provide, pay for, and/or facilitate access to these products and services in violation of their religious beliefs.
3 See 77 Fed. Reg. 16,501, 16,502 (Mar. 21, 2012).
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19. Accordingly, Plaintiffs respectfully seek (i) a declaration that the Mandate cannot lawfully be applied to them; (ii) an injunction barring its enforcement; and (iii) an order vacating the Mandate.
PRELIMINARY MATTERS 20. The Atlanta Archdiocese is an unincorporated association of 99 parishes and 18 Catholic schools, with its principal place of business in Smyrna, Georgia. It is organized exclusively for charitable, religious, and educational purposes under Section 501(c)(3) of the Internal Revenue Code (“IRC”). 21. Catholic Charities is a nonprofit Georgia corporation that is part of the Catholic ministry of the Atlanta Archdiocese. It is organized exclusively for charitable, religious, and educational purposes under IRC § 501(c)(3). 22. CENGI is a nonprofit Georgia corporation that, among other things, owns and operates five independent Catholic schools. It is organized exclusively for charitable, religious, and educational purposes under IRC § 501(c)(3). 23. The Diocese of Savannah is a religious association of parishes and schools, with its principal place of business located in Savannah, Georgia. It is organized exclusively for charitable, religious, and educational purposes under IRC § 501(c)(3).
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24. Defendant Kathleen Sebelius is the Secretary of the U.S. Department of Health and Human Services (“HHS”). She is sued in her official capacity.
25. Defendant Thomas Perez is the Secretary of the U.S. Department of Labor. He is sued in his official capacity.
26. Defendant Jacob J. Lew is the Secretary of the U.S. Department of the Treasury. He is sued in his official capacity.
27. Defendant U.S. Department of Health and Human Services is an executive agency of the United States within the meaning of RFRA and the Administrative Procedure Act (“APA”).
28. Defendant U.S. Department of Labor is an executive agency of the United States within the meaning of RFRA and the APA.
29. Defendant U.S. Department of the Treasury is an executive agency of the United States within the meaning of RFRA and the APA.
30. This is an action for declaratory and injunctive relief under 5 U.S.C. § 702, 28 U.S.C. §§ 2201, 2202, and 42 U.S.C. § 2000bb-1.
31. An actual, justiciable controversy currently exists between Plaintiffs and Defendants. Absent a declaration resolving this controversy and the validity of the Mandate, Plaintiffs will be required to provide, pay for, and/or facilitate access
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to objectionable products and services in contravention of their sincerely-held religious beliefs, as described below.
32. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
33. This Court has subject-matter jurisdiction over this action under 28 U.S.C. §§ 1331, 1343(a)(4), and 1346(a)(2).
34. Venue is proper in this Court under 28 U.S.C. § 1391(e)(1). THE PARTIES
ARCHBISHOP GREGORY AND THE ATLANTA ARCHDIOCESE 35. Archbishop Gregory, in his capacity as Archbishop of the Atlanta Archdiocese, is responsible for serving more than 900,000 Catholics residing throughout 69 counties in northern Georgia. Originally established in 1956 through a division of the Diocese of Savannah, the Atlanta Archdiocese was elevated to the rank of archdiocese on February 10, 1962. 36. Archbishop Gregory is assisted in his ministry by a staff of clergy, religious brothers and sisters, and lay people. Except where religion is a bona fide prerequisite for fulfilling a job requirement, the Atlanta Archdiocese imposes no religious litmus test on its employees and employs Catholics and non-Catholics alike.
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37. The Atlanta Archdiocese carries out a tripartite spiritual, educational, and social service mission. Through the ministry of its priests, the Atlanta Archdiocese ensures the regular availability of the Sacraments to all Catholics living in or visiting the northern part of Georgia.
THE ATLANTA CATHOLIC SCHOOLS 38. The Catholic Church’s educational mission within the Atlanta Archdiocese is carried out largely through 18 Catholic schools, and through the five independent Catholic schools that are part of CENGI. Collectively, those schools serve nearly 12,000 students and employ more than 1,800 full-time and 3,000 part-time teachers and administrators. 39. The Catholic schools within the Atlanta Archdiocese and the CENGI schools welcome students of any or no faith. To serve as many children as possible, the Atlanta Archdiocese expends significant funds in tuition assistance programs. A substantial number of the students and faculty are not Catholic. 40. The Catholic schools within the Atlanta Archdiocese and CENGI have established certain priorities that distinguish them from public educational institutions. They provide an education based on Christ’s teaching and Catholic values, and focus on the formation of strong moral character, the furtherance of academic excellence, the inspiration to serve others and the motivation to achieve
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the students’ potential in the local and the world communities. High academic standards help each student reach his or her potential. Nationally, 99.4% of students in Catholic high schools graduate.
CATHOLIC CHARITIES 41. The mission of Catholic Charities is to be a faith-based advocate and friend for individuals and families facing adversity by providing multiple accredited social services that remove barriers to self-sufficiency and wholeness. Last year, Catholic Charities directly served more than 21,000 people, without regard to religious affiliation. 42. Catholic Charities serves the needy, underserved, and underprivileged in countless ways, including immigration legal services, refugee resettlement services, outpatient mental health counseling, foreclosure intervention and prevention, disaster preparedness and response education, financial literacy education, English language instruction, and marriage counseling. More than 75 workers at Catholic Charities provide services to those in need in over 16 languages. 43. Serving the needs of women and children is a priority of Catholic Charities. It operates numerous programs for new and prospective mothers, including in-home parenting education, pregnancy support services, post-adoption
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services, and play therapy for children. The pregnancy support counselors at Catholic Charities focus on the prospective mother’s emotional needs during pregnancy, and help mothers to make positive, long-term plans for the child. Last year, 46 women were counseled through the pregnancy support program, and 86% of the mothers who received counseling prior to the birth of their child actively prepared for the child by making a parenting, kinship, or adoption plan. Catholic Charities provides millions of dollars in services annually (excluding administrative and fund-raising costs) for the communities it serves. Catholic Charities does not ask whether the people it serves are Catholic.
44. Catholic Charities maintains offices in Atlanta, Chamblee, Lilburn and Athens, Georgia. It also provides counseling services at parishes throughout northern Georgia, including parishes in Alpharetta, Conyers, Cumming, Douglasville, Lawrenceville, Marietta, Norcross, Duluth, Flowery Branch, Hapeville, Johns Creek, Peachtree City, Roswell, Sandy Springs, and Woodstock. Catholic Charities does not inquire about the religious commitments of its workers and does not know how many of its workers are Catholic.
BISHOP HARTMAYER AND THE DIOCESE OF SAVANNAH 45. Bishop Hartmayer, in his capacity as Bishop of the Diocese of Savannah, is responsible for 55 parishes and 24 missions in 90 counties located
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throughout the southern part of Georgia. The Diocese of Savannah has been serving these communities since it was established by Pope Pius IX in 1850. It currently serves a Catholic population of more than 77,000 people.
46. Since 2011, Bishop Hartmayer has overseen the multifaceted mission of delivering spiritual, educational, and social services to residents, both Catholic and non-Catholic alike. The parishes maintain their own charitable efforts and serve an indeterminate number of persons of all faiths who are homeless, hungry, elderly, or otherwise in need of material assistance. Because it serves people regardless of their faith, the Diocese of Savannah does not know how many of those that it serves are Catholic.
47. The Diocese of Savannah employs hundreds of people, the majority of whom are full-time employees. While most of these employees likely identify themselves as Catholic, except where religion is a bona fide requirement for the job, the Diocese does not inquire into the faiths of potential employees.
48. The Diocese of Savannah also serves the community through its Catholic schools. The Office of Catholic Schools is vested with responsibility for all of the Catholic schools within the Diocese, which include 16 elementary schools, five high schools, and various preschool programs. Collectively, these schools educate approximately 5,000 students.
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49. The mission of the Diocese of Savannah Catholic Schools is to “encourage and support” students to reach the fullness of their potential spiritually, intellectually, aesthetically, emotionally, socially, and physically.” These Catholic schools offer an educational experience unlike any other in the area. As Cardinal Donald Wuerl said about Catholic education: “We educate people not just for exams, but for life eternal. We educate the whole person: mind, body, and spirit.”
50. Like the Catholic schools of the Atlanta Archdiocese and CENGI, the Catholic schools of the Diocese of Savannah maintain high standards for academic excellence. They are open to and serve all children, without regard to the students’ religion, race or financial condition. To make a Catholic education available to as many children as possible, the Diocese of Savannah expends substantial funds in tuition assistance programs. Approximately one-third of the students who attend the Catholic schools of the Diocese of Savannah are not Catholic, and approximately one-quarter of them are minorities.
51. The Diocese of Savannah Catholic Schools do not consider religious affiliation in hiring for most positions. While the Diocese does not know exactly how many teachers in its schools are Catholic, it is likely that a substantial percentage of the Diocese’s teachers do not share its religious tenets.
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THE IMPACTED HEALTH PLANS 52. The Atlanta Archdiocese operates the Roman Catholic Archdiocese of Atlanta Group Health Care Plan (the “Atlanta Plan”), which provides coverage to the employees of, among other organizations, the Atlanta Archdiocese and CENGI, and individuals working for Catholic Charities. The Archdiocese does not contract with a separate insurance company to provide healthcare coverage to its employees. Instead, it functions as its own insurance company, underwriting its employees’ medical costs. The Archdiocese contracts with Meritain Health, a third-party administrator, to provide certain claims and other related administration services. The Atlanta Plan does not cover abortion-inducing drugs or sterilization. Contraceptives are not covered by the Plan unless they are necessary for medically diagnosed conditions unrelated to contraception. 53. The Atlanta Plan year begins on January 1. 54. The Diocese of Savannah operates two self-insured health plans (collectively, the “Savannah Plan”), which provide coverage to the employees of the Diocese, the parishes, and the schools within the Diocese. Meritain Health manages benefit applications, claims processing, and payment of claims for the Savannah Plan on behalf of the Diocese of Savannah. The Savannah Plan does not cover abortion-inducing drugs or sterilization. Contraceptives are not covered by
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the Plan unless they are necessary for medically diagnosed conditions unrelated to contraception.
55. The Savannah Plan year begins on July 1. 56. “[T]he Affordable Care Act preserves the ability of individuals to retain coverage under a group health plan or health insurance coverage in which the individual was enrolled on March 23, 2010.”4 These so-called “grandfathered health plans do not have to meet the requirements” of the Mandate, but only so long as the plans offer substantially the same benefits at substantially the same costs.5 57. Because of financial pressures caused by increasing healthcare costs, the Diocese of Savannah was forced to modify significantly its existing Plan on July 1, 2011. Among other changes, the Diocese increased employee deductibles and out-of-pocket maximums by approximately 33% above those amounts associated with the Savannah Plan as of March 23, 2010. Further, the Diocese introduced an additional “Value Plan” for its employees on July 1, 2012. Plaintiffs
4 Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 75 Fed. Reg. 41,726, 41,731 (July 19, 2010); 42 U.S.C. § 18011.
5 75 Fed. Reg. at 41731; 26 C.F.R. § 54.9815-1251T(g); 45 C.F.R. § 147.140(g); 29 C.F.R. § 2590.715-1251(g).
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believe that, because of these changes and others, the Savannah Plan does not meet the Affordable Care Act’s definition of a “grandfathered” plan.
58. Plaintiffs believe that the Atlanta Plan currently meets the Affordable Care Act’s definition of a “grandfathered” Plan. As a result of this, the Atlanta Archdiocese has included a statement describing its grandfathered status in its Plan materials, as required by 26 C.F.R. § 54.9815-1251T(a)(2)(ii).6
59. To maintain its putative grandfathered status, however, the Atlanta Archdiocese is locked into its current health plan, unable to adjust it in response to the ever-changing healthcare marketplace. Thus, to avoid compromising its core religious beliefs, the Atlanta Archdiocese is stuck in perpetuity with providing its current Plan, and forgoing necessary modifications that would benefit its Plan participants and its affiliated Catholic organizations.
60. In any event, the Atlanta Plan will lose its grandfathered status in the near future for reasons that cannot be avoided. For example, the employer contribution to the premium cannot decrease by more than 5% of the cost of coverage compared to the employer contribution on March 23, 2010.7 The Atlanta Plan’s costs, however, have increased by 14% a year since March 23, 2010. The
6 See also 45 C.F.R. § 147.140(a)(2); 29 C.F.R. § 2590.715-1251(a)(2). 7 26 C.F.R. §54.9815-1251T(g)(1)(v); 45 C.F.R. § 147.140(g)(1)(v); 29 C.F.R. § 2590.715-1251(g)(1)(v).
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Atlanta Archdiocese has had to absorb the bulk of these millions of dollars in increased healthcare premiums since March 23, 2010, and may be unable to continue to do so without threatening its overall solvency. Given the wellestablished, long-term trajectory of healthcare costs, the Atlanta Archdiocese anticipates that, as an employer, it will be unable to continue to pay within 5 percentage points of what it had paid in 2010 by January 1, 2014. Even the Government acknowledges that, as health costs escalate, the number of grandfathered health plans will decrease substantially in the near future.8
STATUTORY AND REGULATORY BACKGROUND THE AFFORDABLE CARE ACT
61. On March 23, 2010, Congress enacted the Affordable Care Act.9 The Act established many new requirements for “group health plan[s],” broadly defined as “employee welfare benefit plan[s]” within the meaning of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1002(1), that “provide[] medical care . . . to employees or their dependants.” 42 U.S.C. § 300gg-91(a)(1).
8 See 75 Fed. Reg. 41,726, 41,731 (July 19, 2010); see also Coverage of Certain Preventive Services Under the Affordable Care Act, 78 Fed. Reg. 39,870, 39,887 n.49 (July 2, 2013) (“[I]t is expected that a majority of plans will lose their grandfathered status by the end of 2013.”).
9 See Pub. L. No. 111-148, 124 Stat. 119.
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62. As relevant here, the Act requires an employer’s group health plan to cover women’s “preventive care.” Specifically, it indicates that: “[a] group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum[,] provide coverage for and shall not impose any cost sharing requirements for[,] . . . with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.” 42 U.S.C. § 300gg-13(a)(4)). Because the Act prohibits “cost sharing requirements,” the health plan must pay for the full cost of these “preventive care” services without any deductible or co-payment.
63. “[T]he Affordable Care Act preserves the ability of individuals to retain coverage under a group health plan or health insurance coverage in which the individual was enrolled on March 23, 2010.”10 These so-called “grandfathered health plans do not have to meet the requirements” of the Mandate. 75 Fed. Reg. at 41,731 (July 9, 2010). HHS estimates that “98 million individuals will be enrolled in grandfathered group health plans in 2013.” Id. at 41,732.
10 Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 75 Fed. Reg. 41,726, 41,731 (July 19, 2010) (“Interim Final Rules”); 42 U.S.C. § 18011.
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64. Federal law provides several mechanisms to enforce the requirements of the Act, including the Mandate. For example:
(a) Under the IRC, certain employers who fail to offer “full-time employees (and their dependents) the opportunity to enroll in minimum essential coverage under an eligible employer-sponsored plan” will be exposed to annual fines of $2,000 per full-time employee.11
(b) Under the IRC, group health plans that fail to provide certain required coverage may be subject to a penalty of $100 a day per covered individual.12
(c) Under ERISA, plan participants can bring civil actions against insurers for unpaid benefits.13
(d) Similarly, the Secretary of Labor may bring an enforcement action against group health plans of employers that violate the Mandate, as incorporated by ERISA.14
11 See 26 U.S.C. § 4980H(a), (c)(1). 12 See 26 U.S.C. § 4980D(b); see also Jennifer Staman & Jon Shimabukuro, Cong. Research Serv., RL 7-5700, Enforcement of the Preventative Health Care Services Requirements of the Patient Protection and Affordable Care Act (2012) (asserting that this applies to employers who violate the “preventive care” provision of the Affordable Care Act). 13 29 U.S.C. § 1132(a)(1)(B); see also Cong. Research Serv., RL 7-5700.
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65. The Act’s provisions, along with other federal statutes, reflect a clear congressional intent that the executive agency charged with identifying the “preventive care” should exclude all abortion-related services.
66. For example, the Weldon Amendment, which has been included in every HHS and Department of Labor appropriations bill since 2004, prohibits certain agencies from discriminating against an institution based on that institution’s refusal to provide abortion-related services. Specifically, it states that “[n]one of the funds made available in this Act [to the Department of Labor and the HHS] may be made available to a Federal agency or program . . . if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” Consolidated Appropriations Act, 2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(1), 125 Stat 786, 1111 (2011). The term “health care entity” is defined to include, among other things, “a health insurance plan.” Id. § 507(d)(2).
67. The legislative history of the Act also demonstrates a clear congressional intent to prohibit the executive branch from requiring group health
14 See 29 U.S.C. § 1132(b)(3); see also Cong. Research Serv., RL 7-5700 (asserting that these penalties can apply to employers and insurers who violate the “preventive care” provision of the Affordable Care Act).
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plans to provide abortion-related services. For example, the House of Representatives originally passed a bill that included an amendment by Congressman Bart Stupak prohibiting the use of federal funds for abortion services. See H.R. 3962, 111th Cong. § 265 (Nov. 7, 2009). The Senate version, however, lacked that restriction. S. Amend. No. 2786 to H.R. 3590, 111th Cong. (Dec. 23, 2009). To avoid a filibuster in the Senate, congressional proponents of the Act engaged in a procedure known as “budget reconciliation” that required the House to adopt the Senate version of the bill largely in its entirety. Congressman Stupak and other pro-life House members, however, indicated that they would refuse to vote for the Senate version because it failed adequately to prohibit federal funding of abortion. In an attempt to address these concerns, President Obama issued an executive order providing that no executive agency would authorize the federal funding of abortion services. See Exec. Order No. 13535, 75 Fed. Reg. 15,599 (Mar. 24, 2010).
68. The Act, therefore, was passed on the central premise that all agencies would uphold and follow “longstanding Federal laws to protect conscience” and to prohibit federal funding of abortion services. Id. That executive order was consistent with a 2009 speech that President Obama gave at the University of Notre Dame, in which he indicated that his Administration would honor the
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consciences of those who disagree with abortion, and draft sensible conscience clauses.
THE EVOLVING MANDATE 69. Less than two years later, however, Defendants promulgated the Mandate, subverting the Act’s clear purpose to protect the rights of conscience. The Mandate immediately prompted intense criticism and controversy, in response to which the Government has undertaken various revisions. None of these revisions, however, alleviates the burden that the Mandate imposes on Plaintiffs’ religious beliefs. To the contrary, these revisions have resulted in a Final Rule that is significantly worse than the original rule.
THE ORIGINAL MANDATE 70. On July 19, 2010, Defendants issued initial interim final rules addressing the statutory requirement that group health plans provide coverage for women’s “preventive care.” 75 Fed. Reg. 41,726. These interim rules did not define “preventive care,” instead noting that “[t]he Department of HHS is developing these guidelines and expects to issue them no later than August 1, 2011.” Id. at 41,731. 71. To develop the definition of “preventive care,” HHS outsourced its deliberations to the Institute of Medicine (“IOM”), a non-governmental
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“independent” organization. The IOM in turn created a “Committee on Preventive Services for Women,” composed of 16 members who were selected in secret without any public input. At least eight of the Committee members had founded, chaired, or worked with “pro-choice” advocacy groups (including five different Planned Parenthood entities) that have well-known political and ideological views, including strong animus toward Catholic teachings on abortion and contraception.
72. The IOM Committee invited presentations from several “pro-choice” groups, such as Planned Parenthood and the Guttmacher Institute (named for a former president of Planned Parenthood), without inviting any input from groups that oppose government-mandated coverage for abortion, contraception, and sterilization. Instead, opponents were relegated to lining up for brief openmicrophone sessions at the end of each meeting.
73. At the close of this process, on July 19, 2011, the IOM issued a final report recommending that “preventive care” for women be defined to include “the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for [all] women with reproductive capacity.”15
15 Inst. Of Med., Clinical Preventive Services for Women: Closing the Gaps,” at 109-10 (2011).
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74. The pervasive bias of the IOM process spurred one member of the Committee, Dr. Anthony Lo Sasso, to dissent from the final recommendation, writing: “[T]he committee process for evaluation of the evidence lacked transparency and was largely subject to the preferences of the committee’s composition. Troublingly, the process tended to result in a mix of objective and subjective determinations filtered through a lens of advocacy.” 16
75. At a press briefing the next day, the chair of the IOM Committee fielded a question from the audience regarding the “coercive dynamic” of the Mandate, asking whether the Committee considered the “conscience rights” of those who would be forced to pay for coverage that they found objectionable on moral and religious grounds. In response, the chair stated: “[W]e did not take into account individual personal feelings.”17 The chair later expressed concern to Congress about considering religious objections to the Mandate because to do so
16 Id. at 232. 17 See Linda Rosenstock, Chair, Inst. Of Med. Comm. On Preventive Servs. For Women, Press Briefing (July 20, 2011), available at http://www.iom .edu/Reports/2011/Clinical-Preventive-Services-for-Women-Closing-theGaps.aspx.
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would risk a “slippery slope” that could occur by “opening up that door” to religious liberty.18
76. Less than two weeks after the IOM report, without pausing for notice and comment, HHS issued a press release on August 1, 2011, announcing that it would adopt the IOM’s definition of “preventive care” in its entirety, including all “FDA-approved contraception methods and contraceptive counseling.”19 HHS ignored the religious, moral and ethical dimensions of the decision and the ideological bias of the IOM Committee and stated that it had “relied on independent physicians, nurses, scientists, and other experts” to reach a definition that was “based on scientific evidence.” Under the final “scientific” definition, the category of mandatory “preventive care” extends to “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.”20
77. The Government’s definition of mandatory “preventive care” also includes abortion-inducing drugs. For example, the FDA has approved
18 See Executive Overreach: The HHS Mandate Versus Religious Liberty: Hearing Before the H. Comm. On the Judiciary, 112th Cong. (2012) (testimony of Linda Rosenstock, Chair, Inst. Of Med. Comm. On Preventive Servs. For Women).
19 See U.S. Dept. of Health and Human Services, “Affordable Care Act Ensures Women Receive Preventive Services at No Additional Cost,” available at http://www.hhs.gov/news/press/2011pres/08/20110801b.html.
20 See “Women’s Preventive Services: Required Health Plan Coverage Guidelines,” http://www.hrsa.gov/womensguidelines.
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“emergency contraceptives,” such as the morning-after pill (otherwise known as Plan B), which can prevent an embryo from implanting in the womb, and Ulipristal (otherwise known as HRP 2000 or ella), which likewise can induce abortions.
THE ORIGINAL EXEMPTION 78. Shortly after announcing its definition of “preventative care,” the Government proposed a narrow exemption from the Mandate for a small category of “religious employers” that met all of the following four criteria: “(1) The inculcation of religious values is the purpose of the organization”; “(2) The organization primarily employs persons who share the religious tenets of the organization”; “(3) The organization serves primarily persons who share the religious tenets of the organization”; and “(4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.”21 79. As the Government itself admitted, this narrow exemption was intended to protect only “the unique relationship between a house of worship and its employees in ministerial positions.”22 It provided no protection for religious
21 76 Fed. Reg. at 46,626 (Aug. 3, 2011) (codified at 45 C.F.R. § 147.130(a)(1)(iv)(B)).
22 Id. at 46,623.
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universities, elementary and secondary schools, hospitals, and charitable organizations.
THE ANPRM 80. The sweeping nature of the Mandate was subject to widespread criticism. Religious leaders from across the country protested that they should not be punished or considered less religious simply because they chose to live out their faith by serving needy members of the community who might not share their beliefs. 81. The Government initially refused to reconsider its position. Instead, it “finalize[d], without change,” the narrow exemption as originally proposed. 77 Fed. Reg. at 8,729 (Feb. 15, 2012). At the same time, the Government announced that it would offer a “a one-year safe harbor from enforcement” for religious organizations that remained subject to the Mandate. Id. at 8,728. As noted by Cardinal Timothy Dolan, the “safe harbor” effectively gave religious groups “a year to figure out how to violate our consciences.” 82. A month later, under continuing public pressure, the Government issued an Advance Notice of Proposed Rulemaking (“ANPRM”) that, it claimed, set out a solution to the religious-liberty controversy created by the Mandate. 77 Fed. Reg. 16,501 (Mar. 21, 2012). The ANPRM did not revoke the Mandate, and
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in fact reaffirmed the Government’s view at the time that the Exemption would not be expanded. Id. at 16,501-08. Instead, the ANPRM offered hypothetical “possible approaches” that would, the Government claimed, somehow solve the religious-liberty problem without granting an exemption for objecting religious organizations. Id. at 16,507.
THE ORIGINAL COMPLAINT AND THE GOVERNMENT’S PROMISE OF NON-ENFORCEMENT
83. On October 5, 2012, Plaintiffs filed this lawsuit in the U.S. District Court for the Northern District of Georgia seeking to enjoin the Mandate on the ground that, among other things, it violated their rights of religious conscience under RFRA and the First Amendment. [Dkt. #1] In response to this and similar litigation, the Government referenced the ANPRM, promised that the regulations would never be enforced in their present form, and represented that it was planning to modify the regulations to accommodate religious organizations with religious objections to contraceptive coverage before the safe harbor expired in August 2013.
84. According to the Government: “[D]efendants finalized an amendment to the preventive services coverage regulations, issued guidance on a temporary enforcement safe harbor, and initiated a rulemaking to further amend the regulations, all designed to address religious concerns such as those raised by
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plaintiffs. The finalized amendment confirms that group health plans sponsored by certain religious employers (and any associated group health insurance coverage) are exempt from the requirement to cover contraceptive services.” Mem. In Support of Defs.’ Mot. to Dismiss Amended Complaint [Dkt. #27-1] at 2. Indeed, the Government assured the Court that “[t]he amended regulations likely will address plaintiffs’ concerns (after all, that is the intent of the ongoing rulemaking)[.]” Id. at 4.
85. In response to the Government’s motion to dismiss, Plaintiffs made clear that the ANPRM, even if enacted, would still require Plaintiffs to provide, pay for, and/or facilitate the provision of objectionable insurance coverage for their employees and, therefore, would not relieve the burden on their religious exercise. Plfs’ Mem. in Opposition to Defs’ Motion to Dismiss Amended Complaint [ Dkt. #37] at 8 n.4, 32.
THE NPRM 86. On February 1, 2013, the Government issued a Notice of Proposed Rulemaking (“NPRM”), setting forth in further detail its proposal to “accommodate” the rights of Plaintiffs and other religious organizations. Like the Government’s previous proposals, the NPRM was once again met with strenuous opposition, including more than 400,000 comments. For example, the U.S.
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Conference of Catholic Bishops stated that “the ‘accommodation’ still requires the objecting religious organization to fund or otherwise facilitate the morally objectionable coverage. Such organizations and their employees remain deprived of their right to live and work under a health plan consonant with their explicit religious beliefs and commitments.”23
87. Despite this strenuous opposition, on June 28, 2013, the Government issued the Final Rule that adopted substantially all of the NPRM’s proposal. See 78 Fed. Reg. 39,870 (July 2, 2013).
88. The Final Rule makes three changes to the Mandate. As described below, none of these changes relieves the unlawful burdens placed on Plaintiffs and other religious organizations. Indeed, one of them significantly increases that burden by increasing the number of religious organizations subject to the Mandate.
89. First, the Final Rule makes what the Government concedes to be a non-substantive, cosmetic change to the definition of “religious employer.” In particular, it eliminates the first three prongs of that definition, such that, under the new definition, an exempt “religious employer” is simply “a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the
23 Comments of U.S. Conference of Catholic Bishop, at 3 (Mar. 20, 2013), available at http://www.usccb.org/about/general-counsel/rulemaking/upload/2013NPRM-Comments-3-20-final.pdf.
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Internal Revenue Code of 1986, as amended.” See 78 Fed. Reg. 39,874 (July 2, 2013). As the Government has admitted, this new definition does “not expand the universe of employer plans that would qualify for the exemption beyond that which was intended in the 2012 final regulations.” Id. Instead, it continues to “restrict[] the exemption primarily to group health plans established or maintained by churches, synagogues, mosques, and other houses of worship, and religious orders.” 78 Fed. Reg. 8,456, 8,461 (Feb. 6, 2013). In this respect, the Final Rule is, in substance, virtually identical to the original “religious employer” exemption, which was intended to focus on “the unique relationship between a house of worship and its employees in ministerial positions.” 76 Fed. Reg. at 46,623. Religious organizations that have a broader mission are still not, in the Government’s view, “religious employers.”
90. The “religious employer” exemption, moreover, creates an official, Government-favored category of religious groups that are exempt from the Mandate, while denying this favorable treatment to all other religious groups. The exemption applies only to those groups that are “referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code,” which includes only (i) “churches, their integrated auxiliaries, and conventions or associations of churches,” and (iii) “the exclusively religious activities of any religious order.”
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The IRS has adopted an intrusive 14-factor test to determine whether a group meets these qualifications. See Foundation of Human Understanding v. United States, 88 Fed. Cl. 203, 220 (Fed. Cl. 2009). Among these 14 factors is whether the group has “ a recognized creed and form of worship,” “a definite and distinct ecclesiastical government,” “a formal code of doctrine and discipline,” “a distinct religious history,” “an organization of ordained ministers” “a literature of its own,” “established places of worship,” “regular congregations, “regular religious services,” “Sunday schools for the religious instruction of the young,” and “schools for the preparation of its ministers.” Id. Not only do these factors favor some religious groups at the expense of others, but they also require the Government to make intrusive judgments regarding religious beliefs, practices, and organizational features to determine which groups fall into the favored category.
91. Second, the Final Rule establishes an illusory “accommodation” for certain nonexempt objecting religious entities that qualify as an “eligible organization.” To qualify as an “eligible organization,” an organization must (i) “oppose[] providing coverage for some or all of any contraceptive services,” (ii) be “organized and operate[] as a non-profit entity”; (iii) “hold[] itself out as a religious organization;” and (iv) self-certify that it meets the first three criteria, and provide a copy of the self-certification either to its insurance provider or, if the
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religious organization is self-insured, to its third party administrator.24 Providing this self-certification automatically requires the insurance provider or third-party administrator to provide or arrange “payments for contraceptive services” for the organization’s employees, without imposing any “cost-sharing requirements (such as copayment, coinsurance, or a deductible).”25 The objectionable coverage is directly tied to the organization’s health plan, lasting only as long as the employee remains on that plan.26 In addition, self-insured organizations are prohibited from “directly or indirectly, seek[ing] to influence the[ir] third party administrator’s decision” to provide or procure contraceptive services.27
92. This so-called “accommodation” fails to relieve the burden on religious organizations. Under the original version of the Mandate, a non-exempt religious organization’s decision to offer a group health plan resulted in the provision of coverage for abortion-inducing products, contraception, sterilization, and related counseling. Under the Final Rule, a non-exempt religious organization’s decision to offer a group health plan still results in the provision of
24 26 CFR § 54.9815-2713A(a), (b)(ii), (c) ; 29 C.F.R. § 2590.715-2713A(a), (b)(ii), (c); 45 CFR § 147.131(b), (c)(1).
25 26 CFR§ 54.9815-2713A(b)(2), (c)(2); 29 CFR § 2590.715-2713A(b)(2), (c)(2); 45 CFR § 147.131(c)(2).
26 See 26 CFR § 54.9815-2713A(c)(2)(B); 29 CFR § 2590.7152713A(c)(2)(B); 45 CFR § 147.131(c)(2)(i)(B).
27 26 CFR § 54.9815–2713A(b)(1)(iii); 29 CFR § 2590.7152713A(b)(1)(iii).
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coverage -- now in the form of “payments” -- for abortion-inducing products, contraception, sterilization, and related counseling.28 In both scenarios, Plaintiffs’ decision to provide a group health plan triggers the delivery of “free” contraceptive coverage to their employees in a manner contrary to their beliefs. The provision of the objectionable products and services are directly tied to Plaintiffs’ insurance policies, as the objectionable “payments” are available only so long as an employee is on the organization’s health plan. See 29 CFR § 2590.715-2713A (for self-insured employers, the third-party administrator “will provide separate payments for contraceptive services . . . for so long as [employees are] enrolled in [their] group health plan”); 45 CFR § 147.131(c)(2)(i)(B) (for employers that offer insured plans, the insurance issuer must “[p]rovide separate payments for any contraceptive services . . . for plan participants and beneficiaries for so long as they remain enrolled in the plan”). For self-insured organizations, moreover, the selfcertification constitutes the religious organization’s “designation of the third party administrator(s) as plan administrator and claims administrator for contraceptive benefits.” 78 Fed. Reg. at 39,879 (July 2, 2013) (emphasis added). Thus, employer health plans offered by non-exempt religious organizations remain the
28 26 CFR § 54.9815-2713A(b)-(c); 29 CFR § 2590.715-2713A; 45 CFR § 147.131(c).
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vehicle by which “free” abortion-inducing products, contraception, sterilization, and related counseling are delivered to the organizations’ employees.
93. The shell game described above does not address Plaintiffs’ fundamental religious objection to having to facilitating access to the objectionable products and services. As before, Plaintiffs are coerced, through threats of crippling fines and other pressure, into providing their employees access to contraception, abortion-inducing products, sterilization, and related counseling, contrary to their sincerely-held religious beliefs.
94. The so-called “accommodation,” moreover, requires Plaintiffs to cooperate in providing objectionable coverage in other ways as well. For example, in order to be eligible for the so-called “accommodation,” Plaintiffs must deliver a “certification” to their insurance provider or third-party administrator setting forth their religious objections to the Mandate. The delivery of this “certification,” in turn, “automatically” triggers an obligation on the part of the insurance company or third-party administrator to provide Plaintiffs’ employees with objectionable coverage or to arrange for the provision of objectionable coverage. 78 Fed. Reg. 8,463 (Feb. 6, 2013). A religious organization’s self-certification, therefore, is a trigger and but-for cause of the objectionable coverage.
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95. The Mandate also requires Plaintiffs to pay directly for the objectionable coverage.
96. For organizations that procure insurance through a separate insurance provider, the Government asserts that the cost of the objectionable coverage will be “cost neutral” and, therefore, that Plaintiffs will not actually be paying for it, notwithstanding the fact that Plaintiffs’ premiums are the only source of funding that their insurance providers will receive for the objectionable products and services. This assertion, however, rests on the implausible assumption that cost “savings” from “fewer childbirths” will be at least as large as the direct costs of paying for contraceptive coverage and the costs of administering individual policies. 78 Fed. Reg. at 8,463 (Feb. 6, 2013). Some employees, however, will choose not to use contraception notwithstanding the Mandate. Others will use contraception regardless of whether it is being paid for by insurance. And yet others will shift from less expensive to more expensive products once coverage is mandated and cost-sharing is prohibited. Consequently, there can be no assurance that cost “savings” from “fewer childbirths” will offset the cost of providing contraceptive services.
97. More importantly, even if the Government’s “cost-neutral” assertion were true, it is irrelevant. The so-called “accommodation” is nothing more than a
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shell game. Premiums previously paid by the objecting employers to cover, for example, “childbirths,” will now be redirected to pay for contraceptive products and services. Thus, objecting employers are still required to pay for the objectionable products and services.
98. For self-insured organizations, the Government’s “cost-neutral” assumption is likewise implausible. The Government asserts that third-party administrators required to procure the objectionable products and services for selfinsured organizations subject to the accommodation will be compensated via reductions in the user fees required for participation in federally-facilitated health exchanges. See 78 Fed. Reg. 39,882-86 (July 2, 2013); 26 C.F.R. § 54.98152713A(b)(3); 45 C.F.R. § 156.50(d). Such fee reductions would be established through a highly regulated and bureaucratic process, and it appears most unlikely that the reduction in user fees will fully compensate the regulated entities for the costs and risks associated with providing or procuring the objectionable coverage for those religious organizations that qualify for the “accommodation” and with complying with the Final Rule’s regulatory framework. As a result, few if any third-party administrators are likely to participate in this regime, and those that do are likely to increase fees charged to the self-insured organizations.
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99. Either way, as with insured plans, self-insured organizations likewise will be required to pay for contraceptive coverage notwithstanding the so-called “accommodation.”
100. For all of these reasons, the Mandate continues to require Plaintiffs to provide, pay for, and/or facilitate access to abortion-inducing drugs, contraception, sterilization, and related education and counseling, in violation of their sincerelyheld religious beliefs.
101. Third, the Final Rule actually increases the number of religious organizations that are subject to the Mandate. Under the Government’s initial “religious employer” definition, if a nonexempt religious organization “provided health coverage for its employees through” a plan offered by a separate, “affiliated” organization that was “exempt from the requirement to cover contraceptive services, then neither the [affiliated organization] nor the [nonexempt entity would be] required to offer contraceptive coverage to its employees.”29
102. For example, the Atlanta Archdiocese operates a self-insurance plan that covers not only the Archdiocese itself, but other affiliated Catholic organizations -- including Catholic Charities and CENGI. Under the religious
29 77 Fed. Reg. 16,501, 16,502 (Mar. 21, 2012).
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employer exemption that was originally proposed, if the Archdiocese was an exempt “religious employer,” then Catholic Charities and CENGI received the benefit of that exemption, regardless of whether they independently qualified as “religious employers,” since they could continue to participate in the Archdiocese’s exempt plan. These affiliated organizations, therefore, could benefit from the Atlanta Archdiocese’s exemption even if they, themselves, could not meet the Government’s narrow definition of “religious employer.”
103. The Final Rule eliminates this safeguard. Instead, it provides that “each employer” must “independently meet the definition of religious employer or eligible organization in order to avail itself of the exemption or an accommodation with respect to its employees and their covered dependents.” 30 Since Catholic Charities and CENGI do not appear to meet the Government’s narrow definition of “religious employers,” CENGI now appears to be subject to the Mandate and Catholic Charities could be subjected to the Mandate.
104. Moreover, since Catholic Charities and CENGI are part of the Atlanta Archdiocese’s self-insurance plan, the Archdiocese is now required by the Mandate to do one of two things: (a) it must sponsor a plan that will provide the workers at Catholic Charities and employees at CENGI with “free” contraception,
30 78 Fed. Reg. 39,886 (July 2, 2103). See also 78 Fed. Reg. at 8,467 (Feb. 6, 2013) (NPRM).
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abortion-inducing products, sterilization, and related counseling; or (b) it must expel these organizations from its insurance plan and thereby force these organizations to enter into an arrangement with another insurance provider that will, in turn, provide the objectionable products and services. Either way, the Archdiocese is forced to act contrary to its sincerely-held religious beliefs.
105. The Savannah Diocese faces a similar dilemma. The Diocese’s charitable efforts and Catholic Schools are part of its self-insurance plans, and those charities and schools do not appear to qualify for the Exemption. Thus, the Savannah Diocese is likely required by the Mandate to do one of two things: since it is the insurance company for nonexempt affiliated organizations, it must sponsor a plan that will provide the employees of these organizations with “free” contraception, abortion-inducing drugs, sterilization, and related counseling. Alternatively, the Diocese must expel these organizations from its insurance plan and thereby force these organizations to enter into an arrangement with another insurance provider that will, in turn, provide the objectionable coverage.
106. In this respect, the Mandate seeks to divide the Catholic Church. The Church’s faith in action, carried out through its charitable and educational arms, is every bit as central to the Church’s religious mission as is the administration of the Sacraments. In the words of Pope Benedict, “[t]he Church cannot neglect the
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service of charity any more than she can neglect the Sacraments and the Word.” Yet the Mandate seeks to separate these aspects of the Catholic faith, treating one as “religious” and the other as not.
107. In sum, the Final Rule not only fails to alleviate the burden that the Mandate imposes on Plaintiffs’ religious beliefs; it in fact makes that burden significantly worse by increasing the number of religious organizations that are subject to the Mandate. The Mandate, therefore, requires Plaintiffs to act contrary to their sincerely-held religious beliefs.
THE MANDATE SUBSTANTIALLY BURDENS PLAINTIFFS’ RELIGIOUS LIBERTY
108. Since the founding of this country, our law and society have recognized that individuals and institutions are entitled to freedom of conscience and religious practice. Absent a compelling reason, no government authority may compel any group or individual to act contrary to their religious beliefs. As noted by Thomas Jefferson, “[n]o provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of civil authority.”
109. The Mandate violates Plaintiffs’ rights of conscience by forcing them to participate in an employer-based scheme to provide insurance coverage to which they strenuously object on moral and religious grounds.
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110. It is a core tenet of Plaintiffs’ religion that abortion, contraception, and sterilization are serious moral wrongs.
111. Plaintiffs’ Catholic beliefs therefore prohibit them from providing, paying for, and/or facilitating access to abortion-inducing products, contraception, or sterilization. Further, their beliefs prohibit them from paying for, providing, and/or facilitating speech presenting abortion-inducing products, contraception, or sterilization as acceptable options.
112. As a corollary, Plaintiffs’ religious beliefs prohibit them from contracting with an insurance company or third-party administrator that will, as a direct result, procure or provide the objectionable coverage to Plaintiffs’ employees.
113. The Mandate requires Plaintiffs to do precisely what their religious beliefs prohibit -- (a) provide, pay for, and/or facilitate access to objectionable products, services, and/or speech, or else (b) incur crippling sanctions.
114. The Mandate therefore imposes a substantial burden on Plaintiffs’ religious beliefs and violates their religious liberty.
115. The Mandate’s narrow Exemption for “religious employers” does not alleviate the burden.
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116. The “religious employers” exemption appears not to apply to Catholic Charities, CENGI, and perhaps other Plaintiffs.
117. Although the Atlanta Archdiocese and the Savannah Diocese appear to be “religious employers,” the Mandate still burdens their sincerely-held religious beliefs by requiring them either to (a) sponsor plans that will provide objectionable coverage to those that work for Plaintiffs CENGI, Catholic Charities, and other affiliated but non-exempt Catholic organizations; or (b) else expel those affiliates from their insurance plans, thereby forcing them into arrangements with other insurance providers that will, in turn, provide the objectionable products and services.
118. Both of those alternatives violate the Plaintiffs’ sincerely-held religious beliefs.
119. The so-called “accommodation” does not alleviate this burden. Notwithstanding the “accommodation,” Plaintiffs are still required to provide, pay for, and/or facilitate access to the objectionable products and services, in violation of their religious beliefs.
120. Finally, the Plaintiffs cannot avoid the Mandate without incurring crippling fines. If they eliminate their employee health plans, they are subject to annual fines of $2,000 per full-time employee. If they keep their health plans but
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refuse to provide or facilitate the objectionable coverage, they are subject to daily fines of $100 per affected beneficiary. The fines therefore coerce Plaintiffs into violating their religious beliefs.
121. In short, while the President claimed to have “f[ou]nd a solution that works for everyone” and that ensures that “[r]eligious liberty will be protected,” his “accommodation” does neither. Unless and until this issue is definitively resolved, the Mandate does and will continue to impose a substantial burden on Plaintiffs’ religious beliefs.
THE MANDATE IS NOT A NEUTRAL LAW OF GENERAL APPLICABILITY
122. The Mandate offers multiple exemptions from its requirements that employer-based health plans include or facilitate coverage for abortion-inducing drugs, sterilization, contraception, and related education and counseling. It was, moreover, implemented by and at the behest of individuals and organizations who expressly disagree with Plaintiffs’ religious beliefs regarding abortion and contraception, and thus targets religious organizations for disfavored treatment. Consequently, it is not a neutral law of general applicability.
123. For example, the Mandate exempts all “grandfathered” plans from its requirements, thus excluding tens of millions of people from the mandated coverage. As the Government has admitted, while the numbers are expected to
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diminish over time, “98 million individuals will be enrolled in grandfathered group health plans in 2013.”31 Elsewhere, the government has put the number at 87 million.32 And according to one district court last year, “191 million Americans belong[ed] to plans which may be grandfathered under the ACA.” Newland v. Sebelius, 881 F. Supp.2d 1287, 1291 (D. Colo. 2012).
124. Similarly, small employers (i.e., those with fewer than 50 employees) are exempt from certain enforcement mechanisms to compel compliance with the Mandate.33
125. In addition, the Mandate exempts an arbitrary subset of religious organizations that qualify for tax-reporting exemptions under Section 6033 of the IRC. The Government cannot justify its protection of the religious-conscience rights of the narrow category of exempt “religious employers,” but not for other religious organizations -- likely including Catholic Charities and CENGI -- that remain subject to the Mandate
31 75 Fed. Reg. 41,726, 41732 (July 19, 2010). 32 See “Keeping the Health Plan You Have” (June 14, 2010), http://www.healthcare.gov/news/factsheets/2010/06/keeping-the-health-plan-youhave-grandfathered.html. 33 See 26 U.S.C. 4980D(d) (exempting small employers from the assessable payment for failure to provide health coverage), 4980H(a) (exempting small employers from penalties imposed for failing to provide the objectionable services).
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126. The Mandate, moreover, was promulgated by Government officials, and supported by non-governmental organizations, who strongly oppose certain Catholic teachings and beliefs. For example, on October 5, 2011, Defendant Sebelius spoke at a fundraiser for NARAL Pro-Choice America. Secretary Sebelius has long supported abortion rights and criticized Catholic teachings and beliefs regarding abortion and contraception. NARAL Pro-Choice America is a pro-abortion organization that likewise opposes many Catholic teachings. At that fundraiser, Ms. Sebelius criticized individuals and entities whose beliefs differed from those held by her and the other attendees of the NARAL Pro-Choice America fundraiser. In addition, the Mandate was modeled on a California law that was motivated by discriminatory intent against religious groups that oppose contraception.
127. Consequently, Plaintiffs allege that the purpose of the Mandate, including the narrow Exemption, is to discriminate against religious institutions and organizations that oppose abortion and contraception.
THE MANDATE IS NOT THE LEAST RESTRICTIVE MEANS OF FURTHERING A COMPELLING GOVERNMENTAL INTEREST
128. The Mandate is not narrowly tailored to serve a compelling governmental interest.
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129. The Government has no compelling interest in forcing Plaintiffs to violate their firmly-held religious beliefs by requiring them to participate in a scheme for the provision of abortion-inducing drugs, sterilizations, contraceptives and related education and counseling. The Government itself has relieved numerous other employers from this requirement by exempting grandfathered plans and plans of employers it deems to be sufficiently religious. Moreover, these services are already widely available in the United States. The U.S. Supreme Court has held that individuals have a constitutional right to use such services. And nothing that Plaintiffs do inhibits any individual from exercising that right.
130. Even assuming the interest is compelling, the Government has numerous alternative means of furthering that interest without forcing Plaintiffs to violate their religious beliefs. For example, the Government could have provided or paid for the objectionable services itself through other programs established by a duly enacted law. Or, at a minimum, it could create a broader exemption for religious employers, such as those found in numerous state statutes throughout the country and in other federal laws. The Government cannot possibly demonstrate that requiring Plaintiffs to violate their consciences is the least restrictive means of furthering its claimed interest.
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131. The Mandate, moreover, would simultaneously undermine both religious freedom -- a fundamental right enshrined in the U.S. Constitution -- and access to the wide variety of social and educational services that Plaintiffs provide. As President Obama acknowledged in his announcement of February 10, 2012, religious organizations like Plaintiffs do “more good for a community than a government program ever could.” The Mandate, however, puts these good works in jeopardy.
132. Accordingly, Plaintiffs seek a declaration that the Mandate cannot lawfully be applied to Plaintiffs, an injunction barring its enforcement, and an order vacating the Mandate. THE MANDATE THREATENS PLAINTIFFS WITH IMMINENT INJURY THAT SHOULD
BE REMEDIED BY A COURT. 133. The Mandate is causing serious, ongoing hardship to Plaintiffs that merits relief now. 134. On June 28, 2013, Defendants finalized the Mandate, including the narrow Exemption and the so-called “accommodation.” By the terms of the Final Rule, Plaintiffs must comply with the Mandate by the beginning of the next plan year on or after January 1, 2014. 135. For the Atlanta Archdiocese, Catholic Charities and CENGI, the next plan year begins on January 1, 2014.
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136. For the Diocese of Savannah, the next plan year begins on July 1, 2014.
137. Defendants have given no indication that they will not enforce the essential provisions of the Mandate that impose a substantial burden on Plaintiffs’ rights. Consequently, absent the relief sought herein, Plaintiffs will be required to provide, pay for, and/or facilitate access to contraception, abortion-inducing products, sterilization, and related education and counseling, in violation of their sincerely-held religious beliefs.
138. The Mandate is also harming Plaintiffs in other ways. 139. The process of determining the healthcare package for a plan year requires a substantial amount of time before the plan year actually begins. The benefits departments for Plaintiffs must begin budgeting and planning for their insurance Plans from 14 to 16 months ahead of the start of a plan year in order to analyze, vet, and implement changes to their plans. Because both the Atlanta Plan and the Savannah Plan are self-insured, the benefits departments for Plaintiffs must analyze historical data, evaluate potential changes, work with consultants to model and analyze potential changes, and compare potential change options. The benefits departments must then develop options to be presented to committees that are responsible for benefits issues. The potential changes are discussed and debated
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with the committees during a three to four month period, and a proposal must be finalized at least five months in advance of the start of the next plan year. The multiple levels of uncertainty surrounding the Mandate make this already lengthy process even more complex.
140. If Plaintiffs decide not to comply with the Mandate, they may be subject to government fines and penalties, and claims for damages by private parties. Plaintiffs require time to budget for any such additional expenses. Specifically, Plaintiffs must begin budgeting for such major general expenses approximately 18 months before a plan year will begin.
141. The Mandate and its uncertain legality, moreover, undermine Plaintiffs’ ability to hire and retain employees, thus placing them at a competitive disadvantage in the labor market relative to organizations that do not have a religious objection to the Mandate.
142. Thus, the Mandate, including its requirement that Plaintiffs choose between violating their sincerely-held religious beliefs and suffering substantial monetary liability, is currently injuring Plaintiffs.
143. Further, the Government-imposed dilemma that the Atlanta Plaintiffs face between continuously maintaining the grandfathered status of their group health plan -- which severely limits the changes the can be made to the Atlanta
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Plan in response to increasing healthcare costs -- and becoming subject to the Mandate is causing injury now. The Atlanta Archdiocese has considered making certain beneficial changes to the Atlanta Plan since March 23, 2010, and would have made those changes if not for the need to maintain grandfathered status. Specifically, after March 23, 2010, the Atlanta Archdiocese would have introduced some combination of increased employee premium contributions, deductibles, and/or co-pays to preserve the financial stability of both the Atlanta Plan and the Atlanta Archdiocese, but they cannot do so for fear of losing grandfathered status. Moreover, a significant portion of the budget and planning sessions for the Atlanta Archdiocese each year necessarily entails analyzing the grandfathered status of the Atlanta Plan. In fact, since March 2010, the Atlanta Archdiocese and its insurance brokers have spent more than 150 hours analyzing the Plan’s grandfathered status. The time the Atlanta Archdiocese has had to spend on these issues could have been spent addressing other significant budgetary and operational issues facing the Atlanta Plaintiffs.
144. The Atlanta Archdiocese has already been injured because it has expended significant resources to ensure that the Atlanta Plan maintained its grandfathered status for plan years 2011, 2012, and 2013.
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145. In sum, an actual, justiciable controversy currently exists between Plaintiffs and Defendants. Absent a declaration resolving this controversy and the validity and applicability of the Mandate, Plaintiffs are uncertain as to their rights and duties in planning, negotiating, and/or implementing their group health insurance plans, their hiring and retention programs, and their social, educational, and charitable programs and ministries, as described herein.
146. Plaintiffs need judicial relief now in order to prevent the serious, ongoing harm that the Mandate is already imposing on them.
147. Plaintiffs have no adequate remedy at law. CAUSES OF ACTION COUNT I
SUBSTANTIAL BURDEN ON RELIGIOUS EXERCISE IN VIOLATION OF RFRA
148. Plaintiffs hereby repeat and re-allege the allegations set out in Paragraphs 1 through 147 hereinabove.
149. RFRA prohibits the Government from substantially burdening an entity’s exercise of religion, even if the burden results from a rule of general applicability, unless the Government demonstrates that the burden (a) furthers a compelling governmental interest, and (b) is the least restrictive means of furthering that interest.
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150. RFRA protects organizations as well as individuals from substantial Government-imposed burdens on religious exercise.
151. RFRA applies to all federal law and the implementation of that law by any branch, department, agency, instrumentality, or official of the United States.
152. The Mandate requires Plaintiffs to provide, pay for, and/or facilitate practices and speech that are contrary to their religious beliefs.
153. The Mandate substantially burdens Plaintiffs’ exercise of religion. 154. The Government has no compelling governmental interest to require Plaintiffs to comply with the Mandate. 155. Requiring Plaintiffs to comply with the Mandate is not the least restrictive means of furthering any compelling governmental interest. 156. By enacting and threatening to enforce the Mandate against Plaintiffs, Defendants have violated RFRA. 157. Plaintiffs have no adequate remedy at law. 158. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
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COUNT II SUBSTANTIAL BURDEN ON RELIGIOUS EXERCISE IN VIOLATION OF
THE FREE EXERCISE CLAUSE OF THE FIRST AMENDMENT 159. Plaintiffs hereby repeat and re-allege the allegations set out in Paragraph 1 through 147 hereinabove. 160. The Free Exercise Clause of the First Amendment prohibits the Government from substantially burdening an entity’s exercise of religion. 161. The Free Exercise Clause protects organizations as well as individuals from Government-imposed burdens on religious exercise. 162. The Mandate requires Plaintiffs to provide, pay for, and/or facilitate practices and speech that are contrary to their religious beliefs. 163. The Mandate substantially burdens Plaintiffs’ exercise of religion. 164. The Mandate is not a neutral law of general applicability, because it is riddled with arbitrary exemptions for which there is not a consistent, legally defensible basis. 165. The Mandate is not a neutral law of general applicability because it was passed with discriminatory intent. 166. The Mandate implicates constitutional rights in addition to the right to free exercise of religion, including, for example, the rights to free speech and to freedom from excessive government entanglement with religion.
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167. The Government has no compelling interest to require Plaintiffs to comply with the Mandate.
168. The Mandate is not narrowly tailored to further a compelling governmental interest.
169. By enacting and threatening to enforce the Mandate, the Government has burdened Plaintiffs’ religious exercise in violation of the Free Exercise Clause of the First Amendment.
170. Plaintiffs have no adequate remedy at law. 171. The Mandate and its impending enforcement impose an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT III COMPELLED SPEECH IN VIOLATION OF THE FREE SPEECH CLAUSE OF THE FIRST AMENDMENT 172. Plaintiffs hereby repeat and re-allege the allegations set out in Paragraph 1 through 147 hereinabove. 173. The First Amendment protects against the compelled affirmation of any religious or ideological proposition that the speaker finds unacceptable. 174. The First Amendment protects organizations as well as individuals against compelled speech. 175. Expenditures are a form of speech protected by the First Amendment.
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176. The First Amendment protects against the use of a speaker’s money to support a viewpoint that conflicts with the speaker’s religious beliefs.
177. The Mandate would compel Plaintiffs to provide healthcare plans to their employees that include or facilitate access to products and services that violate their religious beliefs.
178. The Mandate would compel Plaintiffs to subsidize, promote, and facilitate education and counseling services regarding these objectionable products and services.
179. The Mandate would compel Plaintiffs to issue a certification of its beliefs that, in turn, would directly cause the provision of objectionable products and services to Plaintiffs’ employees.
180. By imposing the Mandate, Defendants are compelling Plaintiffs publicly to subsidize or facilitate the activity and speech of private entities that are contrary to their religious beliefs, and to engage in speech that will result in the provision of objectionable products and services to Plaintiffs’ employees.
181. The Mandate is viewpoint-discriminatory and subject to strict scrutiny.
182. The Mandate furthers no compelling governmental interest.
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183. The Mandate is not narrowly tailored to further a compelling governmental interest.
184. Plaintiffs have no adequate remedy at law. 185. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT IV PROHIBITION OF SPEECH IN VIOLATION OF THE FIRST AMENDMENT 186. Plaintiffs hereby repeat and re-allege the allegations set out in Paragraph 1 through 147 hereinabove. 187. The First Amendment protects the freedom of speech, including the right of religious groups to speak out to persuade others to refrain from engaging in conduct that may be considered immoral. 188. The Mandate violates the First Amendment freedom of speech by imposing a gag order that prohibits Plaintiffs from speaking out in any way that might “influence,” “directly or indirectly,” the decision of a third-party administrator to provide or procure contraceptive products and services to Plaintiffs’ employees. 189. Plaintiffs have no adequate remedy at law.
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190. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT V OFFICIAL “CHURCH” FAVORITISM AND EXCESSIVE ENTANGLEMENT WITH
RELIGION IN VIOLATION OF THE ESTABLISHMENT CLAUSES OF THE FIRST AMENDMENT
191. Plaintiffs hereby repeat and re-allege the allegations set out in Paragraphs 1 through 147 hereinabove.
192. The Establishment Clause of the First Amendment prohibits the Government from adopting an official definition of a “religious employer” that favors some religious groups while excluding others.
193. The Establishment Clause also prohibits the Government from becoming excessively entangled in the affairs of religious groups by scrutinizing their beliefs, practices, and organizational features to determine whether they meet the Government’s favored definition.
194. The “religious employer” exemption violates the Establishment Clause in two ways.
195. First, it favors some religious groups over others by creating an official definition of “religious employers.” Religious groups that meet the
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Government’s official definition receive favorable treatment in the form of an exemption from the Mandate, while other religious groups do not.
196. Second, even if it were permissible for the Government to favor some religious groups over others, the “religious employer” Exemption would still violate the Establishment Clause because it requires the Government to determine whether groups qualify as “religious employers” based on intrusive judgments about their beliefs, practices, and organizational features. The Exemption turns on an intrusive 14-factor test to determine whether a group meets the requirements of section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. These 14 factors probe into matters such as whether a religious group has “a distinct religious history” or “a recognized creed and form of worship.” But it is not the Government’s place to determine whether a group’s religious history is “distinct,” or whether the group’s “creed and form of worship” are “recognized.” By directing the Government to partake of such inquiries, the “religious employer” exemption runs afoul of the Establishment Clause prohibition on excessive entanglement with religion.
197. Plaintiffs have no adequate remedy at law. 198. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
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COUNT VI INTERFERENCE IN MATTERS OF INTERNAL CHURCH GOVERNANCE IN VIOLATION
OF THE RELIGION CLAUSES OF THE FIRST AMENDMENT 199. Plaintiffs hereby repeat and re-allege the allegations set out in Paragraphs 1 through 147 hereinabove. 200. The Free Exercise and Establishment Clauses and RFRA collectively serve to protect the freedom of religious organizations to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine. 201. Under these Clauses, the Government may not interfere with a religious organization’s internal decisions concerning the organization’s religious structure, ministers, or doctrine. 202. Under these Clauses, the Government may not interfere with a religious organization’s internal decision if that interference would affect the faith and mission of the organization itself. 203. Plaintiffs are religious organizations affiliated with the Roman Catholic Church. 204. The Catholic Church views abortion, sterilization, and contraception as intrinsically immoral, and prohibits Catholic organizations from condoning or facilitating those practices.
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205. Plaintiffs have abided and must continue to abide by the decision of the Catholic Church on these issues.
206. The Government may not interfere with or otherwise question the final decision of the Catholic Church that its religious organizations must abide by these views.
207. Plaintiffs have therefore made the internal decision that the health plans they offer to their employees may not cover, subsidize, or facilitate abortion, sterilization, or contraception.
208. The Atlanta Archdiocese and the Savannah Diocese have further made the internal decision that its affiliated religious entities, including the other Plaintiffs in this case, should offer their employees health-insurance coverage through their respective plans, that allows them to ensure that these affiliates do not offer coverage for services that are contrary to Catholic teaching.
209. The Mandate interferes with Plaintiffs’ internal decisions concerning their structure and mission by requiring them to facilitate practices that directly conflict with Catholic beliefs.
210. The Mandate’s interference with Plaintiffs’ internal decisions affects their faith and mission by requiring them to facilitate practices that directly conflict with their religious beliefs.
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211. Because the Mandate interferes with the internal decision-making of Plaintiffs in a manner that affects their faith and mission, it violates the Establishment and Free Exercise Clauses of the First Amendment and RFRA.
212. The Mandate is therefore unconstitutional and invalid. 213. Plaintiffs have no adequate remedy at law. 214. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT VII UNCONSTITUTIONAL DELEGATION OF LEGISLATIVE AUTHORITY 215. Plaintiffs hereby repeat and re-allege the allegations set out in Paragraphs 1 though 147 hereinabove. 216. The United States Constitution vests all legislative power in the United States Congress. Congress may not delegate its policymaking authority to an executive agency in the absence of an intelligible principle that limits and guides the agency’s exercise of that authority. 217. The Affordable Care Act expressly delegates unchecked authority to Defendant HHS to establish “comprehensive guidelines” for the services that group health plans and health insurance issuers must provide as “preventive care” under the Act.
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218. The Act does not contain an intelligible principle or any other identifiable standard to which HHS is directed to conform in deciding which services do and do not qualify as “preventive care.”
219. For example, and as illustrated by the Mandate and Exemption, the Act purports to bestow unfettered discretion on HHS to mandate coverage for whatever medical services and procedures it deems to qualify as “preventive care.” Also, HHS has used its unbounded discretion under the Act to claim for itself the authority to decide which entities will (and will not) be subject to the Mandate and which will (and will not) qualify for the Exemption.
220. The Act’s delegation of legislative authority violates the separation of powers principles of the United States Constitution.
221. Plaintiffs have no adequate remedy at law. 222. The enactment and impending enforcement of the Mandate pursuant to this unconstitutional delegation of authority impose an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT VIII ILLEGAL ACTION IN VIOLATION OF THE APA 223. Plaintiffs hereby repeat and re-allege the allegations set out in Paragraphs 1 though 147 hereinabove.
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224. The APA condemns agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
225. The Mandate, its Exemption for “religious employers,” and its socalled “accommodation” for “eligible” religious organizations are illegal and therefore in violation of the APA.
226. The Weldon Amendment states that “[n]one of the funds made available in this Act [to the Department of Labor and the Department of Health and Human Services] may be made available to a Federal agency or program . . . if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.”34
227. The Affordable Care Act contains no clear expression of an affirmative intention of Congress that employers with religiously motivated objections to the provision of health plans that include coverage for abortioninducing products, sterilization, contraception, or related education and counseling should be required to provide such plans.
34 Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(1), 125 Stat. 786, 1111 (2011).
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228. The Mandate nevertheless requires employer-based health plans to provide coverage for abortion-inducing products, contraception, sterilization, and related education. Thus, the Mandate is “not in accordance with the law.” 5 U.S.C. § 706(2)(A). By issuing the Mandate, Defendants have exceeded their authority and ignored the direction of Congress.
229. The Mandate violates RFRA. 230. The Mandate violates the First Amendment. 231. The Mandate is not in accordance with law and thus violates 5 U.S.C. § 706(2)(A). 232. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile. 233. Plaintiffs have no adequate remedy at law. 234. The Mandate imposes an immediate and ongoing harm on the Plaintiffs that warrants immediate relief. WHEREFORE, Plaintiffs respectfully pray that this Court: 1. Enter a declaratory judgment that the Mandate violates Plaintiffs’
rights under RFRA; 2. Enter a declaratory judgment that the Mandate violates Plaintiffs’
rights under the First Amendment;
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3. Enter a declaratory judgment that the Mandate was promulgated in violation of the APA and is an unconstitutional delegation of legislative authority;
4. Enter a declaratory judgment that Catholic Charities is not subject to the Mandate;
5. Enter a declaratory judgment that CENGI is not subject to the Mandate;
6. Enter an injunction prohibiting the Defendants from enforcing the Mandate against Plaintiffs;
7. Enter an order vacating the Mandate; 8. Award Plaintiffs their attorneys’ and expert fees and costs under 42
U.S.C. § 1988; and 9. Award all other relief as the Court may deem just and proper.
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Respectfully submitted, this the 19th day of August, 2013.
By: /s E. Kendrick Smith E. Kendrick Smith Georgia Bar No. 656725 Janine Cone Metcalf Georgia Bar No. 503401 James R. Williams Georgia Bar No. 812411 JONES DAY 1420 Peachtree Street, N.E. Suite 800 Atlanta, Georgia 30309 Telephone: (404) 581-3939 Facsimile (404) 581-8330 eksmith@jonesday.com jmetcalf@jonesday.com jrwilliams@jonesday.com Counsel for all Plaintiffs
- and
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Stephen M. Forte Georgia Bar No. 270035 SMITH GAMBRELL & RUSSELL LLP 1230 Peachtree Street, N.E. Suite 3100 Atlanta, Georgia 30309 Telephone: 404-815-3500 sforte@sgrlaw.com
Counsel for Plaintiffs The Roman Catholic Archdiocese of Atlanta, The Most Reverend Wilton D. Gregory, and his successors, Catholic Education of North Georgia, Inc. and Catholic Charities of the Archdiocese of Atlanta, Inc.
- and –
J. Curt Thomas Georgia Bar No. 142278 BRENNAN & WASDEN, LLP 411 East Liberty Street Savannah, Georgia 31401 Telephone 912-232-6700 cthomas@brennanandwasden.com
Counsel for Plaintiffs The Roman Catholic Diocese of Savannah, The Most Reverend John Hartmayer, and his successors, Bishop of the Roman Catholic Diocese of Savannah.
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VERIFICATION

STATE OF GEORGIA

PARISH/COUNTY 0 F___;,.:j'-----

BEFORE ME, the undersigned Notary Public, personally came and

appeared:

Charles J. Thibaudeau

Human Resources Director for the Roman Catholic Archdiocese of

Atlanta, Catholic Charities of the Archdiocese of Atlanta, Inc., and

Catholic Education of North Georgia, Inc., Plaintiffs in the foregoing

Second Amended and Recast Complaint, who declared that he has read

the Second Amended and Recast Complaint and that all of the

allegations contained therein are true and correct to the best of his

knowledge, infor~ and be~ef

/ /

.rL
/

~

I.

SWORN TO AND SUBSCRIBED

NOTARY PUBLIC
Bar Roll - No.: -----------------

Case 1:12-cv-03489-WSD Document 56 Filed 08/19/13 Page 77 of 78

VERIFICATION

STATE OF GEORGIA PARISH/COUNTY OF

~:
~,._.,

BEFORE ME, the undersigned Notary Public, personally came and appeared:

JoAnn Green

Human Services Director for The Roman Catholic Archdiocese of Savannah, Plaintiff in the foregoing Second Amended and Recast Complaint, who declared that s/he has read the Second Amended and Recast Complaint and that all of the allegations contained therein are true and correct to the best of her/his knowledge, information and belief.

2

Case 1:12-cv-03489-WSD Document 56 Filed 08/19/13 Page 78 of 78
CERTIFICATE OF SERVICE
I hereby certify that on August 19, 2013, I have caused a copy of this First
Amended and Recast Complaint to be electronically filed with the Clerk of the
Court by using the CM/ECF system, which will send a notice of electronic filing to
the following counsel of record for Defendants.
Michelle R. Bennett Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Room 7306 Washington, D.C. 20530 Tel: (202) 305-8902 Fax: (202) 616-8470 Email: michelle.bennett@usdoj.gov
/s E. Kendrick Smith E. Kendrick Smith GA Bar # 656725 E-mail: eksmith@jonesday.com
JONES DAY Attorney for All Plaintiffs 1420 Peachtree Street, N.E., Suite 800 Atlanta, Georgia 30309 Phone (404) 581-3939 Fax (404) 581-8330

 
 Case 1:12-cv-03489-WSD Document 108 Filed 03/26/14 Page 1 of 91

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

THE ROMAN CATHOLIC ARCHDIOCESE OF ATLANTA, et al.,

Plaintiffs,

v.

1:12-cv-03489-WSD

KATHLEEN SEBELIUS, in her official capacity as Secretary, United States Department of Health and Human Services, et al.,

Defendants.

OPINION AND ORDER This matter is before the Court on the Plaintiffs’ Motion for Preliminary Injunction [57], the Defendants’ Motion to Dismiss or, in the alternative, for Summary Judgment [64], and the Plaintiffs’ Motion for Summary Judgment [78].

Case 1:12-cv-03489-WSD Document 108 Filed 03/26/14 Page 2 of 91
I. BACKGROUND A. Facts 1. The Plaintiffs Plaintiff the Roman Catholic Archdiocese of Atlanta (“Atlanta
Archdiocese”) is an association of parishes and other entities located within the 69 counties of northern Georgia. Compl. at 13. Plaintiff the Most Reverend Wilton D. Gregory is the Archbishop of the Atlanta Archdiocese (“Archbishop Gregory”). Id. at 15. The Atlanta Archdiocese provides spiritual, educational and social services to Catholics in northern Georgia. Id. at 16. The Atlanta Archdiocese directly operates 18 Catholic schools. Id. Plaintiff Catholic Education of North Georgia, Inc. (“CENGI”) executes the Atlanta Archdiocese’s educational mission through five independent Catholic schools in the region and is separately incorporated as a non-profit entity. Id. The Catholic schools educate nearly 12,000 students and employ more than 4,800 teachers and administrators. Id.
Plaintiff Catholic Charities of the Archdiocese of Atlanta, Inc. (“Catholic Charities”) is a separately incorporated non-profit entity that provides social services, including refugee resettlement advice, immigration counseling, mental health counseling, financial literacy education, marriage counseling, and a pregnancy support program that counsels women regarding in-home parenting
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education, pregnancy support services, post-adoption services, and play therapy for children. Id. at 17-18. CENGI and Catholic Charities employ and provide services to Catholics and non-Catholics alike.1 Id.
Plaintiff the Roman Catholic Diocese of Savannah (“Savannah Diocese”) is an association of 55 parishes and 24 missions in southern Georgia. Id. at 18-19. Plaintiff Bishop Hartmayer carries out the spiritual, educational and social services mission of the Savannah Diocese. Id. The Savannah Diocese provides social services and operates 16 elementary schools, five high schools, and several preschool programs. Id. at 19. The Catholic schools operated by the Savannah Diocese educate nearly 5,000 students, a third of whom are not Catholics. Id.
The “sanctity of human life and the dignity of all persons” are central to the Catholic faith. Plaintiffs’ Statement of Undisputed Material Facts and Additional Statement of Facts at 8 (“PSMF”).2 Plaintiffs believe that “human life must be
1 The Atlanta Archdiocese, Archbishop Gregory, CENGI and Catholic Charities are sometimes collectively referred to as the “Atlanta Plaintiffs” in this Order. 2 Despite the fact that the Court generously allowed the parties to file excess briefs, both sides have utilized their Statement of Material Facts and/or Responses as vehicles to rehash the same arguments raised in their briefs. The Court disregards the parties’ Statement of Material Facts to the extent that the statements are argumentative or contrary to the record established in this case. See LR 56.1(B), NDGa.; Bozeman v. Per-Se Tech. Inc., 456 F. Supp. 2d 1282, 1295-97 (N.D. Ga. 2006). A party’s response to the other party’s Statement of Material Facts is also
3

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respected and protected absolutely from the moment of conception.” Id. at 9. The Catholic faith prohibits any action that “‘renders procreation impossible.’” Id. The Church considers “‘[e]very procedure whose sole immediate effect is the termination of pregnancy before viability [as] an abortion, which, in its moral context, includes the interval between conception and implantation of the embryo.’” Id. at 10. As such, Plaintiffs’ religion prohibits them from providing, subsidizing or facilitating abortion-inducing drugs, artificial contraceptives, sterilization services and counseling or education related to these categories of products or services. Id. at 8.3 Artificial contraceptives and sterilization procedures have historically been excluded from health plans sponsored by the Atlanta Archdiocese and the Savannah Diocese. Id. at 10-11. A health insurance plan that provides coverage for artificial contraceptives or sterilization procedures violates the Plaintiffs’ religious beliefs. Id. at 10.
disregarded, and the facts are deemed admitted, to the extent that the response is argumentative or contradictory to the record established in this case. Id. 3 At ¶ 20, the Plaintiffs state that “Catholic religious teaching prohibits subsidizing, providing, and/or facilitating coverage for abortion-inducing products, sterilization services, contraceptives, and related counseling services in the manner required by the Mandate.” (emphasis added). PSMF at 8. This statement is the crux of the Plaintiffs’ position in this case. The Statements of Material Facts and Responses of both sides are riddled with argumentative and conclusory statements, and the Court disregards them for this reason.
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2. The Health Plans The Atlanta Archdiocese provides health insurance benefits to nearly 1,530 employees and their 1,070 dependants through the Roman Catholic Archdiocese of Atlanta Group Health Plan (“Atlanta Plan”). Id. at 2. The Atlanta Plan also provides health insurance benefits to the employees of Plaintiff CENGI and Plaintiff Catholic Charities. Id. at 3. The Atlanta Plan is a self-insured health insurance plan that underwrites its own risk, and directly pays health care providers for costs incurred by its beneficiaries. Id. Meritain Health, a subsidiary of AETNA, serves as the third party administrator (“TPA”) of the Atlanta Plan. Compl. at 21.4 The Atlanta Plan year begins on January 1, 2014. PSMF at 4. The Atlanta Plan excludes coverage for abortion, contraceptives unless used for noncontraceptive purposes, sterilization, and any education and counseling related to these types of benefits. Id. at 4. The Roman Catholic Diocese of Savannah Group Health Care Plan (the “Savannah Plan”) is a self-insured health insurance plan that also underwrites its own risk, and pays health care providers for costs incurred by approximately 384 people employed by the Savannah Diocese (and their 263 dependents). Id. at 6. Meritain Health also serves as the TPA of the Savannah Plan. The Savannah Plan 4 See also http://www.meritain.com/AboutUs
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year begins on July 1, 2014. Id. at 7. Like the Atlanta Plan, the Savannah Plan excludes coverage for abortion, contraceptives unless used for non-contraceptive purposes, sterilization, and any education and counseling related to these types of benefits. Id. at 8.5
The Atlanta Plan is a “grandfathered” plan that currently is not subject to the requirements of the Patient Protection and Affordable Care Act, Pub. L. No. 111148, 124 Stat. 119 (“ACA”). Id. at 3-4. An insurance plan is grandfathered under the ACA only if it provides almost the same benefits at almost the same costs to its beneficiaries. 75 Fed. Reg. at 41731. To remain grandfathered, an insurance plan’s employer contributions cannot decrease by more than 5% of the cost of coverage in comparison to the employer contributions made as of March, 2010. 26 C.F.R. § 54.9815-1251T(g)(1)(v). The Atlanta Plan has not increased its employee contributions or employee deductibles in an effort to remain grandfathered under the ACA. PSMF at 3-4. The Atlanta Plan’s coverage costs have increased by over 14% per year since March 23, 2010, and as a result, the Atlanta Archdiocese has absorbed millions of dollars to maintain its grandfathered status under the ACA, and the Atlanta Archdiocese “may be unable to continue to
5 The Atlanta Plan and the Savannah Plan will sometimes be collectively referred to as the “health plans.”
6

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do so without threatening its overall solvency.” Compl. at 23-24. The Plaintiffs expect that, in 2014, the Atlanta Plan will not be able to maintain its grandfathered status under the ACA. Id. The Savannah Plan does not meet the ACA’s definition of a grandfathered plan. PSMF at 6-7.
3. The Regulations Under Section 1001 of the ACA, group health insurance plans and health insurance issuers are required to provide “preventive services” coverage for women, without cost sharing, pursuant to the guidelines drawn by the Health Resources and Services Administration (“HRSA”). Defendants’ Statement of Material Facts at 1 (“DSMF”). The Department of Health and Human Services (“HHS”) delegated to the Institute of Medicine (“IOM”) the responsibility to develop recommendations that implement the ACA’s requirement to provide “preventive services” for women. Id. at 2. The IOM recommended that under the HRSA guidelines, “preventive services” should include “the full range of [FDA] approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” Id. FDA approved contraceptive methods include diaphragms, oral contraceptive pills, emergency
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contraceptives, including Plan B and Ella6, intrauterine devices (“IUDs”) and sterilization. Id.; Plaintiffs’ Response to Defendants’ Statement of Material Facts at 6 (“PRDSM”). On August 1, 2011, the HRSA adopted the IOM’s guidelines. DSMF at 3; 78 Fed. Reg. at 39870. These regulations, put in final form in the 2013 Final Rules, are popularly known as the “contraceptive mandate.”
The 2013 Final Rules exempt religious employers from the requirement to provide “preventive services.” The Final Rules define a “religious employer” as “an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (a)(3)(A)(iii) of the Internal Revenue Code of 1986, as amended.” 45 C.F.R. § 147.131(a). There is no dispute in this matter that “churches, their integrated auxiliaries, and conventions or associations of churches, and the exclusively religious activities of any religious order” are exempt from the contraceptive mandate. Id.; DRPSM at 11. The Atlanta Archdiocese and the Savannah Diocese meet this definition and the contraceptive mandate thus does not apply to them. The 2013 Final Rules also establish an “accommodation” for group health plans maintained by “eligible organizations.” 45 C.F.R. § 147.131(b). An “eligible organization” covered by a self-insured health plan qualifies for the 6 The Plaintiffs believe that Plan B and Ella are “abortifacients.” The FDA does not define or consider these drugs as abortion-inducing products. See 62 Fed. Reg. 8610.
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accommodation if it satisfies the following requirements:
(1) The organization opposes providing coverage for some or all of any contraceptive services required to be covered under § 2590.715-2713(a)(1)(iv) on account of religious objections.
(2) The organization is organized and operates as a nonprofit entity.
(3) The organization holds itself out as a religious organization.
(4) The organization self-certifies, in a form and manner specified by the Secretary, that it satisfies the criteria in paragraphs (a)(1) through (3) of this section, and makes such self-certification available for examination upon request by the first day of the first plan year to which the accommodation in paragraph (b) or (c) of this section applies.
29 C.F.R. § 2590.715-2713A(a)(1)-(4).
There is no dispute in this matter that CENGI and Catholic Charities qualify
for the accommodation. The Final Rules provide that CENGI and Catholic
Charities are not required to “contract, arrange, pay, or refer for contraceptive
coverage.” 78 Fed. Reg. at 39,874. Instead, CENGI and Catholic Charities must
complete a self-certification form stating that they are an “eligible organization,”
and provide a copy of the form to their TPA. For self-insured plans, the
regulations treat the self-certification “as a designation of the third party
administrator [] as plan administrator and claims administrator for contraceptive
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benefits pursuant to section 3(16) of ERISA.” Id. at 39,879. The TPA for a self-insured plan is not obligated to “enter into, or remain in,
a contractual relationship with the eligible organization to provide administrative services for the plan.” Id. When the TPA of a self-insured plan, however, enters into a contractual relationship with a self-insured plan and receives the selfcertification form, the regulations require the TPA to provide preventive services through the eligible organization’s self-insured plan “without cost sharing, premium, fee, or other charge to plan participants or beneficiaries, or to the eligible organization or its plan.” Id. at 39879-80; 29 C.F.R. § 2590.715-2713A(d).7 The TPA is reimbursed for providing or arranging for preventive services with a reduction of the Federally-facilitated Exchange user fees (“FFE”) that it is required to pay.8 78 Fed. Reg. at 39,880.
A self-insured plan that fails to provide preventive services coverage for women, or a non-exempt organization that fails to execute a self-certification form and deliver the form to its TPA, is subject to a fine of $100 a day for each affected
7 29 C.F.R. § 2590.715-2713A(b)(2)(i)-(ii) also prohibit the TPA from “imposing a premium, fee, or other charge, or any portion thereof, directly or indirectly, on the eligible organization.” (emphasis added). 8 The FFE is the fee required to be paid by TPAs and insurers who participate in the health care exchanges established by the ACA.
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beneficiary. PSMF at 20. If an eligible organization chooses to avoid the requirement to provide preventive services for women by cancelling its health plan, the eligible organization is subject to an annual penalty of $2,000 per fulltime employee.9 Id.
The exemptions for religious employers were effective on August 1, 2013, and the accommodation and its related rules went into effect for self-insured plans on January 1, 2014. PSMF at 7.
B. Procedural History On August 19, 2013, the Plaintiffs filed their Second Amended and Recast Verified Complaint (“Second Amended Complaint”) against Kathleen Sebelius, in her official capacity as Secretary of the United States Department of Health and Human Services (“Defendant Sebelius”), Thomas Perez, in his official capacity as Secretary of the United States Department of Labor, Jacob J. Lew, in his official capacity as Secretary of the United States Department of the Treasury, the United States Department of Health and Human Services, the United States Department of Labor, and the United States Department of the Treasury (collectively, “the 9 The penalty can be imposed only if at least one of the eligible organization’s “full-time employees obtains coverage through the Health Insurance Marketplace and qualifies for a premium tax credit, and would not be liable for taxes under 26 U.S.C. § 4980D.” Defendants’ Response to the Plaintiffs’ Statement of Material Facts and Additional Facts at 15 (“DRPSMF”).
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Government”).10 On August 19, 2013, the Plaintiffs also filed a Motion for
Preliminary Injunction seeking to enjoin the Government from enforcing the
regulations that require the provision of coverage for preventive care.
The Second Amended Complaint alleges that the contraceptive mandate and
the accommodation violate: (1) the Religious Freedom Restoration Act of 1993
(“RFRA”); (2) the Free Exercise Clause of the First Amendment; (3) the Free
Speech Clause of the First Amendment; (4) the Establishment Clause of the First
Amendment; and (5) the Religion Clauses of the First Amendment.
With respect to the Plaintiffs’ Free Speech Claims, the Complaint alleges
that the accommodation compels them to engage in speech that enables coverage
10 On August 5, 2012, Plaintiffs filed their original Complaint against the Government. In February 2012, the Government had adopted a different definition of a “religious employer” under the regulations than the definition adopted in the 2013 Final Rules, and the Government issued a temporary enforcement safe harbor for non-grandfathered group health plans provided by non-profit entities with religious objections to contraceptive coverage that did not meet the definition of “religious employer” under the prior regulations. During the safe harbor period, the Government revised the regulations, amended the definition of a “religious employer,” and established an “accommodation” for non-profit entities with religious objections to contraceptive coverage. On July 18, 2013, in light of the Government’s revised regulations, the Court held a teleconference where the Government agreed to withdraw its Motion to Dismiss the Plaintiffs’ First Amended Complaint for Lack of Jurisdiction, and the Plaintiffs agreed to file a Second Amended Complaint. On July 22, 2013, the Government withdrew its Motion to Dismiss the Plaintiffs’ First Amended Complaint for Lack of Jurisdiction.
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for artificial contraceptives, and also constitutes a content-based regulation that impermissibly prohibits them from influencing their TPA’s decision to provide coverage for artificial contraceptives.
The Complaint alleges that the regulations violate the Establishment Clause because they allow the Government to favor some religious groups over others, and thereby excessively entangle the Government in the affairs of religious groups. With respect to Plaintiffs’ claim based on the Religion Clauses of the First Amendment, they allege that the regulations unconstitutionally interfere with the internal decisions of the Atlanta Archdiocese and the Savannah Diocese.
The Plaintiffs also allege that Congress unconstitutionally delegated its legislative authority to HHS because the ACA does not contain standards for the provision of preventive services for women. Plaintiffs allege that the regulations regarding preventive care violate the APA because the regulations conflict with the Weldon Amendment, which prohibits federal agencies from discriminating against any health care entity on the basis that it does not provide coverage for abortions.
On September 23, 2013, the Government filed its Response in Opposition to the Plaintiffs’ Motion for Preliminary Injunction. The Government also filed its Motion to Dismiss or, in the alternative, for Summary Judgment based on the administrative record, regarding the Plaintiffs’ claims related to the Establishment
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Clause, the APA, and unconstitutional delegation of legislative power. On October 21, 2013, the Plaintiffs moved for Summary Judgment on all of their claims raised in the Second Amended Complaint with the exception of the APA claim, which now appears to be abandoned. Also on October 21, 2013, the Plaintiffs filed their Reply to the Defendants’ Response in Opposition to the Plaintiffs’ Motion for Preliminary Injunction. On November 18, 2013, the Government filed its Response in Opposition to the Plaintiffs’ Motion for Summary Judgment, and its Reply in support of its Motion to Dismiss or, in the alternative, for Summary Judgment on the Plaintiffs’ claims related to the Establishment Clause, the APA, and the unconstitutional delegation of legislative power. On December 4, 2013, the Plaintiffs filed their Reply to the Government’s Response in Opposition to the Plaintiffs’ Motion for Summary Judgment. II. DISCUSSION
A. Legal Standards 1. Injunctive Relief
A party seeking preliminary injunctive relief must produce evidence demonstrating: (1) a substantial likelihood of success on the merits of his claims; (2) that plaintiff will suffer irreparable injury unless an injunction is issued; (3) that the threatened injury to plaintiff outweighs any harm the proposed injunction might
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cause the non-moving party; and (4) that the requested injunction would not be adverse to the public interest. Odebrecht Constr., Inc. v. Sec’y, Fla. Dep’t of Transp., 715 F.3d 1268, 1273-74 (11th Cir. 2013). “In this Circuit, [a] preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly established the burden of persuasion as to each of the four prerequisites.” Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc).
The movant cannot rest on allegations in his pleadings, but must present competent evidence establishing all four requirements for injunctive relief. See id. If the movant fails to establish one or more of the four requirements, the Court is not required to address the others. Church v. City of Huntsville, 30 F.3d 1332, 1342 (11th Cir. 1994). The first requirement, that the movant demonstrate a substantial likelihood of success on the merits, is considered the most important of the four. See Odebrecht, 715 F.3d at 1274 (“Here, as in so many cases, the first question is critical.”); Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir. 1986) (“Ordinarily the first factor is the most important.”).
The standard for a permanent injunction is essentially the same as the standard for a preliminary injunction, except that the movant must show actual success on the merits of his claim. Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1097 (11th Cir. 2004). That is, the movant must “establish the fact of the
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[constitutional or statutory] violation.” Newman v. Alabama, 683 F.2d 1312, 1319 (11th Cir. 1982). “He must then demonstrate the presence of two elements: continuing irreparable injury if the injunction does not issue, and the lack of an adequate remedy at law.” Id.; see also Alabama v. U.S. Army Corps of Eng’rs, 424 F.3d 1117, 1127-28 (11th Cir. 2005) (listing those three requirements for obtaining a permanent injunction).
In their Motion for Summary Judgment, the Plaintiffs converted their Motion for a Preliminary Injunction into a request for permanent injunctive relief. The Government does not oppose the Plaintiffs’ conversion of their Motion for Preliminary Injunction into a request for permanent injunctive relief. Defs.’ Mem. in Opp’n to Pls.’ Mot. for Summ. J. at 49-50. The Government argues, however, that Plaintiffs are not entitled to permanent injunctive relief. Id. Given that there is no dispute about the standard for injunctive relief to be applied in this matter, and because the Court addresses the actual merits of the Plaintiffs’ statutory and constitutional claims, the Court applies the standard for a permanent injunction.
2. Summary Judgment A court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Parties “asserting that a fact cannot be or is
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genuinely disputed must support that assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1).
The party seeking summary judgment bears the burden of demonstrating the absence of a genuine dispute as to any material fact. Herzog v. Castle Rock Entm’t, 193 F.3d 1241, 1246 (11th Cir. 1999). Once the moving party has met this burden, the non-movant must demonstrate that summary judgment is inappropriate by designating specific facts showing a genuine issue for trial. Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999). Non-moving parties “need not present evidence in a form necessary for admission at trial; however, [they] may not merely rest on [their] pleadings.” Id.
The Court must view all evidence in the light most favorable to the party opposing the motion and must draw all inferences in favor of the non-movant, but only “to the extent supportable by the record.” Garczynski v. Bradshaw, 573 F.3d 1158, 1165 (11th Cir. 2009) (quoting Scott v. Harris, 550 U.S. 372, 381 n.8 (2007)). “[C]redibility determinations, the weighing of evidence, and the drawing of inferences from the facts are the function of the jury . . . .” Graham, 193 F.3d at
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1282. “If the record presents factual issues, the court must not decide them; it must deny the motion and proceed to trial.” Herzog, 193 F.3d at 1246. But, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party,” summary judgment for the moving party is proper. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
B. Analysis 1. RFRA
On January 1, 2013, the Government moved to dismiss the Plaintiffs’ Complaint on the grounds that the Plaintiffs lacked Article III standing because they failed to demonstrate an injury-in-fact. After the promulgation of the Final Rules, the Plaintiffs filed an Amended Complaint, and the Government abandoned its challenge to the Plaintiffs’ standing to assert an RFRA claim. In other “church plan” cases around the country, the Government has belatedly argued that plaintiffs, who provide health insurance to their employees through a self-insured, church sponsored health care plan, do not have standing because complying with the Final Rules does not result in the facilitation of contraceptive products and services, and the Government has no authority to ensure that contraceptive products and services will be provided to the beneficiaries of a church sponsored health care plan. At least one federal court has accepted the Government’s
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arguments and found that plaintiffs, who provide their employees with health insurance through a self-insured, church sponsored health care plan do not have standing to challenge the Final Rules. See Roman Catholic Archbishop of Washington v. Sebelius, No. 13-1441, 2013 WL 6729515, at *24-26 (D.D.C. Dec. 20, 2013). The Court rejects the Government’s arguments that were raised earlier in this case, and that were raised in other church plan cases, and the Court finds that the Plaintiffs have Article III standing to assert an RFRA claim. A detailed discussion of the Court’s reasoning regarding whether the Plaintiffs have demonstrated the requirements for Article III standing to raise an RFRA challenge can be found in Section II(B)(1)(ii) of this Order.
i. Elements of an RFRA Claim The Free Exercise Clause of the First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof… ” U.S. Const., Amdt. 1 (emphasis added). In 1990, the Supreme Court held that the Free Exercise Clause does not prohibit the Government from burdening religious practices through neutral and generally applicable laws. Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 879 (1990). The decision in Smith significantly impacted previous Supreme Court precedent, particularly its decisions in Sherbert v. Verner,
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374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972). In these cases, the Supreme Court had held that if the Government substantially burdened religious exercise, it was required to show that it had done so using the least restrictive means to achieve a compelling state interest. Gonzalez v. O Centro Espirita Beneficente Uniao Do Vegetal et al., 546 U.S. 418, 424 (2006). Smith thus appeared to relieve the Government from having to show when it substantially burdened the exercise of religion that it had a compelling state interest in doing so, and had done so by the least restrictive means.
Congress responded to the decision in Smith by enacting the RFRA. In the RFRA, Congress restored the compelling state interest and least restrictive means requirements as stated in Sherbert and Yoder. Id. Thus under the RFRA, the Government may “substantially burden a person’s exercise of religion” only if the burden imposed “is in furtherance of a compelling government interest” and “is the least restrictive means of furthering that compelling government interest.” 42 U.S.C. § 2000bb-1(a)-(b). The RFRA prohibits the Government from imposing a substantial burden on a person’s religious practices “even if the burden results from a rule of general applicability.” § 2000bb-1(a).
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a. Religious Exercise The RFRA defines religious exercise as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” § 2000cc-5(7). The plaintiff’s claimed belief “must be sincere and the practice at issue must be of a religious nature.” Levitan v. Ashcroft, 281 F.3d 1313, 1320 (D.C. Cir. 2002). “Because the burdened practice need not be compelled by the adherent’s religion to merit statutory protection, [the Court] focuses not on the centrality of the particular activity to the adherent’s religion but rather on whether the sincere religious exercise is substantially burdened.” Kammerling v. Lapin, 553 F.3d 669, 678 (D.C. Cir. 2008). The Government does not dispute that Plaintiffs’ sincerely held religious beliefs prohibit them from providing, subsidizing or facilitating abortion-inducing drugs, artificial contraceptives, sterilization services, and counseling or education related to these categories of products or services. See Smith, 494 U.S. at 877 (defining “exercise of religion” to include “not only belief and profession but the performance of (or abstention from) physical acts . . . ”).
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b. Substantial Burden i. Standard
Under the RFRA, a substantial burden on religious exercise exists when the Government (1) prohibits a person from “participation in conduct motivated by a sincerely held religious belief,” Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1138 (10th Cir. 2013) (quotation marks and citations omitted); (2) compels a person to perform acts that violate a sincerely held religious belief, Yoder, 406 U.S. at 218; or (3) places “substantial pressure” on a person to “modify his behavior and [] violate his [religious] beliefs,” Thomas, 450 U.S. at 717-18.
Several Circuits have determined that the contraceptive mandate, as applied to for-profit corporations, violates the RFRA because the Government’s requirement to provide and pay for preventive care places substantial pressure on the companies, and their owners, to modify their behavior and violate their sincerely held religious beliefs. See Korte v. Sebelius, 735 F.3d 654, 683 (7th Cir. 2013) (striking down the contraceptive mandate as applied to for-profit corporations because the Government pressure on the companies to provide contraceptive coverage and comply with the mandate forced the companies to violate their religious beliefs or face “ruinous” fines); Gilardi v. United States Dep’t of Health and Human Serv., 733 F.3d 1208, 1217 (D.C. Cir. 2013) (holding
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that the Government compelled the owners of a for-profit corporation to affirm a “repugnant belief” by requiring the owners to “meaningfully approve and endorse the inclusion of contraceptive coverage in their company’s employer provided plans . . . ”); Hobby Lobby, 723 F.3d at 1141 (holding that the Government placed a substantial burden on the plaintiffs by presenting them with a Hobson’s choice of either compromising their religious beliefs to comply with the regulations or pay onerous fines).
The Eleventh Circuit has not addressed the meaning of a “substantial burden” in an RFRA case, but it has addressed the meaning of a “substantial burden” under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). In Midrash Sephardi, Inc. v. Town of Surfside, the Eleventh Circuit interpreted and applied the section of the RLUIPA that provides:
No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution—
(A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest.
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366 F.3d 1214, 1227 (11th Cir. 2004); 42 U.S.C. § 2000cc(a)(1). 11 The RLUIPA provides the same analytical framework used to evaluate the permissibility of a burden on First Amendment Free Exercise rights under the RFRA,12 and Midrash is instructive here. The court in Midrash turned to the “Supreme Court’s definition of ‘substantial burden’ within its free exercise cases” because they were “instructive in determining what Congress understood ‘substantial burden’ to mean in RLUIPA.” Midrash, 366 F.3d at 1226. Reviewing the Supreme Court cases that have considered the “substantial burden” issue in Free Exercise cases, the court in Midrash held that “the combined import of these articulations leads us to the conclusion that a ‘substantial burden’ must place more than an inconvenience on religious exercise; a ‘substantial burden’ is akin to significant pressure which directly coerces the religious adherent to conform his or her behavior accordingly.” Id. at 1227. Our Circuit has observed that the substantial burden standard under the RLUIPA is “almost entirely” borrowed from the RFRA. Knight v. Thompson, 11 The RLUIPA also prohibits the government from substantially burdening an institutionalized person’s religious exercise with a generally applicable and neutral law unless the Government shows that the burden on religious exercise is the least restrictive means of furthering a compelling interest. 42 U.S.C. § 2000cc-1(a). 12 In 1994, the Supreme Court held that the RFRA was unconstitutional as applied to the several States and local governments. City of Boerne v. Flores, 521 U.S. 507 (1994). Congress responded by enacting the RLUIPA to restore some of RFRA’s protections as applied to State and local governments.
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723 F.3d 1275, 1282 (11th Cir. 2013). “[W]hen the significance of a religious belief is not at issue, the same definition of ‘substantial burden’ applies under the Free Exercise Clause, RFRA and RLUIPA.” Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 813 (8th Cir. 2008); see also Hobby Lobby, 723 F.3d at 1138 n.13 (“Congress intended the substantial burden tests in RFRA and RLUIPA to be interpreted uniformly.”) (citations omitted).
The Court concludes that the Eleventh Circuit’s definition of a “substantial burden” in Midrash is the definition that other circuits have applied and it is the definition our circuit will apply in RFRA cases. See Korte, 735 F.3d at 683; Gilardi 733 F.3d at 1217; Hobby Lobby, 723 F.3d at 1138. The Plaintiffs thus must show that the requirement imposed on CENGI and Catholic Charities to prepare the certification in the form and manner specified by the Secretary and to then deliver it to Meritain Health is more than an inconvenience, and one which places substantial pressure on the Plaintiffs to modify their behavior and violate their religious beliefs.
Plaintiffs argue that a substantial burden exists whenever a person sincerely believes that the challenged regulations violate his religious beliefs and the Government imposes a substantial penalty for noncompliance. This standard is not consistent with the substantial burden analysis set out in Midrash. It also ignores
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the Supreme Court’s decision in Thomas in which the Court stated that a substantial burden exists when the Government “puts substantial pressure on an adherent to modify his behavior and to violate his beliefs.” 450 U.S. at 717-18 (emphasis added).
Plaintiffs also rely on a sentence from Hobby Lobby in which the Tenth Circuit stated that “our only task is to determine whether the claimant’s belief is sincere, and if so, whether the government has applied substantial pressure on the claimant to violate that belief.” 723 F.3d at 1137. The statement is taken out of context. The statement was made to address the Government’s argument that the RFRA does not protect a plaintiff when “government coercion somehow depends on the independent actions of third parties.” Id. The Plaintiffs also ignore that the Tenth Circuit defined substantial burden as “‘substantial pressure on an adherent . . . to engage in conduct contrary to a sincerely held religious belief.’” Id. at 1138 (quoting Abdulhaseeb v. Calbone, 600 F.3d 1301, 1315 (10th Cir. 2010) (emphasis added)). In Hobby Lobby, Gilardi and Korte, the courts were not focused on whether the for-profit corporations and their owners were forced to modify their behavior. In those cases, the plaintiffs were compelled to provide and pay for contraceptive coverage, which is a self-evident modification of behavior that was not required to be addressed. Here, the Plaintiffs are not required to directly
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provide or pay for contraceptive coverage. Defendants argue that this case is one where the requirement imposed on
the Plaintiffs is the simple completion of the self-certification form that is no burden at all. This contention is an overly simplistic, conclusory view of the case, and denies the nature of the requirement and the pressure imposed on those required to undertake self-certification. In Kammerling, the D.C. Circuit interpreting the RFRA held that the burden imposed on a religious practice focuses on “whether the sincere religious belief is substantially burdened.” 535 F.3d at 678. What is required in the case here is a critical evaluation of whether the requirements of the accommodation impose a substantial burden on these Plaintiffs’ religious exercise. “[An] inconsequential or de minimis burden on religious practice does not rise to [the] level of a substantial burden, [and neither] does a burden on activity unimportant to the adherent’s religious scheme.” Id. The Government does not contend that there is no burden on the Plaintiffs’ religious practices. It argues instead that any burden imposed by the contraceptive mandate is not substantial, but de minimis.
The nature of burdens on the exercise of religious rights has from time to time been addressed in other courts. For example, in Henderson v. Kennedy, the plaintiffs objected to regulations that prohibited them from selling t-shirts on the
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National Mall. 253 F.3d 12, 13-14 (D.C. Cir. 2011). In Mahoney v. Doe, the plaintiffs challenged regulations that prohibited them from “chalking” the sidewalk near the White House. 642 F.3d 1112, 1115 (D.C. Cir. 2011). In both of these cases, the D.C. Circuit found the burden on First Amendment rights not to be substantial because the plaintiffs could sell or write what they wanted—they just had to comply with restrictions against doing so in certain limited, defined locations. That is, in both Henderson and Mahoney, the D.C. Circuit found that the regulations did not impose a substantial burden on the plaintiffs under the RFRA because the restrictions “were one of a multitude of means” through which the plaintiffs could exercise their religion and other alternatives were available, in fact immediately, near the mall or the White House to the plaintiffs to sell or write what they wanted. Henderson, 253 F.3d at 17; Mahoney, 642 F.3d at 1121. Similarly, in Smith v. Allen, the Eleventh Circuit held that a prison facility’s decision to limit the plaintiff’s religious practices to a secure location placed no more than an “incidental burden” on his practice of Odinism because the plaintiff remained free to practice his religion in a secure area. 502 F.3d 1255, 1279 (11th Cir. 2007) (overruled on other grounds by Sossamon v. Texas, 131 S. Ct. 1651 (U.S. 2011)).
An incidental burden or a mere inconvenience to a person’s religious exercise does not violate the RFRA. Id. The Court thus evaluates whether the
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contraceptive mandate is merely an inconvenience or has only a de minimis impact on the Plaintiffs’ religious exercise, or whether the burden is greater. The Government relies on “inconsequential” and “de minimis” burden cases to assert that all the Plaintiffs are required to do here is fill out a simple form stating their sincerely held religious beliefs so that their employees can, from other sources, be given the contraceptive products and services to which Plaintiffs object on religious grounds. The Plaintiffs allege that they are compelled to modify their behavior and engage in conduct that violates their sincerely, and historically, held religious beliefs. The question here is whether the regulations challenged in this case are a substantial burden or a mere de minimis imposition on Plaintiffs’ religious beliefs. The Court evaluates, on the facts of this case, whether the regulations put “substantial pressure” on the Plaintiffs to modify their behavior and violate their sincerely held religious beliefs. Thomas, 450 U.S. at 717-18.
ii. CENGI and Catholic Charities13 The Government describes the self-certification requirement as a “purely administrative” act that does not compel CENGI and Catholic Charities to modify
13 The Plaintiffs do not differentiate the claims of the Atlanta Archdiocese and the Savannah Diocese from the claims of CENGI and Catholic Charities. The Court, however, addresses them separately because the contraceptive mandate and the accommodation do not apply to the Diocesan Plaintiffs.
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their behavior and thus imposes a de minimis burden on their religious exercise. In the Government’s view, the accommodation does not impose a substantial burden because CENGI and Catholic Charities remain free to refuse to provide contraceptive coverage, “voice their disapproval of contraceptive use, and [] encourage [their] employees to refrain from using contraceptive services.” Defs.’ Mem. In Opp’n to Pls.’ Mot. for Summ. J. at 5-6.
The Government also alleges that the true nature of Plaintiffs’ religious objection is directed at third parties—mainly, the employees of CENGI and Catholic Charities who may receive contraceptive coverage from Meritain Health free of charge. On this view of the burden, the Government argues that the requirement to self-certify and deliver the form to a TPA is a permissible burden that does not give rise to an RFRA violation. The Government rejects that completion of the self-certification form compels the Plaintiffs to modify their own behavior and violate their sincerely held religious beliefs. The Government thus claims that Plaintiffs’ RFRA claim is indistinguishable from the plaintiffs’ objection to the actions of third parties in Bowen and Kammerling. The Court disagrees.
Bowen v. Roy involved an application for and receipt of benefits from the Aid to Families with Dependent Children program and the Food Stamps program.
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476 U.S. 693 (1986). The plaintiffs specifically objected to the Government’s use of a social security number for their younger daughter, “Little Bird of the Snow,” on the ground that the use of the number violated their religious beliefs. Id. at 695. The plaintiffs asserted a religious belief that “control over one’s life is essential to spiritual purity and ‘indispensible to becoming a holy person.’” Id. at 696. The Supreme Court found that plaintiffs’ religious beliefs were not violated by the Government’s use of the social security number. Id. at 712. The Supreme Court noted that its cases “have long recognized a distinction between the freedom of individual belief, which is absolute, and the freedom of individual conduct, which is not absolute.” Id. at 699. The Court observed that the plaintiffs’ objection was to the government’s use of the social security number because they claimed that the use “may harm [their] daughter’s spirit.” Id. The Court found that the requirement to provide a social security number was “wholly neutral,” and specifically noted that:
It does not intrude on the organization of a religious institution or school. It may indeed confront some applicants for benefits with choices, but in no sense does it affirmatively compel appellees, by threat of sanctions, to refrain from religiously motivated conduct or to engage in conduct that they find objectionable for religious reasons.
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Id.14 Bowen is a different case than the one before the Court. Here, the
Government acknowledges that the contraceptive mandate infringes on religious beliefs and has excluded churches and other faith based organizations from providing contraceptive coverage to their employees. Recognizing that the requirement also impacts non-exempt faith based organizations whose services are offered as, adjacent to, or part of the operations of exempted organizations, the Government has used the non-exempt faith-based organizations as a means of requiring contraceptive coverage and, in doing so, has designed an allegedly de minimis burden that it claims does not substantially burden the non-exempt organizations’ religious beliefs. In doing so, the Government has ignored the Supreme Court’s recognition in Bowen that the “freedom of individual religious belief is absolute,” and at its core, the Government seeks to “affirmatively compel” the non-exempt Plaintiffs to engage in conduct that they find objectionable for religious reasons. Id. The Government argues that it can do so because the effort to engage in the objectionable conduct is slight, and because the burden is 14 The Court generally noted that it was the plaintiffs who sought benefits from the Government and who asserted that, because of certain beliefs, they should be excused from complying with conditions that were binding on all other persons who similarly sought the same benefits from the Government. Id. at 703. That is not the case here.
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permissible under the RFRA.15 Bowen, in fact, may support the Plaintiffs in this case. The majority’s
holding in Bowen was limited to the dissemination of information already in the possession of the Government, which did not compel the plaintiffs to engage in any action or conduct. The Supreme Court specifically held that the Government may use and disseminate information already in its possession even if the plaintiffs sincerely believed that the Government’s use of the information was offensive to their sincerely held religious beliefs. Id. at 699. The plaintiffs also objected, however, to the compulsion to provide the social security number to the Government. Five Justices strongly suggested that the compulsion to provide the social security number—as opposed to the objection to the number’s use by someone else—violated the plaintiffs’ First Amendment rights. See id. at 732 (dissenting in part because “the Government failed to show that granting a religious exemption to those who legitimately object to providing a Social Security number will do any harm to its compelling interest in promoting welfare fraud.” ) (O’Connor, J., Brennan, J., and Marshall, J., concurring in part and dissenting in 15 The Court in Bowen also noted the distinction between governmental compulsion and conditions relating to governmental benefits. Id. at 705. Here, CENGI and Catholic Charities are compelled to participate in the process to provide contraceptive coverage through a third party or be penalized for not participating in the process.
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part); Id. at 733 (dissenting from the Court’s opinion and judgment with respect to both the objection to provide the social security number and the Government’s independent use of the social security number) (White, J., dissenting); Id. at 714716 (stating that the case should be remanded to determine whether the issue was moot, but agreeing that the Government “may not deny assistance to Little Bird of the Snow solely because her parents’ religious convictions prevent them from supplying the Government with a social security number for their daughter.”) (Blackmun, J., concurring in part). Of course, the Court recognizes that the concurring and dissenting opinions cited above are not part of Bowen’s holding. That five Justices in Bowen were willing to find a constitutional violation when the plaintiff was compelled to provide a social security number not only shows that the Government’s reliance on Bowen is misplaced, but it also discredits the Government’s defense that the requirement to sign and deliver the self-certification form is de minimis.16
The Government’s reliance on Kammerling is equally misplaced for the same reasons. In Kammerling, the plaintiff claimed that the taking of DNA 16 There is no objective difference between the requirement to provide a social security number in Bowen, and the requirement to execute the self-certification form in this case. The requirement to provide a social security number can also be characterized as an “administrative act,” but that does not mean it is shielded from an RFRA challenge.
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samples from him “defile[d] God’s temple” in violation of his Free Exercise rights. 553 F.3d at 677. The D.C. Circuit considered whether the sampling requirement violated the RFRA by putting “substantial pressure on [Kammerling] to modify his behavior and violate his beliefs.” Id. at 678. The D.C. Circuit held that Kammerling did not have any exercise of religion that he alleged was the subject of the burden. Id. at 679.
In reaching this conclusion, the D.C. Circuit in Kammerling applied Bowen to conclude that the plaintiff’s only objection was directed at the actions of a third party, but he had no objection, on religious grounds or otherwise, to any of his own acts being compelled by the Government. Id. at 679-80. The facts are different here. In this case, CENGI and Catholic Charities are compelled by the Final Rules to provide a self-certification form to their TPA—an act that they, on their own, are required to perform independent of any third party’s act. The Final Rules require the Plaintiffs to state their objection to the services and products that the ACA mandates, and then require the Plaintiffs to take affirmative action that enables a third party to provide to the Plaintiffs’ employees the very services to which Plaintiffs have a sincerely held religious objection. The manner in which the self-certification form is designed forces the Plaintiffs to take action in direct contradiction to what they believe. At its core, the self-certification form requires
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CENGI and Catholic Charities to modify their behavior when the Final Rules compel them to sign and deliver a document that is designed by the Government to set in motion delivery of contraceptive products and services to which they so strenuously object.
The Final Rules “treat[]” the self-certification form as a “designation of the third party administrator [] as plan administrator and claims administrator for contraceptive benefits pursuant to section 3(16) of ERISA.” 78 Fed. Reg. at 39,879. The self-certification form provides notice to a TPA of its obligations under the Final Rules. Id. The TPA’s duty to pay or arrange for contraceptive coverage is imposed upon receipt of the self-certification form from CENGI and Catholic Charities. Id. at 39,879-80. The Final Rules explicitly provide that the TPA’s duty to provide contraceptive coverage arises only if the TPA enters into a contract with a self-insured plan and the TPA receives a self-certification form from eligible organizations such as CENGI and Catholic Charities. Id. The TPA’s obligation to provide contraceptive coverage exists only “so long as” the employees of Catholic Charities and CENGI remain enrolled in the Atlanta Plan. 45 CFR § 147.131(c)(2)(i)(B). In Reaching Souls v. Sebelius, the Government conceded that the form is the vehicle by which the TPA seeks reimbursement plus a 10% reward for providing contraceptive coverage. The Government also
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conceded that federal reimbursement is not available without the self-certification form. Dec. 16, 2013 Hrn’g Tr. at 96:15-18, No. 5:13-cv-1092-D, 2013 WL 6804259.
After a self-certification form is provided to the TPA, the Final Rules impose a further unconstitutional content-based restriction on the speech of CENGI and Catholic Charities by forbidding those required to execute a selfcertification form from seeking to influence their TPA’s decision to provide contraceptive coverage. See Section II (B)(4) of this Order. This is an additional restriction on CENGI and Catholic Charities that compels them to modify their behavior and to violate their religious beliefs.
If Meritain Health refuses to provide contraceptive coverage, the plain terms of the Final Rules require CENGI and Catholic Charities to find a TPA that is willing to provide coverage for preventive care. Roman Catholic Archbishop of Washington, 2013 WL 6729515, at *20 n.19 (noting that the Government’s interpretation of the regulations would require an eligible organization “to shop around to find a new [TPA] that will assume responsibility for the coverage or proceed without a [TPA] and await instructions from the government on how it can
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otherwise satisfy its obligations” if the prior TPA declines to provide contraceptive coverage).17
If CENGI and Catholic Charities refuse to self-certify, the Government places pressure on them to either provide contraceptive coverage on their own or face a fine of $100 per day for each affected beneficiary. If CENGI and Catholic Charities cancel their health plans altogether to avoid the contraceptive mandate, they may be subject to an annual penalty of $2,000 per full-time employee.
The Court concludes that the plain terms of the Final Rules show that the purpose and effect of the self-certification form is to enable the provision of contraceptive coverage. The self-certification form is an integral part of the Government’s contraceptive coverage scheme. It creates legal rights and responsibilities, and it is a Government imposed device that pressures the Plaintiffs into facilitating the contraceptive coverage to which they have sincerely held religious objections. Without the self-certification form, a TPA is not authorized to provide coverage, and a TPA cannot seek federal reimbursement plus 10% for margin and overhead. The record here persuasively establishes the legal and practical burden the accommodation and the certification requirement place on
17 This is another burden imposed by the Final Rules on the non-exempt Plaintiffs to modify their behavior and to violate their religious beliefs.
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CENGI and Catholic Charities. The accommodation thus imposes substantial pressure on the Plaintiffs to modify their behavior and violate their religious beliefs, including by enabling and facilitating contraceptive coverage to which they have strong religious objections.
The Court also concludes that the accommodation places substantial pressure on Catholic Charities and CENGI to either compromise their religious beliefs or suffer the onerous economic consequence of adhering to what they believe. See Korte, 735 F.3d at 682-83; Gilardi, 733 F.3d at 1218; Hobby Lobby, 723 F.3d at 1141.
The Court’s conclusion does not change even if the Government had argued, as it did in other cases, that it has no ERISA authority to require a church plan to contract with a TPA to provide contraceptive coverage or compel a TPA to provide contraceptive coverage after the TPA agrees to enter into a contract with the Plaintiffs and receives the self-certification form. It is the fact of the requirement that is important, not whether the Government will or will not choose to enforce it.
The regulatory requirements and incentives in place here support the very real possibility, if not probability, that a TPA will provide contraceptive coverage voluntarily. If the TPA voluntarily complies with the contraceptive mandate, Plaintiffs’ complicity in a scheme that results in the delivery of products and
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services in violation of their sincerely held religious beliefs is undiminished. If the TPA voluntarily complies with the contraceptive mandate, the legal rights and responsibilities created by the self-certification form that are discussed in this Order largely remain unchanged, including federal reimbursement for the TPA that is not available without the self-certification form. If the TPA voluntarily complies with the contraceptive mandate, the Government imposes the additional burden to unconstitutionally prohibit the Plaintiffs from influencing the TPA to not provide coverage that they vehemently and sincerely oppose.
The Atlanta Archdiocese has expressed its intention to remove CENGI and Catholic Charities from the Atlanta Plan if they are required to self-certify and provide the certification form to Meritain Health. Given that CENGI and Catholic Charities are not going to remain on the Atlanta Plan if required to comply with the contraceptive mandate, the burdens imposed on them by the Final Rules remain unchanged, including the additional obligation to find a TPA that provides contraceptive coverage once they are removed from the Atlanta Plan. See 29 C.F.R. § 2590.715-2713A(b)(1)-(4).18
The Government finally argues that even if the regulations impose more than 18 The terms of the Final Rules, when read as a whole, require CENGI and Catholic Charities to find a TPA that will provide contraceptive coverage. See 29 C.F.R. § 2590.715-2713A(b)(1)-(4).
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a de minimis burden on Plaintiffs’ religious exercise, the burden is indirect and too attenuated to be substantial under the RFRA. To support this argument, the Government claims that the ultimate decision to use artificial contraceptives rests with the Plaintiffs’ employees, and the Plaintiffs are “further insulated” by the fact that their TPA “will actually contract, arrange, pay and refer” for contraceptive coverage. Defs.’ Mem. In Opp’n to Pls.’ Mot. for Prelim. Inj. at 22. Plaintiffs’ religious beliefs unequivocally forbid the facilitation of artificial contraceptives and sterilization procedures. In United States v. Lee, the plaintiff objected to being compelled by the Government to pay into the Social Security system because the system allowed third parties to act inconsistently with his religious beliefs. 455 U.S. at 257 (1981). The Government responded to the plaintiff’s claims by arguing that the “payment of social security taxes will not threaten the integrity of the Amish religious belief or observance.” Id. The Supreme Court rejected the Government’s rationale because “it is not within the judicial function and judicial competence, however, to determine whether [the plaintiff] or the government has the proper interpretation of his Amish faith; [c]ourts are not arbiters of scriptural interpretation.” Id. (internal quotations marks omitted).
The Government’s attenuation argument requires the Court to determine whether facilitating access to artificial contraceptives and sterilization procedures
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violates the Plaintiffs’ religious beliefs. The Court, of course, is not authorized to decide if the Plaintiffs have correctly interpreted their faith. To argue that it does misunderstands the role of the Court. In Lee, the Supreme Court accepted the Amish carpenter’s claim that payment of Social Security taxes substantially burdened his religious exercise because the system imposed obligations on him that allowed third parties to act inconsistently with his religious beliefs. The plaintiff’s religious objection in Lee is indistinguishable from the Plaintiffs’ religious objection in this matter to the facilitation of artificial contraceptives that may ultimately be used by others.
The Court rejects the Government’s argument that the burden on Plaintiffs’ religious exercise is too indirect and attenuated to be substantial under the RFRA. See also Korte, 735 F.3d at 684 (holding that “no civil authority can decide” whether “any complicity problem is insignificant or nonexistent.”); Gilardi, 733 F.3d at 1218 (rejecting the Government’s argument that the contraceptive mandate only imposes an indirect burden on the owners of a profit corporation because “the burden on religious exercise does not occur at the point of contraceptive purchase; instead, it occurs when a company’s owners fill the basket of goods and services that constitute a healthcare plan.”); Hobby Lobby, 723 F.3d at 1141 (stating that “Hobby Lobby and Mardel have drawn a line at providing coverage for drugs or
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devices they consider to induce abortions, and it is not for us to question whether the line is reasonable.”). CENGI and Catholic Charities have shown that the selfcertification form imposes a substantial burden on their religious exercise under the RFRA.
iii. The Diocesan Plaintiffs There is no dispute that the Atlanta Archdiocese and the Savannah Diocese are exempt from the contraceptive mandate as religious employers. The Plaintiffs, however, raise two issues that arguably apply to whether the Diocesan Plaintiffs can state a cause of action under the RFRA. First, the Plaintiffs allege that the Atlanta Plan and the Savannah Plan will “almost certainly be required . . . to subsidize the objectionable products and services” that are covered by the contraceptive mandate. Second, the Plaintiffs allege that the Atlanta Plan and Savannah Plan will be forced to expel their non-exempt affiliates if the non-exempt affiliates are required to self-certify and deliver the certification form to their TPA. The Plaintiffs speculate that the costs of coverage are bound to be passed back to the church plans. They argue that the reductions in user fees offered to the TPA, or to the ultimate provider of coverage, for participating in the Federallyfacilitated health exchange
would be established through a highly regulated and bureaucratic process, and it appears most unlikely that the
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reduction in user fees will fully compensate the regulated entities for the costs and risks associated with providing or procuring the objectionable coverage for those religious organizations that qualify for the “accommodation” and with complying with the Final Rule’s regulatory framework. As a result, few if any [TPAs] are likely to participate in this regime, and those that do are likely to increase fees charged to self-insured organizations.
Pls.’ Mot. for Prelim. Inj. at 25 (emphasis added). This claim is speculative at best,
and appears to be derived from an identical claim regarding self-insured
organizations described in Professor Harrington’s affidavit, attached as Exhibit A
to the Plaintiffs’ Motion for Preliminary Injunction. Professor Harrington’s
affidavit is equally speculative because it does not offer any evidence to support
the allegation that the Plaintiffs will pay for or subsidize the costs of contraceptive coverage.19 The Plaintiffs also ignore that the Final Rules require the TPA to
provide coverage for preventive services “without cost sharing, premium, fee, or
other charge to plan participants or beneficiaries, or to the eligible organization or
19 Plaintiffs do not specify whether each non-exempt affiliate bears its own health care costs. The Court notes that if CENGI and Catholic Charities directly pay for the health care costs of their own employees, the Diocesan Plaintiffs cannot claim that they will be required to pay for or subsidize contraceptive coverage because the Diocesan Plaintiffs are exempt from the ACA. The Court also rejects the Plaintiffs’ claim that the Final Rules require CENGI and Catholic Charities to pay for or subsidize contraceptive coverage for the same reasons identified in this section of the Court’s Order.
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its plan.” 78 Fed. Reg. at 39879-80 (emphasis added). The Final Rules specifically prohibit the TPA from “imposing a premium, fee, or other charge, or any portion thereof, directly or indirectly, on the eligible organization.” 29 C.F.R. § 2590.715-2713A(b)(2)(i)-(ii) (emphasis added). To accept the Plaintiffs’ economic theories, the Court would be required to assume that the TPA may choose to violate the law by indirectly imposing costs on the Plaintiffs for providing contraceptive coverage, and that the Government will not enforce the law to prevent the TPA from imposing such costs. The Court declines to assume the facts required by these arguments.
The Diocesan Plaintiffs also claim that the Final Rules pressure them to “expel” their non-exempt affiliates from their health plans in violation of the RFRA. The Diocesan Plaintiffs do not allege that their religious beliefs require all of their affiliates to be on a single health plan. In the absence of a compelled act that violates a religious tenet, there is no substantial burden on an adherent’s religious beliefs under the RFRA. Kammerling, 553 F.3d at 679-80. The Diocesan Plaintiffs have failed to show any burden on their religious exercise, and their Motion for Summary Judgment on the RFRA claim is required to be denied.
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c. Compelling Interest The RFRA requires the Government to show that “the compelling interest test is satisfied through the 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 430-31 (internal citations omitted). A “broadly formulated interest[]” that justifies the “general applicability of [a] government mandate[]” is insufficient to show a compelling state interest under the RFRA. Id. at 431. The Government argues that its interest in promoting public health and providing women with equal access to health care are compelling. The Court does not doubt that the Government’s interests are important. The Court, however, is required to strictly “scrutinize the asserted harm of granting specific exemptions to particular religious claimants.” Id. The Government has not clearly explained how granting an exemption to CENGI and Catholic Charities from the contraceptive mandate would undermine its interests in promoting public health and providing women with equal access to health care. The Government claims that exempting CENGI and Catholic Charities from the contraceptive mandate would hinder its ability to effectively and uniformly administer the requirements of the ACA. That claim is discredited by the Government’s advocacy in other church plan cases in which it has argued that
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plaintiffs lack standing because self-certification will not necessarily result in the delivery of contraceptive products and services. If the Government has conceded that it has no power, or interest, to ensure that the employees of CENGI and Catholic Charities are provided with contraceptive coverage, then it appears unnecessary to require CENGI and Catholic Charities to self-certify and deliver the certification form to their TPA.20
Given the Government’s argument that the accommodation will not necessarily result in the delivery of contraceptive coverage, the Government has failed to explain why the non-exempt Plaintiffs are required to fill out the form. In Little Sisters of the Poor, et al. v. Sebelius, the Solicitor General of the United States recently stated that the purpose of the self-certification form is to “provide for regularized, orderly means of permitting eligible individuals or entities to declare that they intend to take advantage of them. That is what the selfcertification under the regulations accomplishes . . . .” No. 13A691, Mem. for
20 Uniform application of a law can be a compelling interest if the Government shows that granting an exemption would seriously hinder its ability to administer a federal program. Lee, 455 U.S. at 258. Here, the Government cannot claim that its ability to administer the contraceptive mandate will be compromised if an exemption is extended to CENGI and Catholic Charities because the Government does not even expect the employees of CENGI and Catholic Charities to be provided with contraceptive coverage in the first place. This belief doubtfully is realistic.
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Resp’t in Opp’n to Appl. for an Inj. Pending Appeal, 2014 WL 108374, at *33 (Jan. 3, 2014). A regularized, orderly means of allowing CENGI and Catholic Charities to declare that they will not provide contraceptive coverage can be accomplished without embedding them in a regulatory framework that renders them morally complicit in a scheme to provide contraceptive coverage. This purpose could be achieved by requiring the employees who request coverage to self-certify that their employer is a religious nonprofit that does not provide contraceptive coverage. It could also be achieved by requiring CENGI and Catholic Charities to do no more than simply inform the Government that they are non-profit organizations with religious objections to providing contraceptive coverage without explicitly treating their objections as an authorization for a TPA to provide coverage and seek reimbursement from the Government or designating their written objection as an instrument that creates legal rights and responsibilities.21 See Little Sisters of the Poor, 2014 WL 272207, at *1 (Jan. 24, 2014) (remanding to the Tenth Circuit and enjoining the Defendants from enforcing the contraceptive mandate during the pendency of the appeal, so long as plaintiffs submit written objections to providing contraceptive coverage based on
21 For these reasons, the Government also cannot meet its burden to show that the accommodation is the least restrictive means of achieving its goals.
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religious beliefs directly to Defendant Sebelius). The Government’s interests in promoting public health and providing
women with equal access to health care also cannot be compelling because the contraceptive mandate does not apply to the insurance plans of millions of women in this country. “A law cannot be regarded as protecting an interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited.” O Centro, 546 U.S. at 547 (internal citations and quotation marks omitted). Grandfathered health plans, small businesses and religious employers are all exempt from the contraceptive mandate. The Government’s claim that it has a compelling interest in enforcing the accommodation against CENGI and Catholic Charities because it seeks to promote the uniform availability of contraceptive products and services is severely undermined by the exemptions to the contraceptive mandate that leave millions of women without coverage for contraceptive care. See Korte, 735 F.3d at 686-87; Gilardi, 733 F.3d at 1222-23; Hobby Lobby, 723 F.3d at 1144.
d. Least Restrictive Means Even if the Court assumed that the Government’s stated interests in enforcing the accommodation against CENGI and Catholic Charities are compelling, the Government has not demonstrated that the contraceptive mandate
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is the “least restrictive means of furthering . . . [those] interests.” See 42 U.S.C. § 2000bb-1. “A statute or regulation is the least restrictive means if ‘no alternative forms of regulation would [accomplish the compelling interest] without infringing [religious exercise] rights.’” Kammerling, 553 F.3d at 684 (quoting Sherbert, 374 U.S. at 407). The Plaintiffs suggest that the Government could achieve its goals without infringing their religious exercise by (1) directly providing contraceptive coverage to the non-exempt Plaintiffs’ employees, (2) offering grants to providers of contraceptive services to incentivize free coverage, or (3) giving tax incentives to women who purchase contraceptive services. Pls.’ Mot. for Prelim. Inj. at 30. The Seventh Circuit recognized as workable alternatives the options stated in (1) and (2) above. Korte, 735 F.3d at 686. The Government argues that Plaintiffs’ proposed alternatives are not viable because HHS lacks the statutory authority to implement them, and because the proposed alternatives are infeasible and ineffective. HHS can request Congress to provide the requisite authority needed to implement less restrictive means towards achieving the Government’s goals. Roman Archdiocese of New York, 2013 WL 6579764, at *18. The Court also finds that the Government has not offered any evidence to support its assertion that the Plaintiffs’ proposed alternatives would be ineffective or infeasible. See also id. at *18-19.
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The Court concludes that there is no genuine issue of material fact regarding whether the contraceptive mandate and its accompanying requirements in the Final Rules impose a substantial burden on the non-exempt Plaintiffs’ religious exercise. The Government also has failed to show that the contraceptive mandate is the least restrictive means towards achieving a compelling state interest. CENGI’s and Catholic Charities’ Motion for Summary Judgment is granted on their RFRA claim, and the Government is permanently enjoined from enforcing the Final Rules against them.
ii. Standing The Court now addresses the Government’s arguments regarding the Plaintiffs’ standing to assert an RFRA claim that were raised earlier in this matter, and the Government’s arguments that were raised in other church plan cases. On January 1, 2013, the Government moved to dismiss the Plaintiffs’ Complaint on the grounds that the Plaintiffs lacked Article III standing. The Government argued that the Atlanta Plaintiffs could not demonstrate an injury-infact because the health plans were grandfathered and thus exempt from the requirements of the contraceptive mandate. The Government also argued that the Plaintiffs could not show an injury-in-fact because the temporary enforcement safe harbor protected the Plaintiffs until August 1, 2013, and the Government’s Final
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Rules were subject to revision during that time.22 The Government withdrew its Motion to Dismiss for Lack of Jurisdiction and no longer contends that the Plaintiffs lack standing to bring their RFRA claim. The Court, however, will address whether the Plaintiffs have adequately alleged an injury-in-fact because the Atlanta Plan remains grandfathered and thus exempt from the ACA.23
The Government also has sought to sidestep certain important issues on jurisdictional grounds in other church plan cases. There are, to date, at least, 20 cases around the country in which federal courts have addressed whether the requirement imposed on non-profit eligible organizations to execute a selfcertification form pursuant to the contraceptive mandate violates the RFRA. Eight of these cases, including this one, involve church plan plaintiffs where the employees of non-exempt eligible organizations that qualify for the accommodation receive health insurance through the church’s self-insured health care plan.
22 The 2013 Final Rules are in place, and there is no further revision contemplated. 23 “A federal court not only has the power but also the obligation at any time to inquire into jurisdiction whenever the possibility that jurisdiction does not exist arises.” Johansen v. Combustion Eng'g, Inc., 170 F.3d 1320, 1328 n.4 (11th Cir. 1999). The Court has an independent duty to examine its own jurisdiction, and “standing is perhaps the most important of [the jurisdictional] doctrines.” Walden v. Centers for Disease Control & Prevention, 669 F.3d 1277, 1283 (11th Cir. 2012) (quoting FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230–31 (1990)).
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In a twist to the sequence of events that have unfolded in some of the other church plan cases, the Government has belatedly argued that church plan plaintiffs do not have standing to assert an RFRA claim. The Government’s belated challenge to the plaintiffs’ standing to raise an RFRA claim was based on its discovery, apparently after a careful reading of what is in the law, that it does not have statutory authority to enforce a TPA’s obligation to provide coverage for preventive care. The crux of the Government’s claim in these other cases is that church plan plaintiffs have suffered no injury-in-fact for purposes of Article III standing because the TPA of a church plan will not provide contraceptive coverage, and if the Government has no power to compel the TPA of a church plan to provide contraceptive coverage, no contraceptive coverage will be provided to the beneficiaries of a church sponsored health care plan. The Government thus reasons that Plaintiffs cannot assert an injury-in-fact for purposes of Article III standing because the act of self-certification does not, in fact, result in the facilitation of contraceptive products and services.
Article III of the United States Constitution provides that the judicial power of the federal courts extends only to “cases” and “controversies.” U.S. Const. art. III, § 2, cl. 1. It is well-settled that this limited extension of power imposes substantive constitutional constraints on the power of federal courts to resolve legal
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disputes. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The doctrine of standing is a fundamental boundary of the judicial power to decide cases and controversies. Id. “[T]he question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498 (1975). This is a threshold issue in every federal case. Id. “[A] plaintiff who invokes the jurisdiction of a federal court bears the burden to show (1) an injury-in-fact, meaning an injury that is concrete and particularized, and actual or imminent, (2) a causal connection between the injury and the [challenged] conduct, and (3) a likelihood that the injury will be redressed by a favorable decision.” CAMP Legal Defense Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1269 (11th Cir. 2006) (internal quotation marks omitted). Standing “must be supported in the same way as any other matter on which the plaintiff bears the burden proof,” that is, “with the manner and degree of evidence required at the successive stages of the litigation.” Id.
The Plaintiffs allege that they cannot continue their grandfathered status under the ACA because the Atlanta Plan’s coverage costs have increased by over 14% each year since March 23, 2010. This increase in coverage costs is alleged to have required the Atlanta Archdiocese to incur millions of dollars in losses to maintain its grandfathered status to avoid the requirements of the ACA. Under the
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regulations, grandfathered status is lost if an insurance plan’s employer contributions decrease by more than 5% of the cost of coverage in comparison to the employer contributions made as of March, 2010. 26 C.F.R. § 54.98151251T(g)(1)(v). The Atlanta Plan’s coverage costs have increased by over 14% per year since March 2010. The Plaintiffs assert that these increased costs will require their employer contributions to decrease by more than 5% of the cost of coverage in comparison to their contributions made in March, 2010. When these additional costs for coverage cause the employer contributions to decrease, the Atlanta Plan will lose its grandfathered status. When the Atlanta Plan is no longer grandfathered, the Final Rules will require CENGI and Catholic Charities to comply with the contraceptive mandate.
The Atlanta Archdiocese has maintained its grandfathered status to avoid CENGI and Catholic Charities from having to comply with the accommodation. When this grandfathered status is lost, as the Atlanta Plaintiffs advise the Court that it will in 2014, CENGI and Catholic Charities will be required to comply with the accommodation. It is well-established that economic losses caused by regulations constitute an injury-in-fact for purposes of standing. See Planned Parenthood Ass’n of Atlanta Area, Inc. v. Miller, 934 F.2d 1462, 1465 (11th Cir. 1991); Chiles v. Thornburgh, 865 F.2d 1197, 1209-10 (11th Cir. 1989) (finding
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that the “economic detriment suffered by Dade County as a result of the Krome riots and escapes is the epitome of an injury in fact.”). The Court finds that the economic losses sustained by the Atlanta Archdiocese to protect the Atlanta Plan’s grandfathered status to allow CENGI and Catholic Charities to avoid having to comply with the contraceptive mandate are sufficient to show an injury-in-fact. This economic loss—the incurred cost increases to protect the Atlanta Plan’s grandfathered status—results solely from the Atlanta Archdiocese’s resolve to protect CENGI and Catholic Charities from being subject to the accommodation, including the requirement to provide a self-certification form that results in the provision of contraceptive coverage to their employees.
That the Atlanta Plaintiffs assert the inevitable loss of their grandfathered status because they cannot continue to incur coverage cost increases also supports that there is an imminent, injury-in-fact for purposes of standing. CAMP, 451 F.3d at 1269. A plaintiff has standing to bring a claim when the injury is “‘imminent— not abstract, hypothetical, or conjectural,’ or when application of the challenged statute is likely, or there is a credible threat of application.” America’s Health Ins. Plans v. Hudgens, No. 13-10349, 2014 WL 563604, at *4 (11th Cir. Feb. 14, 2014) (internal citations and quotation marks omitted). The Atlanta Plaintiffs assert that sometime in 2014, the Atlanta Archdiocese will be unable to absorb the cost
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increases of the Atlanta Plan and when it does it will have to adjust the amount of its employer contributions. When these adjustments are made, CENGI and Catholic Charities will be required to comply with the contraceptive mandate. Even if the Atlanta Plaintiffs were not suffering an economic injury-in-fact, an injury-in-fact is imminent. Id.
The Court finds that there is a sufficient nexus between the claimed, or imminent, injury-in-fact, and the requirement to provide a certification form to confer standing on the Atlanta Plaintiffs. Put another way, the economic losses here constitute an actual or imminent injury-in-fact, causally connected to the conduct Plaintiffs challenge in this action and the injury alleged is likely to be redressed by a favorable outcome in this action. CAMP, 451 F.3d at 1269.
The Atlanta Archdiocese also provides insurance for the employees of CENGI and Catholic Charities through the Atlanta Plan. The Plaintiffs allege that the Atlanta Archdiocese must either sponsor a health care plan that provides contraceptive coverage or expel its non-exempt affiliates from the Atlanta Plan. The Court finds that these allegations are also sufficient to confer standing in this action. See Roman Catholic Archdiocese of New York v. Sebelius, No. 12 Civ 2542(BMC), 2013 WL 6579764, at *7 (E.D.N.Y. Dec. 16, 2013).
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In other church plan cases, the Government has argued that its authority to penalize a TPA that refuses to provide coverage for preventive services derives from ERISA. Self-insured health care plans such as the Atlanta Plan and the Savannah Plan, however, are exempt from the requirements of ERISA because they are “church plans.” 29 U.S.C. § 1003(b)(2). The Government has thus claimed in these other church plan cases that it does not have authority to force a TPA to provide contraceptive services if the TPA refuses to do so. This is so, the Government has asserted, even though the Final Rules by their terms apply equally to all TPAs, and irrespective of whether they are “church plans.” In these other cases, and in this one, the Government does not assert that it will not enforce the requirement imposed on a non-exempt entity to self-certify and provide the certification form to the TPA.
The upshot of the Government’s argument in these other church plan cases essentially is that it “can neither require the [TPA] of a church plan to end its contractual relationship for failing to assume responsibility for contraceptive services coverage nor penalize the [TPA] that assumes the responsibility if it fails to actually provide that coverage.” Roman Catholic Archbishop of Washington v. Sebelius, 2013 WL 6729515, at *25-26. The Final Rules, however, by their terms state that if the TPA agrees to enter into a contractual relationship with a
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self-insured plan after an eligible organization provides the TPA with a selfcertification form, the TPA must provide or arrange for separate payments for preventive services. 29 C.F.R. § 2590.715-2713(A)(b)(1) (emphasis added). If the TPA declines to provide the required coverage, the regulations require a selfinsured plan to find a TPA that is able and willing to provide the mandated preventive services. In Roman Catholic Archbishop of Washington, the Government admitted that the regulations impose an additional burden on a selfinsured plan to find a TPA that provides coverage for preventive care if its current TPA refuses to do so. 2013 WL 6729515, at *21 n.19.24 The Government now claims that self-insured church plans cannot be compelled to find another TPA if their current TPA refuses to provide contraceptive coverage even though the written regulations apply equally to all self-insured plans regardless of whether the plans are sponsored by a church. See 29 C.F.R. § 2590.715-2713(A)(b).25
24 The district court observed that “the regulations do not spell this out explicitly, but both parties agree that this is what they will entail.” Roman Catholic Archbishop of Washington, 2013 WL 6729515, at *21 n.19. 25 The Government’s argument appears to be that a government imposed obligation may be ignored by a citizen if there is no mechanism for the government to enforce compliance with the written regulations. The Government also appears to claim that a legal obligation is a not real one if it cannot be enforced. The Court rejects both of these suggestions.
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The Government managed to persuade one district court that execution of the self-certification form is inconsequential and does not result in an injury-in-fact for the purposes of Article III standing because a church plan’s TPA will not provide contraceptive coverage, or can ignore without consequence, the requirement to provide contraceptive coverage. Roman Catholic Archbishop of Washington, 2013 WL 6729515, at *26-27. The Government’s argument rests on the following flawed premises: (1) that the combined effect of all the regulations that require CENGI and Catholic Charities to execute a self-certification form cannot be interpreted as rendering the Plaintiffs complicit in a scheme to provide products and services that they deem offensive to their religious beliefs; and (2) that the TPA of a church plan will not provide coverage for artificial contraceptives or sterilization under any circumstances or will not be subject to any enforcement risk for not doing so.
The first prong of this premise ignores that CENGI and Catholic Charities are required to execute, and deliver to a TPA, a self-certification form that they believe violates their sincerely held religious beliefs, and if they do not provide the certification form to their TPA, oppressive penalties will be imposed on them by the Government. These undisputed facts alone are sufficient to confer standing under federal law. Georgia Latino Alliance for Human Rights v. Governor of
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Georgia, 691 F.3d 1250, 1257–58 (11th Cir. 2012) (noting that in “a preenforcement, constitutional challenge to a state statute, the injury requirement may be satisfied by establishing ‘a realistic danger of sustaining direct injury as a result of the statute’s operation or enforcement.’”) (citations omitted); see also Roman Catholic Archdiocese of New York, 2013 WL 6579764, at *7 (finding that the church plan plaintiffs had Article III standing because there was no dispute that the non-exempt plaintiffs were required to “either comply with the Mandate and provide the objectionable coverage or self-certify that they qualify for the accommodation.”); accord Michigan Catholic Conference v. Sebelius, No. 1:13CV-1247, 2013 WL 6838707, at *4 (W.D. Mich. Dec. 27, 2013) (ruling that the Government’s argument regarding the injury-in-fact requirement for standing is flawed because the Government ignores plaintiffs’ religious objection to selfcertify and deliver the form to their TPA).
The second prong of the Government’s argument is based on the assumption that a church plan’s TPA will not provide coverage for contraceptive services.26 While wishing does not always make it so, the Government here has not taken a position on whether Meritain Health, the TPA of the Atlanta Plan and 26 In Roman Catholic Archbishop of Washington, the district court credited the Government’s assumption and “inferred” that a church plan’s TPA would decline to provide coverage. 2013 WL 6729515, at *25-26 n.22.
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the Savannah Plan, would provide coverage for artificial contraceptives upon receiving a self-certification form from CENGI and Catholic Charities. The Government’s argument addressed in other church plan cases does not apply here.
On the record in this matter, there is no basis to accept the Government’s assumption that a church plan TPA will not provide coverage for artificial contraceptive coverage and here the Government has not, to this point, suggested that Meritain Health will decline to provide coverage for products and services that are offensive to Plaintiffs’ religious beliefs. Interestingly, and maybe the reason the Government has abandoned its argument that “no church plan TPA will provide contraceptive coverage” is the opinion in Reaching Souls Int’l, Inc. v. Sebelius. In Reaching Souls, the court noted that Highmark—the TPA for the largest church plan in the country—adopted a plan to carry out the accommodation and provide contraceptive coverage. No. 5:13-cv-1092-D, 2013 WL 6804259, at *7 (W.D. Okla. Dec. 20, 2013). It is, at the core, irrelevant whether the Government has the authority to enforce the contraceptive mandate against a TPA which undertakes to provide coverage for preventive care, and there is no legitimate basis to speculate that the TPA will not provide coverage offensive to the Plaintiffs here. That a TPA of a church plan may voluntarily comply with the contraceptive mandate and ultimately provide contraceptive services underscores
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the legitimacy and reality of Plaintiffs’ concern that the self-certification form causes them to be complicit in a scheme to provide contraceptive services, devices and products that violate their longstanding and deeply-held religious beliefs.27
The Plaintiffs have sufficiently alleged a judicially cognizable injury, which is causally related to the burdens imposed by the Government’s Final Rules, and an injunction issued by the Court that bars the Government from enforcing the contraceptive mandate would redress the Plaintiffs’ alleged injury. CAMP, 451 F.3d at 1269. The Court concludes that Plaintiffs have standing to bring their RFRA claim in this action.
27 In Reaching Souls, the Government conceded that the regulations reward TPAs that agree to provide contraceptive services by offering full reimbursement plus 10%, but only if the TPA receives the self-certification form. Dec. 16, 2013 Hrn’g Tr. at 96:15-18, No. 5:13-cv-1092-D, 2013 WL 6804259. Considering Highmark’s decision to provide coverage, it is inconsistent with logic and common sense to assume that Meritain Health, a commercial subsidiary of one of the largest insurance companies in the United States, will refuse to provide contraceptive coverage under all circumstances and decline the 10% premium paid by the Government. Logic and common sense support that the Government’s promise to pay a 10% premium on top of the TPA’s coverage costs provides a strong and perhaps irresistible commercial incentive for the TPA to voluntarily enact plans to carry out the accommodation and provide contraceptive coverage that is required to benefit from the 10% premium award. Highmark’s decision also discredits the inference that the district court adopted in Roman Catholic Archbishop of Washington.
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2. Free Exercise Clause The Free Exercise Clause of the federal constitution “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Smith, 494 U.S. at 879 (internal citations and quotation marks omitted). Generally applicable and neutral laws that incidentally burden religious exercise are not subject to strict scrutiny under the Free Exercise Clause. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993). A neutral and generally applicable law needs to be justified only by a rational basis, under which it is presumed constitutional, and the plaintiff bears the burden to show that the law is not rationally related to a legitimate government interest. Keeton v. Anderson-Wiley, 664 F.3d 865, 879-80 (11th Cir. 2011). A law is not neutral if “the object of [the] law is to infringe upon or restrict practices because of their religious motivation.” Id. (quoting Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 520). A facially neutral law constitutes a religious “gerrymander” if religious practice is singled out for discriminatory treatment, and the object of the law is “the suppression of religion.” Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward Cnty., 450 F.3d 1295, 1309 (11th Cir. 2006).
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A law is not generally applicable if the government selectively imposes burdens “‘only on conduct motivated by religious belief.’” Id. (quoting Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 544-45) (emphasis added). General applicability does not require regulations to be universally applicable. See Gillette v. United States, 401 U.S. 437 (1971); see also Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 542-43 (observing that “all laws are selective to some extent . . . [but] inequality results when a legislature decides that the government interests it seeks to advance are worthy of being pursued only against conduct with a religious motivation.”). Specific exemptions to a law that are equally available to the adherents of a religious belief do not affect the law’s general applicability. Ungar v. New York City Hous. Autho., 363 F. App’x 53, 56 (2d Cir. 2010).
It is not disputed that the contraceptive mandate is neutral on its face. Plaintiffs allege that the Government enacted the regulations as “part of a conscious political strategy to marginalize Plaintiffs’ religious views on contraception by holding them up for ridicule on the national stage.” Pls.’ Mot. for Prelim. Inj. at 33. To support this allegation, Plaintiffs refer to cherry-picked statements made by Defendant Sebelius and the chief sponsor of a California contraception statute. Plaintiffs also charge the IOM committee that drafted the accommodation with unsupported allegations of invidious discrimination and anti-
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Catholic bias because the committee heard from “pro-choice” groups “without inviting any input from groups that oppose government-mandated coverage for abortion, contraception, and sterilization.” PRDSMF at 4-5. The Plaintiffs argue that 85% of employer health plans already provide contraceptive coverage, and contraceptive coverage for the remaining 15% is cost-neutral, so the remaining “‘gap’” must be “due largely to employers motivated by moral and religious concerns.” Pls. Mot. Summ. J. at 42. The Plaintiffs thus infer that the Government’s sole purpose in enacting the contraceptive mandate was “to squelch the small number of religious holdouts.” Id.
Plaintiffs, however, do not offer any evidence to show that the Final Rules were directly modeled on the California contraception law. The Final Rules were “informed by the existing practices of some issuers and religious organizations in the 28 States where the contraception coverage requirements already exist, including Hawaii.” 77 Fed. Reg. at 8,728. That the Government examined the practices of religious organizations in 28 states across the country during the rulemaking process also shows that the Government considered the views of those opposed to the contraceptive mandate. The Plaintiffs’ allegations of bias and prejudice against the IOM committee are also insufficient to demonstrate hostility towards Catholicism. The IOM committee’s hearings were open to the public and
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all individuals and organizations were free to submit written comments as they usually are whenever the Government drafts regulations that enact a complex statutory scheme. DRPSMF at 5-6. The fact that the IOM committee heard from “pro-choice” groups does not necessarily bear, in whole or in part, on the committee members’ personal beliefs.
Plaintiffs’ argument that the Government’s sole purpose in enacting the contraceptive mandate was “to squelch the small number of religious holdouts,” which is based on the fact that 85% of employer plans already provide contraception, and contraceptive coverage for the remaining 15% is cost-neutral, misses the point. The Plaintiffs’ argument requires the Court to juxtapose inference upon inference, and it is based on a misunderstanding of how the contraceptive mandate works. Employers who already provide contraceptive coverage are now required to provide such coverage without cost-sharing, whereas they were not required to provide any coverage at all in the past, and there were no controls on cost-sharing. The contraceptive mandate imposes new obligations on employers that provided contraceptive coverage in the past as well.
Plaintiffs’ reference to cost-neutrality also does not make sense. The Government’s cost-neutrality argument supposes that the cost of providing contraceptive coverage would be offset by the costs from “improvements in
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women’s health, healthier timing and spacing of pregnancies, and fewer unplanned pregnancies.” 78 Fed. Reg. at 39, 877. Whether the Government’s cost-neutrality hypothesis is credible, and whether issuers required to provide contraceptive coverage who did not provide it in the past agree with the Government’s hypothesis, currently is unknown. Plaintiffs assume, without the support of any evidence, that (1) 15% of all employer health plans, with the exception of “religious holdouts,” did not provide contraceptive coverage in the past only due to economic reasons, (2) every employer who falls in the remaining 15% of all employer health plans will now not have qualms with providing contraceptive coverage because of cost-neutrality, and (3) the remaining “‘gap’” may be “due largely to employers motivated by moral and religious concerns.” The Plaintiffs do not present any evidence to support these assumptions or the syllogistic reasoning that purports to support them.
Plaintiffs next point to Defendant Sebelius’s statement that “we are in a war” without explaining the context in which the statement was made. Even when read in context, the speech from which the statement is taken is, at most, a partisan attack on her political opponents in Congress. Defendant Sebelius’s statement that “forty percent of unplanned pregnancies end in those women seeking abortions,” and the rhetorical question she posed “wouldn’t you think that people who want to
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reduce the number of abortions would champion the cause of widely available, widely affordable contraceptive services?” may nor may not be “insensitive” depending on one’s perspective and political disposition. See Roman Catholic Archbishop of Washington, 2013 WL 6729515, at *29 n.30. The statements, as a whole, do not evidence an overt discriminatory intent or open display of prejudice. See Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 540-42. They appear to be what we often see today – political hyperbole, which is not germane to the legal analysis required here.
The anecdotal evidence presented by the Plaintiffs lacks legal force and it is based, at most, on Plaintiffs’ claims of the subjective intent of the drafters of the Final Rules, and does not evidence the practical effects of the challenged regulations. In Midrash, the Eleventh Circuit explained that Lukumi’s inquiry into a law’s neutrality does not turn on whether the drafters exhibited an “invidious intent in enacting the law.” 366 F.3d at 1234 n.16; see also Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 558 (observing that the “the First Amendment does not refer to the purposes for which legislators enact laws, but to the effects of the laws enacted . . . ”) (Scalia, J., concurring in part and concurring in the judgment); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47 (1986); United States v. O’Brien, 391 U.S. 367, 383 (1968) (refusing to consider the motives of lawmakers
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because “it is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit motive.”).28
There is no evidence that the contraceptive mandate constitutes a religious “gerrymander.” This is especially true considering that the only permanent exemption to the requirement to provide, pay, arrange or refer for contraception coverage rests with religious institutions like the Atlanta Archdiocese and the Savannah Diocese. The Government argues that it designed the accommodation to minimize the burdens placed on the non-exempt Plaintiffs’ religious exercise even though the Government failed to meet RFRA’s heavier burden to justify the regulations based on a compelling state interest.
This is not a case where the “pattern of exemptions [is carefully designed] to parallel the pattern of narrow prohibitions” targeted at Plaintiffs’ religious beliefs. Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 537. The exemption for grandfathered plans has a limited duration and it applies equally to religious 28 Plaintiffs rely on United States v. O’Brien to point out that Defendants’ “selfserving selection” of statements made by the sponsor of the Weldon Amendment does not “provide evidentiary support for the underlying factual statement.” PRDSMF at 46. Yet, Plaintiffs evade the principle of constitutional law established in O’Brien with respect to their own “self-serving selection” of statements made by Defendant Sebelius and the chief sponsor of a California contraception statute.
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employers and non-religious employers. The exemption for small businesses applies to religious and non-religious employers alike, and small employers that offer health care coverage are required to provide contraceptive coverage. Plaintiffs have failed to show that the contraceptive mandate is not neutral.
Plaintiffs argue that the contraceptive mandate is not generally applicable because it grants exemptions. Exemptions, even if there are many, do not affect the contraceptive mandate’s general applicability. The Plaintiffs have failed to show that the burdens of the contraceptive mandate are imposed only on them, and the categorized exemptions to the contraceptive mandate are equally available to the Plaintiffs on the same terms. See Primera, 450 F.3d at 1295; Ungar, 363 F. App’x at 56.
The Court concludes that Plaintiffs have failed to show that the contraceptive mandate is not rationally related to the Government’s claimed legitimate interest in increasing women’s access to what the Government characterizes as preventive care. Plaintiffs’ Motion for Summary Judgment on their Free Exercise Clause claim is required to be denied.
3. Compelled Speech Plaintiffs allege that the contraceptive mandate violates their free speech rights because it compels them to facilitate counseling related to abortion-inducing
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products, contraception and sterilization procedures. The First Amendment prohibits the Government from “telling people what
they must say.” Rumsfeld v. Forum for Academic and Inst. Rights, Inc. (FAIR), 547 U.S. 47, 61 (2006). The First Amendment does not allow the Government to “force one speaker to host or accommodate another speaker’s message.” Id. at 63 (internal citations omitted). The Supreme Court, however, has found compelledspeech violations only when “the complaining speaker’s own message [is] affected by the speech it was forced to accommodate.” Id.; see also Hurley v. IrishAmerican Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995) (holding that the State violated the parade organizers’ free speech rights by compelling them to “include among the marchers a group imparting a message the organizers do not wish to convey.”); Pacific Gas and Elec. Co. v. Pub. Util. Comm’n of California, 475 U.S. 1, 20-21 (1986) (holding that the forced inclusion of a third party’s newsletter in a utility company’s billing envelope violated the First Amendment because the newsletter interfered with the utility’s own message). The complaining speaker’s message is affected by hosting a third party’s speech when there is a risk that the third party’s objectionable message may be imputed to the complaining speaker. FAIR, 547 U.S. at 63; Hurley, 515 U.S. at 575.
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The First Amendment protects inherently expressive conduct. Texas v. Johnson, 491 U.S. 397, 406 (1989). In the absence of inherent expressiveness, compelled speech that is incidental to the regulation of conduct does not infringe the First Amendment. FAIR, 547 U.S. at 62.
The contraceptive mandate requires a health plan to provide patient education and counseling for all women with reproductive capacity. Even if the Court assumes that education and counseling are intended to encourage the use of contraceptive services, the mere act of authorizing a TPA to provide coverage for counseling related to contraception does not require the Plaintiffs to say anything.29 Plaintiffs also do not, and cannot, claim that providing health insurance or contraceptive coverage is inherently expressive. See id. at 64 (rejecting association of law schools’ argument that allowing military recruiters on campus is inherently expressive because recruiting “lacks the expressive quality of a parade, a newsletter, or the editorial page of a newspaper . . . ”).
To the extent that the requirement to provide or facilitate education and counseling compels any speech, the speech is incidental to the regulation of
29 The Final Rules do not regulate the content of a patient’s communications with her physician. The plain terms of the Final Rules are viewpoint neutral, but the Plaintiffs insist that the counseling is intended to encourage the use of artificial contraceptives.
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conduct, which does not infringe the Free Speech Clause. The Court also finds that there is no credible basis to say that a doctor’s message regarding whether to use artificial contraceptives may be imputed to the Plaintiffs given their steadfast and longstanding opposition to contraception. Plaintiffs remain free to voice their opposition to the use of contraceptive services as they see fit. See id. at 65 (holding that “nothing about recruiting suggests that law schools agree with any speech by recruiters and nothing in the Solomon Amendment restricts what the law schools may say about the military’s policies.”).30
Plaintiffs contend that the certification form compels them to engage in speech that “triggers provision of the objectionable products and services, and deprives them of the freedom to speak on the issue of abortion and contraception on their own terms, outside the confines of the Government’s regulatory scheme.” Pls. Mot. for Prelim. Inj. at 35. To support this contention, Plaintiffs rely on the Supreme Court’s decisions in Arizona Free Enter. Club’s Freedom Club PAC v. Bennet, — U.S. —, 131 S. Ct. 2806 (2011) and Agency for Int’l Dev. v. Alliance for Open Society Int’l, Inc., — U.S. —, 133 S. Ct. 2321 (2013). Plaintiffs misapply the holdings in Bennet and Agency for Int’l Dev.. 30 There appears to be no prohibition that constrains the Plaintiffs from counseling against the use of contraceptive products or services, including for religious or moral reasons.
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In Bennet, the majority found that Arizona’s candidate matching funds process substantially burdened a political candidate’s speech without a compelling interest, in violation of the First Amendment. 131 S. Ct. at 2813. Under Arizona law, a publicly-financed political candidate was entitled to matching funds from the State for every dollar spent by an opposing, privately-funded candidate. Id. The Arizona law also entitled the publicly-financed political candidate to matching funds from the State for every dollar spent by independent expenditure groups on behalf of the privately-financed candidate (or in opposition to the publiclyfinanced candidate). Id. A majority of the Supreme Court concluded that if a privately-financed candidate or an independent expenditure group engaged in political speech by spending campaign funds in excess of the initial funds available to a publicly-financed candidate, the State penalized the privately-financed candidate’s speech with a dollar for dollar cash subsidy to his publicly-financed opponent. Id. at 2818. In the majority’s view, the cash subsidy given by the State to the publicly-financed candidate “impose[d] an unprecedented penalty on any candidate who robustly exercise[d] [his] First Amendment rights.” Id. (citations and quotation marks omitted). Here, the self-certification form does not penalize or inhibit any person’s speech. Plaintiffs do not dispute that the contents of the self-certification form are consistent with their beliefs even if they believe that the
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form makes them complicit in a scheme to provide contraceptive products and services. The form does not require the Plaintiffs to adopt a particular belief or endorse a message with which they disagree.
For these reasons, Plaintiffs’ reliance on Agency for Int’l Dev. is also misplaced. In that case, the HHS required nongovernmental organizations that received funds from Congress to eradicate HIV/AIDS to state, in an award document, their opposition to prostitution and sex trafficking. 133 S. Ct. at 2326. The plaintiffs argued that the funding condition required them “to censor their privately funded discussions in publications, at conferences, and in other forums about how best to prevent the spread of HIV/AIDS among prostitutes.” Id. The Supreme Court held that the regulations required the Plaintiffs to “pledge allegiance to the Government’s policy of eradicating prostitution” and compelled “as a condition of federal funding the affirmation of a belief that by its nature cannot be confined within the scope of the Government program. In so doing, it violate[d] the First Amendment . . . .” Id. at 2332. The self-certification form does not require the Plaintiffs to “censor their discussions.” Id. at 2326. It also does not require the Plaintiffs to “pledge allegiance to the Government’s policy” of increasing access to contraceptive products and services. Id. at 2332. The compulsion to fill out a form and express statements that are consistent with
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Plaintiffs’ beliefs is merely incidental to the regulation of conduct—the conduct at issue here is the provision of contraceptive coverage, which is not inherently expressive.
Plaintiffs have failed to show that the contraceptive mandate or the accommodation compels them to speak in violation of the Free Speech Clause. Plaintiffs’ Motion for Summary Judgment regarding their Compelled Speech claim is required to be denied.
4. “Gag-Order”31 29 C.F.R. § 2590.715-2713(A)(b)(1)(iii) provides that once an eligible organization self-certifies and delivers the certification form to its TPA, “the eligible organization must not, directly or indirectly, seek to interfere with a [TPA’s] arrangements to provide or arrange separate payments for contraceptive services for participants or beneficiaries, and must not, directly or indirectly, seek to influence the [TPA’s] decision to make any such arrangements.” (emphasis added). “Above all else, the First Amendment means that government has no power 31 This section of the Court’s order applies only to CENGI and Catholic Charities. The Diocesan Plaintiffs cannot state a First Amendment claim because they are entirely exempt from the ACA, and the challenged restriction on speech applies only to “eligible organizations” that are required to self-certify and deliver the certification form to their TPA.
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to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Dep’t of the City of Chicago v. Mosley, 408 U.S. 92, 95 (1970). “As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content-based.” Turner Broad. Sys. Inc. v. Federal Commc’n Comm’n, 512 U.S. 622, 643 (1994). “Content-based regulations are presumptively invalid.” R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992). Content-based restrictions are subject to strict scrutiny, and the Government must show that the regulation furthers a compelling interest that is narrowly tailored to achieve that interest. Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1258 (11th Cir. 2005).
The Court finds that the second half of 29 C.F.R. § 2590.7152713(A)(b)(1)(iii) is a presumptively invalid, content-based restriction on the nonexempt Plaintiffs’ right to speak. The Government has imposed a blanket ban on CENGI and Catholic Charities prohibiting them from a wide spectrum of communications, including merely advising or persuading a TPA to not provide contraceptive coverage. The Government has not offered any explanation for justifying the infringement of the non-exempt Plaintiffs’ freedom of speech. The Government chooses to repeatedly state that the regulation only prohibits an eligible organization from interfering with a TPA’s decision to provide
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contraception coverage through threats or economic coercion. The First Amendment does not protect economic threats that interfere with the rights of others. NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969).32 Plaintiffs’ free speech claim is based on the sweeping ban imposed by the Government that prevents them from “directly or indirectly influencing” their TPA not to provide contraceptive coverage. The Government does not offer any reasonable explanation for placing such a blanket, bright-line content-based restriction on Plaintiffs’ freedom of speech.
The Government offers the tepid defense of the ban by pointing to another regulation, which states that “nothing in these final regulations prohibits an eligible organization from expressing its opposition to the use of contraception.” 78 Fed. Reg. at 39,880 n.41. The reliance on this regulatory footnote is, at best, misleading. 29 C.F.R. § 2590.715-2713(A)(b)(1)(iii) explicitly prohibits the nonexempt Plaintiffs from expressing their opposition to the use of contraception to their TPA. This directly violates the Plaintiffs’ free speech rights and there is no justification for it. Plaintiffs are entitled to summary judgment on their claim that the Final Rules unconstitutionally restrict their freedom of speech. 32 Plaintiffs, however, do not challenge the first half of 29 C.F.R. § 2590.7152713(A)(b)(1)(iii), which prohibits them from placing economic pressure on the TPA.
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5. Establishment Clause Plaintiffs argue that the religious employer exemption in the Final Rules violates the Establishment Clause because the Government grants an exception to “houses of worship,” “integrated auxiliaries,” and “religious orders,” but does not exempt other religious organizations like CENGI and Catholic Charities that “exercise their religion” through education and charity. Pls.’ Reply in support of Motion for Summ. J. at 25. The Establishment Clause to the First Amendment provides that “Congress shall make no law respecting an establishment of religion.” U.S. Const. amend. I. The “clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244 (1982).
The religious employer exemption applies equally to all denominations and religions that oppose contraception. Line drawing by the Government based on the structure and purpose of religious organizations is permissible under the Establishment Clause. Walz v. Tax Comm’n of the City of N.Y., 397 U.S. 664, 672-73 (1970) (upholding a religious exemption for property taxes because the exemption did not “single[] out one particular church or religious group or even churches as such; rather it has granted [an] exemption to all houses of religious worship within a broad class of property owned by non-profit, quasi public
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corporations.”); Droz v. Comm’r of Internal Revenue Serv., 48 F.3d 1120, 1124 (9th Cir. 1995) (upholding tax exemption because the Government can permissibly distinguish among individuals who share identical religious beliefs).33
Plaintiffs assert that CENGI and Catholic Charities deserve special treatment because they “exercise their religion” through education and charity. All religious denominations, Catholic and non-Catholic alike, have educational and charitable arms. The line drawn here is based on the structure and purpose of the religious organization, which is permissible under the Establishment Clause, and the religious employer exemption does not make distinctions based on religious affiliation. It is available to all religions. Plaintiffs have failed to state a cognizable claim based on the Establishment Clause, and their Motion for Summary Judgment on the Establishment Clause claim is denied. The Government’s Motion for Summary Judgment regarding the Plaintiffs’
33 Plaintiffs claim that in Colorado Christian Univ. v. Weaver, 543 F.3d 1245 (10th Cir. 2008), the Tenth Circuit struck down a statute that discriminated against religious organizations based on their organization and purpose. It did not. In Weaver, the statute discriminated among religious denominations because it favored Catholic and Methodist schools, but disfavored an evangelical Protestant university and a Buddhist institution. Id. at 1258. The Tenth Circuit concluded that the statute facially discriminated among religious denominations by providing scholarships to some sectarian schools, and declining to provide scholarships to schools that the Government deemed as “pervasively sectarian.” Id.
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Establishment Clause claim is granted.34
6. Internal Church Governance
Plaintiffs argue that the contraceptive mandate violates the Religion Clauses
of the First Amendment because it “splits” the Catholic Church into two different
entities—one entity exempt from the mandate and the other entity compelled to
facilitate contraceptive coverage through the accommodation. Plaintiffs also allege
that the contraceptive mandate interferes with the internal decisions of the Catholic
Church because it prevents the Atlanta Archdiocese and the Savannah Diocese
from supervising CENGI and Catholic Charities. According to the Plaintiffs, if
CENGI and Catholic Charities are required to comply with the contraceptive
mandate, the Diocesan Plaintiffs cannot ensure that all of their affiliates are
provided with health care plans that are consistent with Catholic beliefs. 34 In their Second Amended Complaint, Plaintiffs also alleged that the religious employer exemption violates the Establishment Clause because the definition of a religious employer in the Final Rules is based on an intrusive 14-factor test applied by the Internal Revenue Service (“IRS”). The Government moved to dismiss this claim in its Motion to Dismiss, or in the alternative, for Summary Judgment. Plaintiffs did not oppose the Government’s Motion. In opposing a motion for summary judgment, a “‘party may not rely on his pleadings to avoid judgment against him.’” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (quoting Ryan v. Int’l Union of Operating Eng’rs, Local 675 (11th Cir. 1990)). “Grounds alleged in the complaint but not relied upon in summary judgment are deemed abandoned.” Id. (internal citations omitted). Here, Plaintiffs abandoned their claim related to the 14-factor test applied by the IRS. Defendants are thus entitled to summary judgment on Plaintiffs’ claims regarding the 14-factor test applied by the IRS.
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The Court agrees with the Government that this claim restates the Diocesan Plaintiffs’ RFRA claim, and the Court is not persuaded by it for the reasons stated in Section II(B)(1)(i)(b)(iii) of this Order. See also Roman Catholic Archdiocese of New York, 2013 WL 6579764, at *20. The Religion Clauses of the First Amendment prohibit the Government from interfering with the internal decisions of a Church regarding ecclesiastical matters.35 The Plaintiffs do not provide authority to support their claim that the decisions of a Church regarding its health care plan are protected by the Religion Clauses. Plaintiffs do not provide such authority because churches do not have an unfettered right to be free from government interference.
The Religion Clauses protect from government interference in ecclesiastical matters such as the freedom to select clergy, choose a bishop, and the resolution of disputes between different factions of a church over control of property. Hosanna-Tabor, 132 S. Ct. at 704-05. Plaintiffs’ reliance on Hossana-Tabor to support their novel claims of interference in internal church decisions is misplaced. 35 The Religion Clauses of the First Amendment provide that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const. amend. I. “By forbidding the ‘establishment of religion’ and guaranteeing the ‘free exercise thereof,’ the Religion Clauses ensured that the new Federal Government—unlike the English Crown—would have no role in filling ecclesiastical offices.” Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Emp’t Opportunity Comm’n, — U.S. —, 132 S. Ct. 694, 703 (2013).
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In Hossana-Tabor, the Supreme Court explicitly limited its holding to bar a minister’s employment discrimination claim against a Church that terminated her. Id. at 710. The Supreme Court stated that “we express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers.” Id. The “ministerial exception” is a well-established principle of constitutional law that bars employment discrimination claims brought against religious institutions by its ministers. Gellington v. Christian Methodist Episcopal Church, Inc., 203 F.3d 1299, 1301-04 (11th Cir. 2000). It remains unclear whether such a wellestablished rule of law extends to a claim brought by a minister that falls outside the employment discrimination context. Hossana-Tabor cannot be extended to apply to novel theories of interference in church decisions when the boundaries of a well-established exception for ecclesiastical matters is itself an open question left for the future. The Court concludes that Plaintiffs’ Motion for Summary Judgment regarding their internal church governance claim is required to be denied.
7. Delegation of Authority Plaintiffs argue that the ACA unconstitutionally delegates legislative power to the HHS because the ACA does not establish any standards to “which the HHS must adhere in determining which products and services constitute “‘preventive
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care.’” Pls.’ Mot. for Summ. J. at 54. Congress may delegate its legislative authority to another branch of government, so long as Congress “lay[s] down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform.” Panama Refining Co. v. Ryan, 293 U.S. 388, 421 (1935). Congress has the power to delegate its authority to a federal agency under “broad general directives.” Mistretta v. United States, 488 U.S. 361, 372 (1989) (quoting Opp Cotton Mills, Inc. v. Administrator, Wage and Hour Div. of Dept. of Labor, 312 U.S. 126, 145 (1941) (“In an increasingly complex society Congress obviously could not perform its functions if it were obliged to find all the facts subsidiary to the basic conclusions which support the defined legislative policy.”)) (emphasis added).
The Women’s Health Amendment of the ACA required the HRSA to provide comprehensive guidelines regarding preventive care and screenings for women. 42 U.S.C. § 300gg-13(a)(4). This “broad general directive” is indistinguishable from the delegations of authority previously upheld by the Supreme Court. In Yakus v. United States, 321 U.S. 414 (1944), the Supreme Court upheld congressional delegation to an agency to fix prices in a “fair and equitable manner,” and in Whitman v. American Trucking Ass’ns, Inc., 531 U.S. 457 (2001), the Supreme Court upheld congressional delegation to an agency to set
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standards “requisite to protect the public health.” Plaintiffs insist that the “mandate must fall” because the “purported standard
[in the ACA] supplies no ‘intelligible principle’ for determining what constitutes ‘preventive care’ in the first instance.” Pls.’ Reply in support of Pls.’ Mot. for Summ. J. at 26. This is a shallow claim that contradicts the Supreme Court’s decisions. See Whitman, 531 U.S. at 474 (explaining that “[but] even in sweeping regulatory schemes we have never demanded, as the Court of Appeals did here, that statutes provide a ‘determinate criterion’ for saying ‘how much [of the regulated harm] is too much.’”); see also Mistretta, 488 U.S. at 654; Opp Cotton Mills, Inc., 312 U.S. at 145. Plaintiffs’ proposed rule of law demands an exacting standard to be established for agency action that misconstrues the nondelegation doctrine. The Constitution does not require Congress to identify each element of its broad authority with the specificity that Plaintiffs demand. The true nature of Plaintiffs’ complaint is directed at jurisprudence related to the intelligible principle itself. The Court, therefore, denies the Plaintiffs’ Motion for Summary Judgment regarding the HRSA’s authority to draft recommendations concerning preventive care for women. The Defendants’ Motion for Summary Judgment on this claim is granted.
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8. Administrative Procedures Act Plaintiffs alleged in their Complaint that the contraceptive mandate and the accommodation violate the APA because they conflict with the Weldon Amendment. The Weldon Amendment provides that “[n]one of the funds made available in this Act may be made available to a Federal agency or program, or to a State or local government, if such agency, program or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(1), 125 Stat. 786, 1111 (2011). Plaintiffs did not raise this claim in their Motion for Summary Judgment. Defendants moved to dismiss, and in the alternative, moved for summary judgment on Plaintiffs’ APA claim. Plaintiffs did not respond to Defendants’ Motion to Dismiss, and in the alternative, for Summary Judgment on Plaintiffs’ APA claim. Defendants are entitled to summary judgment because Plaintiffs abandoned their APA claim. See Resolution Trust Corp., 43 F.3d at 599.
9. The Remaining Requirements for Injunctive Relief “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373
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(1976). A violation of the RFRA also establishes irreparable injury. Hobby Lobby, 723 F.3d at 1146. The Government’s interest in enforcing the contraceptive mandate against the non-exempt Plaintiffs does not outweigh the interests of the non-exempt Plaintiffs because the Government has not shown a compelling interest that is narrowly restricted to achieve its goals. A permanent injunction preserves the status quo whereas enforcement of the contraceptive mandate violates the non-exempt Plaintiffs’ statutory and constitutional rights. See Roman Catholic Archdiocese of New York, 2013 WL 6579764, at *21 (internal citations omitted). The public’s interest is best served by enjoining regulations that violate the RFRA and infringe on constitutional rights. Hobby Lobby, 723 F.3d at 1147. III. CONCLUSION
For the reasons discussed in this Order, the Court determines that the Government is enjoined from enforcing the contraceptive mandate and the Final Rules, including the requirement to execute a self-certification form, and deliver the form to a TPA, against CENGI and Catholic Charities because enforcement of the Final Rules would violate the RFRA. The Government also is enjoined from enforcing against CENGI and Catholic Charities the requirements of 29 C.F.R. § 2590.715-2713(A)(b)(1)(iii), which prohibits non-exempt organizations from
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seeking to influence their TPA’s decision regarding the provision of contraceptive products and services, because it is an unconstitutional, content-based restriction on CENGI’s and Catholic Charities’ right to the freedom of speech protected by the First Amendment.
Because the Atlanta Archdiocese and the Savannah Diocese are entirely exempt from the contraceptive mandate and the Final Rules, and the Government does not dispute that the Diocesan Plaintiffs are not required to comply with the requirement to execute a self-certification form and deliver the form to Meritain Health, it is unnecessary to separately enjoin enforcement of the contraceptive mandate and the Final Rules against the Diocesan Plaintiffs.36
Accordingly, IT IS HEREBY ORDERED that the Defendants are PERMANENTLY RESTRAINED and ENJOINED from enforcing the contraceptive mandate against Plaintiffs CENGI and Catholic Charities. IT IS FURTHER ORDERED that the Government is PERMANENTLY
36 The Savannah Diocese operates its schools and charitable mission within the Diocese, rather than through separate entities like CENGI and Catholic Charities. Because the Savannah Diocese is exempt from the contraceptive mandate and the requirements to comply with the Final Rules, it is unnecessary to separately enjoin enforcement of the contraceptive mandate and the Final Rules against these activities of the Savannah Diocese.
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RESTRAINED and ENJOINED from enforcing the requirement against CENGI and Catholic Charities to execute and deliver a self-certification form to their TPA.
IT IS FURTHER ORDERED that Plaintiff CENGI and Plaintiff Catholic Charities’ Motion for Summary Judgment is GRANTED in part and DENIED in part [78]. CENGI and Catholic Charities’ Motion for Summary Judgment on their RFRA claim is GRANTED. Summary Judgment on the claim that the accommodation violates the First Amendment because it places a content-based restriction on their freedom of speech is also GRANTED. The Motion for Summary Judgment on their remaining claims is DENIED.
IT IS FURTHER ORDERED that the Motion for Summary Judgment filed by Plaintiffs Atlanta Archdiocese, Savannah Diocese, Archbishop Gregory and Bishop Hartmayer is DENIED AS MOOT with respect to all claims, including claims based on the RFRA and the federal constitution, because, as the Government acknowledges, these Plaintiffs are exempt from the contraceptive mandate and the requirements of the accommodation [78].
IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss or, in the alternative, for Summary Judgment regarding the Plaintiffs’ claims based on the Establishment Clause, the APA, and the unconstitutional delegation of congressional authority is GRANTED [64].
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IT IS FURTHER ORDERED that Plaintiffs’ Motion for Preliminary Injunction is DENIED AS MOOT [57].
SO ORDERED this 26th day of March, 2014.
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 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

THE ROMAN CATHOLIC ARCHDIOCESE OF ATLANTA, et al.,

Plaintiffs,

v.

1:12-cv-03489-WSD

KATHLEEN SEBELIUS, in her official capacity as Secretary, United States Department of Health and Human Services, et al.,

Defendants.

OPINION AND ORDER This matter is before the Court on the Defendants’ Motion for Reconsideration and/or Clarification of Specific Issues regarding the Court’s March 26, 2014 Opinion and Order [109]. I. BACKGROUND On April 3, 2014, the Defendants moved to reconsider or clarify two specific issues regarding the Court’s March 26, 2014 Opinion and Order. First, the Defendants contend that the Court’s Order was incomplete because their Motion to Dismiss or, in the alternative, for Summary Judgment was granted only on the

Plaintiffs’ claims based on the Establishment Clause, the Administrative Procedures Act, and unconstitutional delegation of authority. Defendants request the Court to enter a final judgment in their favor on the Diocesan Plaintiffs’ Religious Freedom Restoration Act (“RFRA”) claim, and the Plaintiffs’ free exercise, compelled speech, and internal church governance claims. Defendants argue that in their Motion to Dismiss or, in the alternative, for Summary Judgment, they moved to dismiss the Plaintiffs’ Second Amended Complaint “in its entirety,” and requested the Court to grant them summary judgment on all claims raised in the Plaintiffs’ Second Amended Complaint. Defendants also contend that they incorporated by reference the arguments made in opposition to the Plaintiffs’ Motion for Preliminary Injunction into their Motion to Dismiss or, in the alternative, for Summary Judgment regarding the Plaintiffs’ RFRA, Free Exercise Clause, Free Speech Clause, and internal church governance claims.
Second, the Defendants move the Court to “revisit its RFRA analysis . . . and issue any further Order it considers appropriate” on the ground that the Court’s March 26, 2014 Opinion and Order “assumed” that the health plans operated and established by the Atlanta Archdiocese and the Savannah Diocese are “church plan[s].” Defendants argue that the term “church plan” is a term of art under ERISA, and “it is not the case that every health plan sponsored or established by a
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church or integrated auxiliary is a ‘church plan’ within the meaning of ERISA.” Defendants also argue that the Plaintiffs have not alleged that they “operate a ‘church plan,’ and it is for that reason that defendants did not make the sorts of arguments they have made in cases that do involve ‘church plans.’”
On April 15, 2014, Plaintiffs replied to the Defendants’ Motion for Reconsideration. Plaintiffs do not dispute that Defendants moved to dismiss or, in the alternative, for summary judgment, on all of the Plaintiffs’ claims and thus, they do not oppose the entry of a final judgment in favor of Defendants to the extent that the Court’s March 26, 2014 Opinion and Order determined that the Diocesan Plaintiffs’ RFRA claim, and the Plaintiffs’ free exercise, compelled speech, and internal church governance claims fail as a matter of law. Plaintiffs, however, oppose the Defendants’ Motion for Reconsideration regarding the claim that Plaintiffs do not have a “church plan.” Plaintiffs state that Defendants have offered no evidence to contest the Court’s conclusion that the health plans at issue are “church plans” within the meaning of ERISA, and Defendants’ speculative arguments on that issue are insufficient to grant a Motion for Reconsideration.
On April 23, 2014, Defendants replied to the Plaintiffs’ Response to the Motion for Reconsideration. In their Reply, Defendants insist that Plaintiffs’ response fails to demonstrate that the health plans in this case are “church plans”
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within the meaning of ERISA, and that “having set the terms of the dispute, plaintiffs cannot fault defendants for litigating this case within those terms, and now, for requesting that the Court decide this case within those same terms.” II. DISCUSSION
A. Legal Standard “A motion for reconsideration made after final judgment falls within the ambit of either Rule 59(e) (motion to alter or amend a judgment) or Rule 60(b) (motion for relief from judgment or order).” Region 8 Forest Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 806 n.5 (11th Cir. 1993). The Court does not reconsider its orders as a matter of routine practice. LR 7.2 E., NDGa. The Court’s Local Rules require the parties to file motions for reconsideration “within twenty-eight (28) days after entry of the order or judgment.” Id. Defendants seek reconsideration pursuant to Rule 59(e). Motions for reconsideration under Rule 59(e) are appropriate only where there is newlydiscovered evidence1 or a need to correct a manifest error of law or fact. See Hood
1 Evidence that could have been discovered and presented on the previously-filed motion is not newly discovered. See Arthur v. King, 500 F.3d 1335, 1343-44 (11th Cir. 2007); see also Mays v. U.S. Postal Serv., 122 F.3d 43, 46 (11th Cir. 1997) (“We join those circuits in holding that where a party attempts to introduce previously unsubmitted evidence on a motion to reconsider, the court should not grant the motion absent some showing that the evidence was not available during the pendency of the motion.”).
4

v. Perdue, 300 F. App’x 699, 700 (11th Cir. 2008) (citing Pres. Endangered Areas of Cobb’s History, Inc. v. U.S. Army Corps of Eng’rs, 916 F. Supp. 1557, 1560 (N.D. Ga. 1995), aff’d, 87 F.3d 1242 (11th Cir. 1996)); Arthur, 500 F.3d at 1343 (“The only grounds for granting [a Rule 59] motion are newly-discovered evidence or manifest errors of law or fact.”); Jersawitz v. People TV, 71 F. Supp. 2d 1330, 1344 (N.D. Ga. 1999).2
A motion for reconsideration should not be used to present the Court with arguments already heard and dismissed, or to offer new legal theories or evidence that could have been presented in the previously-filed motion. See Arthur, 500 F.3d at 1343; O’Neal v. Kennamer, 958 F.2d 1044, 1047 (11th Cir. 1992); Bryan v. Murphy, 246 F. Supp. 2d 1256, 1259 (N.D. Ga. 2003); see also Jones v. S. Pan Servs., 450 F. App’x 860, 863 (11th Cir. 2012) (“A motion to alter or amend a judgment cannot be used to relitigate old matters, raise arguments, or present evidence that could have been raised prior to the entry of judgment.”); Pres. Endangered Areas, 916 F. Supp. at 1560 (“A motion for reconsideration is not an opportunity for the moving party and their counsel to instruct the court on
2 Motions for reconsideration under Rule 60(b) are appropriate only where there is “mistake, inadvertence, surprise, or excusable neglect,” newly discovered evidence, fraud, a void judgment, or a judgment that has been satisfied or is no longer applicable. Fed. R. Civ. P. 60(b).
5

how the court ‘could have done it better’ the first time.”). Whether to grant a motion for reconsideration is within the sound discretion of the district court. See Region 8, 993 F.2d at 806.
B. Analysis There is no dispute that Defendants moved to dismiss or, in the alternative, for summary judgment on all claims raised in the Plaintiffs’ Second Amended Complaint. On September 12, 2013, the Court granted the Defendants’ unopposed Motion for Leave to File Excess Pages, and allowed the Defendants to file a 15page brief in support of their Motion and, in that brief, the Court allowed the Defendants to incorporate by reference their brief in opposition to Plaintiffs’ Motion for Preliminary Injunction. On the basis of these undisputed facts and because the Court’s March 26, 2014, Opinion and Order determined that Plaintiffs’ remaining claims failed as a matter of law, the Court grants the Defendants’ Motion to Dismiss or, in the alternative, for Summary Judgment on the Diocesan Plaintiffs’ RFRA claim, and the Plaintiffs’ Free Exercise, Compelled Speech, and internal church governance claims. The Defendants’ Motion for Reconsideration on this issue is granted. In the March 26, 2014 Opinion and Order, the Court found that the Plaintiffs had standing to pursue their claims due to several reasons, including the alleged
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economic losses sustained by the Atlanta Plan, the compulsion to execute and deliver a self-certification form to a third party administrator (“TPA”), and the risk of expulsion from the Atlanta Plan faced by CENGI and Catholic Charities. The Court also addressed and rejected the Defendants’ argument made in other cases that “church plans” do not have standing, noting that Plaintiffs have standing to pursue their claims regardless of whether their employees and their beneficiaries are covered by a health plan defined as a “church plan” within the meaning of ERISA.
As for the Court’s decision on the merits, in section II(B)(1)(i)(b)(ii) of the March 26, 2014 Opinion and Order, the Court found that the requirement imposed on CENGI and Catholic Charities to execute a self-certification form and deliver it to their TPA violated the RFRA for several reasons, finding that Plaintiffs had demonstrated that the self-certification form was an integral part of the Government’s contraceptive coverage scheme that created rights and responsibilities, and it is a Government imposed device that pressures the Plaintiffs into facilitating the contraceptive coverage to which they have sincerely held religious objections. That conclusion, which was based on the plain terms of the Final Rules and their operative effect, does not depend on the presence or absence of a “church plan.” The Court found that this analysis does not change even if the
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Government had argued, as it has in other cases, that it has no ERISA authority to require a “church plan” to contract with a TPA to provide contraceptive coverage or to compel a TPA to provide contraceptive coverage after the TPA agrees to enter into a contract with the Plaintiffs and receives the self-certification form. Because the Court’s substantive analysis of the RFRA claim raised by CENGI and Catholic Charities is not affected by whether the Atlanta Plan and Savannah Plan are “church plans” within the meaning of ERISA, the Defendants’ Motion for Reconsideration on this issue is required to be denied.
Although not necessary to the Court’s decision, the Court evaluates the Defendants’ argument that Plaintiffs did not allege that they operate and maintain ERISA defined “church plans.” Defendants do not dispute that the “Atlanta Archdiocese makes health insurance benefits available to its religious personnel, seminaries, and full-time employees through the Roman Catholic Archdiocese of Atlanta Group Health Plan . . .[,]” which provides benefits to nearly 1,530 employees and 1,070 dependants. Pls.’ Statement of Undisputed Material Facts at ¶ 1 (“PSMF”). Defendants also do not dispute that the “Savannah Diocese makes health insurance benefits available to its employees through the Roman Catholic Diocese of Savannah Group Health Care Plan.” PSMF at ¶ 11.
Section 1002(33)(A) of the Employment Retirement Security Act
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(“ERISA”) of 1974 defines the “term ‘church plan’ to mean a plan established and maintained . . . for its employees (or their beneficiaries) by a church or by a convention or association of churches which is exempt from tax under section 501 of Title 26.” 29 U.S.C. § 1002(33)(A) (2005). It is undisputed that the Atlanta Plan and the Savannah Plan meet the requirements of Section 1002(33)(A). There is also no dispute in this case that Catholic Charities and CENGI are “religious entities that are part of the Roman Catholic Church.” PSMF at ¶ 19. The employees of Catholic Charities and CENGI are thus deemed to be employees of the Archdiocese of Atlanta because these entities are “controlled by or associated with a church or convention or association of churches.” 29 U.S.C. § 1002(C)(ii)(iii). Given the Defendants’ concession that Catholic Charities and CENGI are “part of the Roman Catholic Church,” there is no dispute that these organizations are “controlled by or associated” with the Atlanta Archdiocese.3
Section 1002(33)(B) states that the term “church plan” does not include a
3 An organization is “associated” with a church within the meaning of ERISA if it shares “common religious bonds and convictions” with the church. Lown v. Continental Cas. Co., 238 F.3d 543, 548 (4th Cir. 2001). There can be no doubt that the Complaint and the PSMF are replete with instances that describe how Catholic Charities and CENGI share common religious bonds and convictions with the Atlanta Archdiocese. The Government does not dispute the allegations or the facts that describe the nature and purpose of CENGI and Catholic Charities as set out in the PSMF.
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plan (i) which is established and maintained primarily for the benefit of employees (or their beneficiaries) of such church or convention or association of churches who are employed in connection with one or more unrelated trades or business (within the meaning of section 513 of Title 26), or (ii) if less than substantially all of the individuals included in the plan are individuals . . . [,]” who are not employees of a church or employees of “an organization, whether a civil law corporation or otherwise, which is exempt from tax under Section 501 of Title 26 and which is controlled by or associated with a church or a convention or association of churches . . . ” 29 U.S.C. § 1002(33)(B); Id. § 1002(33)(C)(ii).
These exceptions do not apply here because there is no dispute that Catholic Charities and CENGI are charitable and educational entities that execute the Atlanta Archdiocese’s charitable and educational mission. Section 10002(33)(B)(i) thus does not apply, and there is no dispute that the employees of CENGI and Catholic Charities qualify as employees of the Roman Catholic Archdiocese of Atlanta within the meaning of ERISA. The Court notes that had it been necessary to do so, it would find that the undisputed facts sufficiently demonstrate that the Plaintiffs maintain and operate a “church plan” within the
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meaning of ERISA.4
If the Court accepted the Government’s argument that it should not consider
the health plans at issue as “church plans” because that characterization was not
used, the Final Rules impose on CENGI and Catholic Charities an obligation to
find immediately a TPA that provides contraceptive coverage if their existing TPA
refuses to do so. See 29 C.F.R. § 2590.713A(b)(1)-(4). These facts further support
the need to grant injunctive relief to the Plaintiffs.5 For the reasons stated above,
the Defendants’ Motion for Reconsideration on the ground that the Court should
4 The only difference between this case and other “church plan” cases is that some of the Plaintiffs in the other cases specifically alleged that the Archdiocese operates a self-insured health plan, which is “recognized under [ERISA] as a ‘church plan.’” Defs.’ Resp. to Pls.’ Statement of Material Facts at ¶ 2, Roman Catholic Archbishop of Washington v. Sebelius, No. 12-1441(ABJ), 2013 WL 6729515 (D.D.C. Dec. 20, 2013). The crux of the Defendants’ argument is that facts alleged in the Complaint, which support that a “church plan” is at issue must also specifically allege that the “church plan” is “governed by ERISA.” Because the Plaintiffs did not use the legal characterization and specifically allege that the health plans were “governed by ERISA,” the Complaint, in the Defendants’ view, failed to state that the health plans were “church plans” within the meaning of ERISA. Such an exacting pleading standard is contrary to the standards established by the Federal Rules of Civil Procedure. See F.R.C.P. 8(d)(1) (“each allegation must be simple, concise and direct. No technical form is required.”).
5 Even those few Courts that have found the self-certification requirement not to be a substantial burden under RFRA state that the obligation to find a TPA that provides contraceptive coverage if the existing TPA refuses to do so is a Government imposed compulsion that goes too far. See Roman Catholic Archbishop of Washington v. Sebelius, 2013 WL 6729515, at *22.
11

reevaluate its RFRA analysis is denied. III. CONCLUSION
Accordingly, for the foregoing reasons, IT IS HEREBY ORDERED that the Defendants’ Motion for Reconsideration is GRANTED in part and DENIED in part. It is GRANTED with respect to the Defendants’ request to enter a final judgment on the Diocesan Plaintiffs’ RFRA claim, and the Plaintiffs’ free exercise clause, compelled speech, and internal church governance claims. IT IS FURTHER ORDERED that the Defendants’ Motion to Dismiss or, in the alternative, for Summary Judgment [64] on the Diocesan Plaintiffs’ RFRA claim, and the Plaintiffs’ free exercise clause, compelled speech, and internal church governance claims is GRANTED.6 Defendants’ Motion for Reconsideration is DENIED with respect to the Defendants’ claim that the Court should reevaluate its RFRA analysis because Plaintiffs did not allege that they operate and maintain a “church plan” within the meaning of ERISA.
6 Given that the Court’s March 26, 2014 Opinion and Order granted the Plaintiffs’ Motion for Summary Judgment on the RFRA claim raised by Plaintiffs Catholic Charities and CENGI, and the Plaintiffs’ “gag-order” claim, the Defendants’ Motion to Dismiss, or in the alternative, for Summary Judgment on these claims is necessarily DENIED [64].
12

SO ORDERED this 30th day of May 2014. 13

 
 General Docket United States Court of Appeals for the Eleventh Circuit

Court of Appeals Docket #: 14-12890 Nature of Suit: 2440 Other Civil Rights The Roman Catholic Archdiocese, et al v. Sec, US Dept HHS, et al Appeal From: Northern District of Georgia
Fee Status: Fee Not Required

Docketed: 06/30/2014 Termed: 11/07/2017
Case Handler: Cohen, Julie F., CC
(404) 335-6170

Case Type Information: 1) U.S. Civil 2) U.S. Defendant - Non PLRA 3) -

Originating Court Information: District: 113E-1 : 1:12-cv-03489-WSD Civil Proceeding: William S. Duffey, Junior, U.S. District Judge Date Filed: 10/05/2012 Date NOA Filed: 05/23/2014

Prior Cases: None

Current Cases: Lead
Consolidated 14-12696 14-12890

Member
14-12890 14-13239

Start

End

02/18/2016 08/15/2014

THE ROMAN CATHOLIC ARCHDIOCESE OF ATLANTA, an association of churches and schools
Plaintiff - Appellee

Edward Kendrick Smith Direct: 404-5818343 [COR LD NTC Retained] Jones Day 1420 PEACHTREE ST NE STE 800 ATLANTA, GA 30309-3053
Jason Todd Burnette Direct: 404-581-

8724 [NTC Retained] Jones Day 1420 PEACHTREE ST NE STE 800 ATLANTA, GA 30309-3053
Stephen M. Forte Direct: 404-8153500 [NTC Retained] Smith Gambrell & Russell, LLP 1230 PEACHTREE ST STE 3100 ATLANTA, GA 30309
Brian Charles Lea Direct: 404-5818528 [COR NTC Retained] Jones Day Suite 800 1420 PEACHTREE ST NE STE 800 ATLANTA, GA 30309-3053
Janine Cone Metcalf Direct: 404-5818656 [COR NTC Retained] Jones Day 1420 PEACHTREE ST NE STE 800 ATLANTA, GA 30309-3053
David M. Monde Direct: 404-5818206

[NTC Retained] Jones Day 1420 PEACHTREE ST NE STE 800 ATLANTA, GA 30309-3053

WILTON D GREGORY, and his successors, Archbishop of the Roman Edward Kendrick

Catholic Archdiocese of Atlanta

Smith

Plaintiff - Appellee Direct: 404-581-

8343

[COR LD NTC

Retained]

(see above)

Jason Todd Burnette Direct: 404-5818724 [NTC Retained] (see above)

Stephen M. Forte Direct: 404-8153500 [NTC Retained] (see above)

Brian Charles Lea Direct: 404-5818528 [COR NTC Retained] (see above)

Janine Cone Metcalf Direct: 404-5818656 [COR NTC Retained] (see above)

David M. Monde Direct: 404-5818206

[NTC Retained] (see above)

CATHOLIC CHARITIES OF THE ARCHDIOCESE OF ATLANTA, INC., a Georgia non-profit corporation
Plaintiff - Appellee

Edward Kendrick Smith Direct: 404-5818343 [COR LD NTC Retained] (see above)

Jason Todd Burnette Direct: 404-5818724 [NTC Retained] (see above)

Stephen M. Forte Direct: 404-8153500 [NTC Retained] (see above)

Brian Charles Lea Direct: 404-5818528 [COR Retained] (see above)

Janine Cone Metcalf Direct: 404-5818656 [COR NTC Retained] (see above)

David M. Monde Direct: 404-5818206 [NTC Retained] (see above)

THE ROMAN CATHOLIC DIOCESE OF SAVANNAH, an ecclesiastical territory
Plaintiff - Appellee

Edward Kendrick Smith Direct: 404-581-

8343 [COR LD NTC Retained] (see above)
Jason Todd Burnette Direct: 404-5818724 [NTC Retained] (see above)
Stephen M. Forte Direct: 404-8153500 [NTC Retained] (see above)
Brian Charles Lea Direct: 404-5818528 [COR NTC Retained] (see above)

David M. Monde Direct: 404-5818206 [NTC Retained] (see above)

JOHN HARTMAYER, and his successors, Bishop of The Roman Catholic Diocese of Savannah
Plaintiff - Appellee

Edward Kendrick Smith Direct: 404-5818343 [COR LD NTC Retained] (see above)
Jason Todd Burnette Direct: 404-5818724 [NTC Retained] (see above)
Stephen M. Forte

versus

Direct: 404-8153500 [NTC Retained] (see above)
Brian Charles Lea Direct: 404-5818528 [COR NTC Retained] (see above)
Janine Cone Metcalf Direct: 404-5818656 [COR NTC Retained] (see above)
David M. Monde Direct: 404-5818206 [NTC Retained] (see above)

SECRETARY, U.S. DEPARTMENT OF HEALTH AND HUMAN Patrick Nemeroff

SERVICES

Direct: 202-305-

Defendant - Appellan 8727

t

[COR LD NTC US

Attorney]

U.S. Department of

Justice

Civil Division,

Appellate Staff

RM 7217

Firm: 202-514-3511

950

PENNSYLVANIA

AVE NW

WASHINGTON,

DC 20530-0001

Megan Barbero

Direct: 202-5324631 [COR NTC U.S. Government] U.S. Department of Justice Civil Division, Appellate Staff RM 7226 Firm: 202-514-3511 950 PENNSYLVANIA AVE NW WASHINGTON, DC 20530-0001
Michelle R. Bennett [NTC U.S. Government] U.S. Department of Justice 20 MASSACHUSETT S AVE NW WASHINGTON, DC 20530
Stuart F. Delery [NTC U.S. Government] U.S. Department of Justice Civil Division, Appellate Staff Firm: 202-514-3511 950 PENNSYLVANIA AVE NW WASHINGTON, DC 20530-0001
Joshua Marc Salzman Direct: 202-5324747

[COR NTC U.S. Government] U.S. Department of Justice RM 7258 950 CONSTITUTION AVE NW WASHINGTON, DC 20530-0001
Sally Yates [NTC US Attorney] U.S. Attorney's Office Firm: 404-581-6000 75 TED TURNER DR SW STE 600 ATLANTA, GA 30303

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

Patrick Nemeroff

Defendant - Appellan Direct: 202-305-

t

8727

[COR LD NTC US

Attorney]

(see above)

Michelle R. Bennett [NTC U.S. Government] (see above)

Stuart F. Delery [NTC U.S. Government] (see above)

Adam C. Jed Direct: 202-5148280 [COR NTC U.S. Government] U.S. Attorney General's Office

U.S. DEPARTMENT OF LABOR t

RM 7240 950 PENNSYLVANIA AVE NW WASHINGTON, DC 20530-001
Alisa Beth Klein Direct: 202-5141597 [COR NTC U.S. Government] U.S. Attorney General's Office RM 7235 950 PENNSYLVANIA AVE NW WASHINGTON, DC 20530-001
Joshua Marc Salzman Direct: 202-5324747 [COR NTC U.S. Government] (see above)
Sally Yates [NTC US Attorney] (see above)
Patrick Nemeroff Defendant - Appellan Direct: 202-305-
8727 [COR LD NTC US Attorney] (see above)
Michelle R. Bennett [NTC U.S. Government] (see above)

U.S. DEPARTMENT OF THE TREASURY t

Stuart F. Delery [NTC U.S. Government] (see above)
Adam C. Jed Direct: 202-5148280 [COR NTC U.S. Government] (see above)
Alisa Beth Klein Direct: 202-5141597 [COR NTC U.S. Government] (see above)
Joshua Marc Salzman Direct: 202-5324747 [COR NTC U.S. Government] (see above)
Sally Yates [NTC US Attorney] (see above)
Patrick Nemeroff Defendant - Appellan Direct: 202-305-
8727 [COR LD NTC US Attorney] (see above)
Michelle R. Bennett [NTC U.S. Government] (see above)
Stuart F. Delery [NTC U.S.

Government] (see above)

Adam C. Jed Direct: 202-5148280 [COR NTC U.S. Government] (see above)
Alisa Beth Klein Direct: 202-5141597 [COR NTC U.S. Government] (see above)
Joshua Marc Salzman Direct: 202-5324747 [COR NTC U.S. Government] (see above)
Sally Yates [NTC US Attorney] (see above)

SECRETARY, U.S. DEPARTMENT OF LABOR, in his official

Patrick Nemeroff

capacity as Secretary of the U.S. Department of Labor

Direct: 202-305-

Defendant - Appellan 8727

t

[COR LD NTC US

Attorney]

(see above)

Megan Barbero Direct: 202-5324631 [COR NTC U.S. Government] (see above)

Michelle R. Bennett [NTC U.S.

Government] (see above)

Stuart F. Delery [NTC U.S. Government] (see above)

Joshua Marc Salzman Direct: 202-5324747 [COR NTC U.S. Government] (see above)
Sally Yates [NTC US Attorney] (see above)

SECRETARY, U.S. DEPARTMENT OF THE TREASURY, in his Patrick Nemeroff

official capacity as Secretary of the U.S. Department of the Treasury Direct: 202-305-

Defendant - Appellan 8727

t

[COR LD NTC US

Attorney]

(see above)

Megan Barbero Direct: 202-5324631 [COR NTC U.S. Government] (see above)

Michelle R. Bennett [NTC U.S. Government] (see above)

Stuart F. Delery [NTC U.S. Government] (see above)

Joshua Marc

-----------------------------NATIONAL WOMEN'S LAW CENTER

Amicus Curiae

DOMINICAN SISTERS OF MARY

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES
Amicus Curiae

Salzman Direct: 202-5324747 [COR NTC U.S. Government] (see above)
Sally Yates [NTC US Attorney] (see above)
Charles E. Davidow Direct: 202-2237380 [COR LD NTC Retained] Paul Weiss Rifkind Wharton & Garrison, LLP Firm: 202-223-7300 2001 K ST NW WASHINGTON, DC 20006
Carrie Lynn Severino Direct: 616-9158180 [COR LD NTC Retained] Judicial Crisis Network Firm: 619-915-8180 113 2ND ST NE WASHINGTON, DC 20002
Charles E. Davidow Direct: 202-2237380 [COR LD NTC Retained] (see above)

MOTHER OF THE EUCHARIST

FLORIDA ASSOCIATION OF PLANNED PARENTHOOD AFFILIATES, INC.
Amicus Curiae
SISTERS OF LIFE

LEGAL MOMENTUM

Amicus Curiae

JUDICIAL EDUCATION PROJECT

NATIONAL FAMILY PLANNING AND REPRODUCTIVE HEALTH ASSOCIATION
Amicus Curiae

Carrie Lynn Severino Direct: 616-9158180 [COR LD NTC Retained] (see above)
Carrie Lynn Severino Direct: 616-9158180 [COR LD NTC Retained] (see above)
Charles E. Davidow Direct: 202-2237380 [COR LD NTC Retained] (see above)
Carrie Lynn Severino Direct: 616-9158180 [COR LD NTC Retained] (see above)
Charles E. Davidow Direct: 202-2237380 [COR LD NTC Retained] (see above)

NATIONAL LATINA INSTITUTE FOR REPRODUCTIVE HEALTH
Amicus Curiae
NATIONAL WOMEN'S HEALTH NETWORK Amicus Curiae

NARAL PRO-CHOICE AMERICA

Amicus Curiae

PLANNED PARENTHOOD SOUTHEAST, INC. Amicus Curiae

POPULATION CONNECTION

Amicus Curiae

SERVICE EMPLOYEES INTERNATIONAL UNION Amicus Curiae

AMERICAN CIVIL LIBERTIES UNION

Amicus Curiae

Charles E. Davidow Direct: 202-2237380 [COR LD NTC Retained] (see above)
Charles E. Davidow Direct: 202-2237380 [COR LD NTC Retained] (see above)
Charles E. Davidow Direct: 202-2237380 [COR LD NTC Retained] (see above)
Charles E. Davidow Direct: 202-2237380 [COR LD NTC Retained] (see above)
Charles E. Davidow Direct: 202-2237380 [COR LD NTC Retained] (see above)
Charles E. Davidow Direct: 202-2237380 [COR LD NTC Retained] (see above)
Richard Brian Katskee

AMERICAN CIVIL LIBERTIES UNION OF GEORGIA Amicus Curiae
AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE
Amicus Curiae

[COR LD NTC Retained] Americans United for Separation of Church and State 1310 L ST NW STE 200 WASHINGTON, DC 20005
Ayesha N. Khan Direct: 240-9384234 [COR LD NTC Retained] U.S. Department of Justice Civil Rights Division 5309 BURLING TERR BETHESDA, MD 20814
Richard Brian Katskee [COR LD NTC Retained] (see above)
Ayesha N. Khan Direct: 240-9384234 [COR LD NTC Retained] (see above)
Richard Brian Katskee [COR LD NTC Retained] (see above)
Ayesha N. Khan Direct: 240-938-

ASSOCIATION OF AMERICAN PHYSICIANS & SURGEONS, INC.
Amicus Curiae

AMERICAN ASSOCIATION OF PRO-LIFE OBSTETRICIANS & GYNECOLOGISTS
Amicus Curiae

CHRISTIAN MEDICAL ASSOCIATION

Amicus Curiae

CATHOLIC MEDICAL ASSOCIATION

Amicus Curiae

ALABAMA PHYSICIANS FOR LIFE

Amicus Curiae

4234 [COR LD NTC Retained] (see above)
Mailee R. Smith Direct: 309-2020618 [COR LD NTC Retained] Illinois Policy Institute 802 S 2ND ST SPRINGFIELD, IL 62704
Mailee R. Smith Direct: 309-2020618 [COR LD NTC Retained] (see above)
Mailee R. Smith Direct: 309-2020618 [COR LD NTC Retained] (see above)
Mailee R. Smith Direct: 309-2020618 [COR LD NTC Retained] (see above)
Mailee R. Smith Direct: 309-2020618 [COR LD NTC Retained] (see above)

NATIONAL ASSOCIATION OF PRO LIFE NURSES Amicus Curiae

Mailee R. Smith Direct: 309-2020618 [COR LD NTC Retained] (see above)

NATIONAL ASSOCIATION OF CATHOLIC NURSES Amicus Curiae

Mailee R. Smith Direct: 309-2020618 [COR LD NTC Retained] (see above)

THE NATIONAL CATHOLIC BIOETHICS CENTER Amicus Curiae

Mailee R. Smith Direct: 309-2020618 [COR LD NTC Retained] (see above)

THE ROMAN CATHOLIC ARCHDIOCESE OF ATLANTA, an association of churches and schools, THE MOST REVEREND WILTON D GREGORY, and his successors, Archbishop of the Roman Catholic Archdiocese of Atlanta, CATHOLIC CHARITIES OF THE ARCHDIOCESE OF ATLANTA, INC., a Georgia non-profit corporation, THE ROMAN CATHOLIC DIOCESE OF SAVANNAH, an ecclesiastical territory, THE MOST REVEREND JOHN HARTMAYER, and his successors, Bishop of The Roman Catholic Diocese of Savannah, et al.,
Plaintiffs - Appellees,
versus
SECRETARY, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY, SECRETARY, U.S. DEPARTMENT OF LABOR, SECRETARY, U.S. DEPARTMENT OF TREASURY,
Defendants - Appellants.

06/30/2014
96 pg, 6.7 MB
07/11/2014
2 pg, 77.86 KB
07/11/2014
2 pg, 81.92 KB
07/11/2014
2 pg, 81.47 KB
07/11/2014
2 pg, 81.93 KB
07/14/2014
07/14/2014

CIVIL APPEAL DOCKETED. Notice of appeal filed by Appellants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, U.S. Department of Health and Human Services, U.S. Department of Labor and U.S. Department of Treasury on 05/23/2014. Fee Status: Fee Not Required.
APPEARANCE of Counsel Form filed by Edward Kendrick Smith for The Roman Catholic Archdiocese of Atlanta, Wilton D Gregory, Catholic Charities of the Archdiocese of Atlanta, Inc., The Roman Catholic Diocese of Savannah and John Hartmayer. (ECF: Edward Smith)
APPEARANCE of Counsel Form filed by Janine Cone Metcalf for The Roman Catholic Archdiocese of Atlanta, Wilton D Gregory, Catholic Charities of the Archdiocese of Atlanta, Inc. and John Hartmayer. (ECF: Janine Metcalf)
APPEARANCE of Counsel Form filed by James Williams for The Roman Catholic Archdiocese of Atlanta, Wilton D Gregory, Catholic Charities of the Archdiocese of Atlanta, Inc., The Roman Catholic Diocese of Savannah and John Hartmayer. (ECF: James Williams)
APPEARANCE of Counsel Form filed by Brian Charles Lea for The Roman Catholic Archdiocese of Atlanta, Wilton D Gregory, Catholic Charities of the Archdiocese of Atlanta, Inc., The Roman Catholic Diocese of Savannah and John Hartmayer. (ECF: Brian Lea)
E-filed Appearance of Counsel processed for Attorney Edward Kendrick Smith for Appellee The Roman Catholic Diocese of Savannah in 14-12890, Attorney Edward Kendrick Smith for Appellee The Roman Catholic Archdiocese of Atlanta in 1412890, Attorney Edward Kendrick Smith for Appellee John Hartmayer in 14-12890, Attorney Edward Kendrick Smith for Appellee Wilton D Gregory in 14-12890, Attorney Edward Kendrick Smith for Appellee Catholic Charities of the Archdiocese of Atlanta, Inc. in 14-12890.
E-filed Appearance of Counsel processed for Attorney Janine Cone Metcalf for Appellee The Roman Catholic Archdiocese of Atlanta in 14-12890, Attorney Janine Cone Metcalf for Appellee John Hartmayer in 14-12890, Attorney Janine Cone Metcalf for Appellee Wilton D Gregory in 14-12890, Attorney Janine Cone Metcalf for Appellee Catholic Charities of the Archdiocese of Atlanta, Inc. in 14-12890.

07/14/2014

E-filed Appearance of Counsel processed for Attorney Brian Charles Lea for Appellee The Roman Catholic Diocese of Savannah in 14-12890, Attorney Brian Charles Lea for Appellee The Roman Catholic Archdiocese of Atlanta in 14-12890, Attorney Brian Charles Lea for Appellee John Hartmayer in 1412890, Attorney Brian Charles Lea for Appellee Wilton D Gregory in 14-12890, Attorney Brian Charles Lea for Appellee Catholic Charities of the Archdiocese of Atlanta, Inc. in 14-12890.

07/14/2014
1 pg, 26.88 KB

APPEARANCE of Counsel Form filed by Patrick G. Nemeroff U.S. Dep't of Health & Human Services, et al. (ECF: Patrick Nemeroff)

07/14/2014

APPEARANCE of Counsel Form filed by Adam C. Jed - U.S.

1 pg, 26.83 KB Dep't of Health & Human Services, et al. (ECF: Patrick Nemeroff)

07/14/2014

APPEARANCE of Counsel Form filed by Alisa B. Klein - U.S.

1 pg, 26.86 KB Dep't of Health & Human Services, et al. (ECF: Patrick Nemeroff)

07/14/2014

APPEARANCE of Counsel Form filed by Megan Barbero - U.S.

1 pg, 26.91 KB Dep't of Health & Human Services, et al. (ECF: Patrick Nemeroff)

07/15/2014

Added Attorney(s) Patrick Nemeroff for party(s) Appellant Secretary, U.S. Department of Labor Appellant Secretary, U.S. Department of the Treasury Appellant U.S. Department of the Treasury Appellant U.S. Department of Health and Human Services Appellant U.S. Department of Labor Appellant Secretary, U.S. Department of Health and Human Services, in case 14-12890.

07/15/2014
95 pg, 458.04 KB

Civil Appeal Statement filed by Attorney Patrick Nemeroff for Appellants U.S. Department of Labor, U.S. Department of Health and Human Services, Secretary, U.S. Department of the Treasury, U.S. Department of the Treasury, Secretary, U.S. Department of Health and Human Services and Secretary, U.S. Department of Labor. (ECF: Patrick Nemeroff)

07/15/2014
3 pg, 57.17 KB

Certificate of Interested Persons and Corporate Disclosure Statement filed by. On the same day the CIP is served, the party filing it must also complete the court's web-based stock ticker symbol certificate at the link here http://www.ca11.uscourts.gov/web-based-cip or on the court's website. See 11th Cir. R. 26.1-2(b). (ECF: Patrick Nemeroff)

07/15/2014
1 pg, 38.57 KB

TRANSCRIPT INFORMATION FORM SUBMITTED by Attorney Patrick Nemeroff for Appellants U.S. Department of Labor, U.S. Department of Health and Human Services, Secretary, U.S. Department of the Treasury, U.S. Department of the

07/15/2014 07/15/2014 07/16/2014
1 pg, 90.45 KB
07/16/2014
07/16/2014 07/17/2014
2 pg, 16.9 KB
07/23/2014
5 pg, 55.82 KB

Treasury, Secretary, U.S. Department of Health and Human Services and Secretary, U.S. Department of Labor. No transcript is required for appeal purposes. (ECF: Patrick Nemeroff)
Added Attorney(s) Adam C. Jed for party(s) Appellant U.S. Department of the Treasury Appellant U.S. Department of Health and Human Services Appellant U.S. Department of Labor, in case 14-12890.
Added Attorney(s) Alisa Beth Klein for party(s) Appellant U.S. Department of the Treasury Appellant U.S. Department of Health and Human Services Appellant U.S. Department of Labor, in case 14-12890.
TRANSCRIPT INFORMATION form filed by Attorney Patrick Nemeroff for Appellants U.S. Department of Labor, U.S. Department of Health and Human Services, Secretary, U.S. Department of the Treasury, U.S. Department of the Treasury, Secretary, U.S. Department of Health and Human Services and Secretary, U.S. Department of Labor. No transcript is required for appeal purposes.
E-filed Appearance of Counsel processed for Attorney James Ronald Williams Jr. for Appellee The Roman Catholic Diocese of Savannah in 14-12890, Attorney James Ronald Williams Jr. for Appellee The Roman Catholic Archdiocese of Atlanta in 1412890, Attorney James Ronald Williams Jr. for Appellee John Hartmayer in 14-12890, Attorney James Ronald Williams Jr. for Appellee Wilton D Gregory in 14-12890, Attorney James Ronald Williams Jr. for Appellee Catholic Charities of the Archdiocese of Atlanta, Inc. in 14-12890.
Added Attorney(s) Megan Barbero for party(s) Appellant Secretary, U.S. Department of Labor Appellant Secretary, U.S. Department of the Treasury Appellant Secretary, U.S. Department of Health and Human Services, in case 14-12890.
Briefing Notice issued to Appellants Secretary, U.S. Department of Health and Human Services and U.S. Department of the Treasury. The appellants brief is due on or before 08/11/2014. The appendix is due on or before 08/18/2014.
***Returned Unfiled***MOTION for extension of time to file appellants brief to 09/10/2014 filed by Secretary, U.S. Department of Health and Human Services, Secretary, U.S. Department of Labor and Secretary, U.S. Department of the Treasury. Motion is Unopposed. [7226554-1]--[Edited 07/23/2014 by JC] (ECF: Megan Barbero)

07/23/2014
5 pg, 55.72 KB

MOTION to consolidate appeals 14-12890, 14-13239 filed by Secretary, U.S. Department of Health and Human Services, Secretary, U.S. Department of Labor and Secretary, U.S. Department of the Treasury. Motion is Unopposed. [72265621] (ECF: Megan Barbero)

07/23/2014
1 pg, 13.88 KB

RETURNED UNFILED: The motion for extension to file appellants' brief received from Attorney Megan Barbero for Appellants Secretary, U.S. Department of the Treasury, Secretary, U.S. Department of Health and Human Services and Secretary, U.S. Department of Labor is returned unfiled because it is unnecessary. The appellants' brief will be due forty days from the date that the Court rules on the motion to consolidate appeals.

07/24/2014
96 pg, 505.82 KB

Response to Civil Appeal Statement form filed by Attorney Edward Kendrick Smith for Appellees The Roman Catholic Archdiocese of Atlanta, Wilton D Gregory, Catholic Charities of the Archdiocese of Atlanta, Inc., The Roman Catholic Diocese of Savannah and John Hartmayer. (ECF: Edward Smith)

07/24/2014
2 pg, 92.11 KB

Certificate of Interested Persons and Corporate Disclosure Statement filed by Attorney Edward Kendrick Smith for Appellees The Roman Catholic Archdiocese of Atlanta, Wilton D Gregory, Catholic Charities of the Archdiocese of Atlanta, Inc., The Roman Catholic Diocese of Savannah and John Hartmayer. On the same day the CIP is served, the party filing it must also complete the court's web-based stock ticker symbol certificate at the link here http://www.ca11.uscourts.gov/web-based-cip or on the court's website. See 11th Cir. R. 26.1-2(b). (ECF: Edward Smith)

08/15/2014
1 pg, 13.93 KB

ORDER: The motion to consolidate appeals is GRANTED. The appellants' brief is due on September 24, 2014. (AGW)[72265622] [14-12890, 14-13239]

08/21/2014

Civil Appeal Statement filed by Attorney Edward Kendrick Smith

109 pg, 512.65 KB for Appellees The Roman Catholic Archdiocese of Atlanta,

Wilton D Gregory, Catholic Charities of the Archdiocese of

Atlanta, Inc., The Roman Catholic Diocese of Savannah and John

Hartmayer. (ECF: Edward Smith)

08/21/2014
2 pg, 76.69 KB

Certificate of Interested Persons and Corporate Disclosure Statement filed by Attorney Edward Kendrick Smith for Appellees The Roman Catholic Archdiocese of Atlanta, Wilton D Gregory, Catholic Charities of the Archdiocese of Atlanta, Inc., The Roman Catholic Diocese of Savannah and John Hartmayer. On the same day the CIP is served, the party filing it must also

complete the court's web-based stock ticker symbol certificate at the link here http://www.ca11.uscourts.gov/web-based-cip or on the court's website. See 11th Cir. R. 26.1-2(b). (ECF: Edward Smith)

09/17/2014
7 pg, 178.41 KB

TIME SENSITIVE MOTION for extension of time to file appellants brief to 10/24/2014 filed by U.S. Department of Health and Human Services, U.S. Department of Labor and U.S. Department of the Treasury. Motion is Unopposed. [72742771] (ECF: Adam Jed)

09/22/2014
3 pg, 21.25 KB

ORDER: Motion for extension to file appellant brief filed by Appellants U.S. Department of Labor, U.S. Department of Health and Human Services and U.S. Department of the Treasury is GRANTED. [7274277-2] in 14-12890, Motion for extension to file appellant brief filed by Appellants U.S. Department of Labor, U.S. Department of Health and Human Services, Secretary, U.S. Department of the Treasury, U.S. Department of the Treasury, Secretary, U.S. Department of Health and Human Services and Secretary, U.S. Department of Labor is GRANTED. [7274276-2] in 14-13239 Appellants brief due on 10/24/2014. SM [14-12890, 14-13239]

10/22/2014
1 pg, 26.85 KB

APPEARANCE of Counsel Form filed by Joshua M. Salzman, representing Departments of HHS, Labor, and Treasury, and Secretaries of HHS, Labor and Treasury (ECF: Joshua Salzman)

10/22/2014

Added Attorney Joshua Marc Salzman for Appellant Secretary, U.S. Department of Labor Appellant Secretary, U.S. Department of the Treasury Appellant U.S. Department of the Treasury Appellant U.S. Department of Health and Human Services Appellant U.S. Department of Labor Appellant Secretary, U.S. Department of Health and Human Services, in case 14-12890.

10/24/2014
80 pg, 339.78 KB

Appellant's brief filed by Secretary, U.S. Department of Health and Human Services, Secretary, U.S. Department of Labor, Secretary, U.S. Department of the Treasury, U.S. Department of Health and Human Services, U.S. Department of Labor and U.S. Department of the Treasury. (ECF: Joshua Salzman)

10/27/2014
246 pg, 1.39 MB

Appendix filed [1 VOLUMES] by Appellants Secretary, U.S. Department of Health and Human Services, Secretary, U.S. Department of Labor, Secretary, U.S. Department of the Treasury, U.S. Department of Health and Human Services, U.S. Department of Labor and U.S. Department of the Treasury. (ECF: Patrick Nemeroff)

10/27/2014

Received paper copies of EBrief filed by Appellants Secretary, U.S. Department of Health and Human Services, Secretary, U.S. Department of Labor, Secretary, U.S. Department of the Treasury, U.S. Department of Health and Human Services, U.S. Department of Labor and U.S. Department of the Treasury.

10/29/2014

Received paper copies of EAppendix filed by Appellants Secretary, U.S. Department of Health and Human Services, Secretary, U.S. Department of Labor, Secretary, U.S. Department of the Treasury, U.S. Department of Health and Human Services, U.S. Department of Labor and U.S. Department of the Treasury in 14-12890. 1 VOLUMES - 2 SETS [14-12890, 14-13239]

10/30/2014
2 pg, 120.14 KB

APPEARANCE of Counsel Form filed by Charles E. Davidow for National Women's Law Center; AFSCME; Florida Association of Planned Parenthood Affiliates, Inc.; Legal Momentum; National Family Planning and Reproductive Health Association; National Latina Institute for Reproductive Health, et al. (ECF: Charles Davidow)

10/30/2014

Added Attorney Charles E. Davidow for Amicus Curiae National Women's Law Center Amicus Curiae National Family Planning and Reproductive Health Association Amicus Curiae Planned Parenthood Southeast, Inc. Amicus Curiae American Federation of State, County and Municipal Employees Amicus Curiae NARAL Pro-Choice America Amicus Curiae Legal Momentum Amicus Curiae National Latina Institute for Reproductive Health Amicus Curiae Population Connection Amicus Curiae Service Employees International Union Amicus Curiae National Women's Health Network, in case 14-12890.

10/31/2014
55 pg, 229.89 KB

MOTION to file amicus brief pursuant to FRAP 29(a) filed by Ayesha N. Khan for Americans United for Separation of Church and State, American Civil Liberties Union, and American Civil Liberties Union of Georgia. [7312074-1] (ECF: Ayesha Khan)

10/31/2014
49 pg, 357.92 KB

MOTION to file amicus brief pursuant to FRAP 29(a) filed by Charles E. Davidow for National Women's Law Center; AFSCME; Florida Association of Planned Parenthood Affiliates, Inc.; Legal Momentum; NARAL Pro-Choice America; National Family Planning and Reproductive Health Assocation, et al.. [7312157-1] (ECF: Charles Davidow)

11/03/2014
2 pg, 16.02 KB

Notice of deficient Appellant appendix filed by Patrick Nemeroff for Appellants U.S. Department of Labor, U.S. Department of Health and Human Services, Secretary, U.S. Department of the Treasury, U.S. Department of the Treasury, Secretary, U.S.

Department of Health and Human Services and Secretary, U.S. Department of Labor and Joshua Marc Salzman for Appellants U.S. Department of Labor, U.S. Department of Health and Human Services, Secretary, U.S. Department of the Treasury, U.S. Department of the Treasury, Secretary, U.S. Department of Health and Human Services and Secretary, U.S. Department of Labor in 14-12890. Deficiencies: answer. [14-12890, 14-13239]

11/03/2014

The Notice of Deficient Appendix dated 11/03/2014, is hereby RESCINDED. Upon further review, appellant's appendix is COMPLIANT. No further action needed. [14-12890, 14-13239]

11/03/2014

Added Attorney Ayesha N. Khan for Amicus Curiae American Civil Liberties Union Amicus Curiae American Civil Liberties Union of Georgia Amicus Curiae Americans United for Separation of Church and State, in case 14-12890.

11/03/2014

Notice of deficient Motion filed by Ayesha N. Khan for Americans United for Separation of Church and State, American Civil Liberties Union and American Civil Liberties Union of Georgia. Appearance of Counsel form not filed.

11/03/2014
2 pg, 43.61 KB

APPEARANCE of Counsel Form filed by Ayesha N. Khan for Americans United for Separation of Church and State, American Civil Liberties Union and American Civil Liberties Union of Georgia. (ECF: Ayesha Khan)

11/06/2014

Over the phone extension granted by clerk. Appellees' Brief due on 12/05/2014. [14-12890, 14-13239]

12/03/2014
3 pg, 158.14 KB

ORDER: The "Motion for Leave to File Brief of Amici Curia Americans United for Separation of Church and State, American Civil Liberties Union, and American Civil Liberties Union of Georgia in Support of Appellants and Reversal" is GRANTED. The "Motion for Leave to File Brief of the National Women's Law Center and Ten Other National, Regional, State, and Local Organizations as Amici Curiae in Support of DefendantsAppellants and Reversal" is GRANTED. [7312157-2] [73120742] [7312159-2] (RSR) [14-12890, 14-13239]

12/03/2014
42 pg, 242.45 KB

Amicus Brief filed by Amicus Curium Florida Association of Planned Parenthood Affiliates, Inc., Legal Momentum, NARAL Pro-Choice America, National Family Planning and Reproductive Health Association, National Latina Institute for Reproductive Health, National Women's Health Network, National Women's Law Center, Planned Parenthood Southeast, Inc., Population Connection and Service Employees International Union. Service date: 10/31/2014 by CM/ECF. [14-12890, 14-13239]

12/03/2014
48 pg, 161.19 KB

Amicus Brief filed by Amicus Curium American Civil Liberties Union, American Civil Liberties Union of Georgia and Americans United for Separation of Church and State. Service date: 10/31/2014 by CM/ECF. [14-12890, 14-13239]

12/04/2014

Added Attorney Mailee R. Smith for Amicus Curiae Christian Medical Association Amicus Curiae Alabama Physicians for Life Amicus Curiae National Association of Pro Life Nurses Amicus Curiae The National Catholic Bioethics Center Amicus Curiae Catholic Medical Association Amicus Curiae Association of American Physicians & Surgeons, Inc. Amicus Curiae American Association of Pro-Life Obstetricians & Gynecologists Amicus Curiae National Association of Catholic Nurses, in case 14-12890 Attorney Mailee R. Smith for Amicus Curiae Christian Medical Association Amicus Curiae Alabama Physicians for Life Amicus Curiae National Association of Pro Life Nurses Amicus Curiae The National Catholic Bioethics Center Amicus Curiae Catholic Medical Association Amicus Curiae Association of American Physicians & Surgeons, Inc. Amicus Curiae American Association of Pro-Life Obstetricians & Gynecologists Amicus Curiae National Association of Catholic Nurses, in case 14-13239. [14-12890, 14-13239]

12/04/2014
1 pg, 56.35 KB

APPEARANCE of Counsel Form filed by Mailee R. Smith for Catholic Medical Association, Christian Medical Association, The National Catholic Bioethics Center, National Association of Pro Life Nurses, American Association of Pro-Life Obstetricians & Gynecologists, Alabama Physicians for Life, National Association of Catholic Nurses and Association of American Physicians & Surgeons, Inc.. (ECF: Mailee Smith)

12/04/2014

E-filed Appearance of Counsel processed for Attorney Mailee R. Smith for Amicus Curiae The National Catholic Bioethics Center in 14-12890, Attorney Mailee R. Smith for Amicus Curiae National Association of Pro Life Nurses in 14-12890, Attorney Mailee R. Smith for Amicus Curiae National Association of Catholic Nurses in 14-12890, Attorney Mailee R. Smith for Amicus Curiae Christian Medical Association in 14-12890, Attorney Mailee R. Smith for Amicus Curiae Catholic Medical Association in 14-12890, Attorney Mailee R. Smith for Amicus Curiae Association of American Physicians & Surgeons, Inc. in 14-12890, Attorney Mailee R. Smith for Amicus Curiae American Association of Pro-Life Obstetricians & Gynecologists in 1412890, Attorney Mailee R. Smith for Amicus Curiae Alabama Physicians for Life in 14-12890.

12/04/2014

Appellee's Brief filed by Appellees Catholic Charities of the

113 pg, 374.87 KB Archdiocese of Atlanta, Inc., Wilton D Gregory, John Hartmayer,

The Roman Catholic Archdiocese of Atlanta and The Roman

Catholic Diocese of Savannah. (ECF: Edward Smith)

12/05/2014

Received paper copies of EBrief filed by Appellees Catholic Charities of the Archdiocese of Atlanta, Inc., Wilton D Gregory, John Hartmayer, The Roman Catholic Archdiocese of Atlanta and The Roman Catholic Diocese of Savannah in 14-12890, 14-13239. [14-12890, 14-13239]

12/10/2014

***DOCKETED IN ERROR***Supplemental Appendix [1 VOLUMES] filed by Appellees Catholic Charities of the Archdiocese of Atlanta, Inc., Wilton D Gregory, John Hartmayer, The Roman Catholic Archdiocese of Atlanta and The Roman Catholic Diocese of Savannah in 14-12890, 14-13239. [14-12890, 14-13239]--[Edited 12/17/2014 by MLS] (ECF: Edward Smith)

12/10/2014
414 pg, 3.31 MB

Supplemental Appendix [1 VOLUMES] filed by Appellees Catholic Charities of the Archdiocese of Atlanta, Inc., Wilton D Gregory, John Hartmayer, The Roman Catholic Archdiocese of Atlanta and The Roman Catholic Diocese of Savannah in 1413239, 14-12890. [14-13239, 14-12890] (ECF: Edward Smith)

12/11/2014

Received paper copies of EAppendix filed by Appellees Catholic Charities of the Archdiocese of Atlanta, Inc., Wilton D Gregory, John Hartmayer, The Roman Catholic Archdiocese of Atlanta and The Roman Catholic Diocese of Savannah in 14-12890. 1 VOLUMES - 2 SETS [14-12890, 14-13239]

12/12/2014
52 pg, 142.92 KB

Amicus Brief as of right or by consent of the parties filed by Mailee R. Smith for Assn of Amer Phys & Surgeons, Amer Assn of Pro-Life OBs/Gyns, Christian Med Assn, Cath Med Assn, AL Phys for Life, Natl Assn ProLife Nurses, Natl Assn Cath Nurses, Natl Cath Bioethics Ctr. (ECF: Mailee Smith)

12/15/2014

Received paper copies of EBrief filed by Amicus Curium American Association of Pro-Life Obstetricians & Gynecologists, Association of American Physicians & Surgeons, Inc., Catholic Medical Association, Christian Medical Association, National Association of Catholic Nurses, National Association of Pro Life Nurses and The National Catholic Bioethics Center in 14-12890, Amicus Curium Alabama Physicians for Life, American Association of Pro-Life Obstetricians & Gynecologists, Association of American Physicians & Surgeons, Inc., Catholic Medical Association, Christian Medical Association, National Association of Catholic Nurses, National Association of Pro Life

Nurses and The National Catholic Bioethics Center in 14-13239. [14-12890, 14-13239]

12/18/2014
7 pg, 144.46 KB

MOTION to withdraw as counsel filed by Attorney Brian Charles Lea for Appellees The Roman Catholic Archdiocese of Atlanta, Wilton D Gregory, Catholic Charities of the Archdiocese of Atlanta, Inc., The Roman Catholic Diocese of Savannah and John Hartmayer. Opposition to Motion is Unknown [7350455-1] (ECF: Brian Lea)

12/18/2014
1 pg, 12.25 KB

ORDER: The motion to withdraw as counsel filed by Brian Charles Lea is GRANTED. (AGW) [7350455-2] [7350460-2] [1412890, 14-13239]

12/18/2014
35 pg, 185.29 KB

Reply Brief filed by Appellants Secretary, U.S. Department of Health and Human Services, Secretary, U.S. Department of Labor, Secretary, U.S. Department of the Treasury, U.S. Department of Health and Human Services, U.S. Department of Labor and U.S. Department of the Treasury. (ECF: Joshua Salzman)

12/19/2014

RETURNED UNFILED MOTION to request or set oral argument.sets oral argument filed by Secretary, U.S. Department of Health and Human Services, Secretary, U.S. Department of Labor, Secretary, U.S. Department of the Treasury, U.S. Department of Health and Human Services, U.S. Department of Labor and U.S. Department of the Treasury. Motion is Unopposed. [7351592-1]--[Edited 01/06/2015 by JLT] (ECF: Joshua Salzman)

12/19/2014

Received paper copies of EBrief filed by Appellants Secretary, U.S. Department of Health and Human Services, Secretary, U.S. Department of Labor, Secretary, U.S. Department of the Treasury, U.S. Department of Health and Human Services, U.S. Department of Labor and U.S. Department of the Treasury in 14-12890. [1412890, 14-13239]

12/22/2014

The Court has determined that oral argument will be necessary in this case. Please forward 3 additional copies of the 1 volumes of Appendix filed 10/27/14 by Attorney Patrick Nemeroff for Appellants U.S. Department of Labor, U.S. Department of Health and Human Services, Secretary, U.S. Department of the Treasury, U.S. Department of the Treasury, Secretary, U.S. Department of Health and Human Services and Secretary, U.S. Department of Labor in 14-12890 to the Clerk's Office, Attention: Jenifer Tubbs. Your prompt attention to this matter is appreciated. [14-12890, 14-13239]

12/22/2014
12/24/2014
01/06/2015
1 pg, 15.32 KB
01/06/2015
1 pg, 14.15 KB
01/06/2015 01/09/2015
01/23/2015

The Court has determined that oral argument will be necessary in this case. Please forward 3 additional copies of the 1 volumes of Supplemental Appendix filed 12/10/14 by Attorney Edward Kendrick Smith for Appellees The Roman Catholic Archdiocese of Atlanta, Wilton D Gregory, Catholic Charities of the Archdiocese of Atlanta, Inc., The Roman Catholic Diocese of Savannah and John Hartmayer in 14-12890 to the Clerk's Office, Attention: Jenifer Tubbs. Your prompt attention to this matter is appreciated. [14-12890, 14-13239]
Additional copies of Appendix received from Edward Kendrick Smith for The Roman Catholic Archdiocese of Atlanta, Wilton D Gregory, Catholic Charities of the Archdiocese of Atlanta, Inc., The Roman Catholic Diocese of Savannah and John Hartmayer in 14-12890 and forwarded to the record room. [14-12890, 1413239]
Calendar issued as to cases to be orally argued the week of 02/02/2015 in Atlanta, Georgia. Counsel are directed to electronically acknowledge receipt of this calendar by docketing the Calendar Receipt Acknowledged event in ECF. Counsel must be logged into CM/ECF in order to view the attached calendar. [14-12890, 14-13239]
RETURNED UNFILED: Motion to request or set oral argument [7351598-2], Motion to request or set oral argument [7351592-2] received from Attorney Joshua Marc Salzman for Appellants U.S. Department of Labor, U.S. Department of Health and Human Services, Secretary, U.S. Department of the Treasury, U.S. Department of the Treasury, Secretary, U.S. Department of Health and Human Services and Secretary, U.S. Department of Labor in 14-12890 is returned unfiled. [14-12890, 14-13239]
Oral argument scheduled. Argument Date: Wednesday, 02/04/2015 Argument Location: Atlanta. [14-12890, 14-13239]
Attorney James Ronald Williams, Jr. for Appellees The Roman Catholic Archdiocese of Atlanta, Wilton D Gregory, Catholic Charities of the Archdiocese of Atlanta, Inc., The Roman Catholic Diocese of Savannah and John Hartmayer in 14-12890, 14-13239 hereby acknowledges receipt of a copy of the printed calendar for 02/04/2015. Janine Cone Metcalf 404-581-8656 will present argument. [14-12890, 14-13239] (ECF: James Williams)
Attorney Joshua Marc Salzman for Appellants U.S. Department of Labor, U.S. Department of Health and Human Services, Secretary, U.S. Department of the Treasury, U.S. Department of the

Treasury, Secretary, U.S. Department of Health and Human Services and Secretary, U.S. Department of Labor in 14-12890, 14-13239 hereby acknowledges receipt of a copy of the printed calendar for 02/04/2015. Joshua M. Salzman, (202) 532-4747 will present argument. [14-12890, 14-13239] (ECF: Joshua Salzman)

01/28/2015
13 pg, 284.83 KB

Supplemental Authority filed by Appellees Catholic Charities of the Archdiocese of Atlanta, Inc., Wilton D Gregory, John Hartmayer and The Roman Catholic Archdiocese of Atlanta. (ECF: Janine Metcalf)

01/30/2015
4 pg, 17.47 KB

Response to Supplemental Authority (28J) filed by Appellants Secretary, U.S. Department of Health and Human Services, Secretary, U.S. Department of Labor, Secretary, U.S. Department of the Treasury, U.S. Department of Health and Human Services, U.S. Department of Labor and U.S. Department of the Treasury. (ECF: Joshua Salzman)

02/04/2015

Oral argument held. Oral Argument participants were Attorney Joshua Marc Salzman for Appellants U.S. Department of Labor, U.S. Department of Health and Human Services, Secretary, U.S. Department of the Treasury, U.S. Department of the Treasury, Secretary, U.S. Department of Health and Human Services and Secretary, U.S. Department of Labor in 14-12890, Attorney Janine Cone Metcalf for Appellees The Roman Catholic Archdiocese of Atlanta, Wilton D Gregory, Catholic Charities of the Archdiocese of Atlanta, Inc., The Roman Catholic Diocese of Savannah and John Hartmayer in 14-13239. [14-12890, 14-13239]

02/05/2015

Oral argument CD requested by Elizabeth Dobak.

1 pg, 178.66 KB

02/06/2015
1 pg, 39.24 KB

Oral argument CD requested by Joshua Marc Salzman for U.S. Department of Labor, U.S. Department of Health and Human Services, Secretary, U.S. Department of the Treasury, U.S. Department of the Treasury, Secretary, U.S. Department of Health and Human Services and Secretary, U.S. Department of Labor in 14-12890. [14-12890, 14-13239]

02/09/2015

Oral Argument CD sent to Elizabeth Dobak.

02/09/2015

Oral Argument CD sent to Joshua Marc Salzman for U.S. Department of Labor, U.S. Department of Health and Human Services, Secretary, U.S. Department of the Treasury, U.S. Department of the Treasury, Secretary, U.S. Department of Health and Human Services and Secretary, U.S. Department of Labor in 14-12890. [14-12890, 14-13239]

02/11/2015
52 pg, 409.42 KB

Supplemental Authority filed by Appellants Secretary, U.S. Department of Health and Human Services, Secretary, U.S. Department of Labor, Secretary, U.S. Department of the Treasury, U.S. Department of Health and Human Services, U.S. Department of Labor and U.S. Department of the Treasury. (ECF: Joshua Salzman)

02/12/2015
52 pg, 510.38 KB

Response to Supplemental Authority (28J) filed by Appellees Catholic Charities of the Archdiocese of Atlanta, Inc., Wilton D Gregory, John Hartmayer and The Roman Catholic Archdiocese of Atlanta. (ECF: Janine Metcalf)

02/18/2015

Oral argument CD requested by Gregory Baylor.

1 pg, 222.86 KB

03/11/2015
4 pg, 198.37 KB

Supplemental Authority filed by Appellees Catholic Charities of the Archdiocese of Atlanta, Inc., Wilton D Gregory, John Hartmayer and The Roman Catholic Archdiocese of Atlanta. (ECF: Janine Metcalf)

03/12/2015
3 pg, 91.61 KB

Response to Supplemental Authority (28J) filed by Appellants Secretary, U.S. Department of Health and Human Services, Secretary, U.S. Department of Labor, Secretary, U.S. Department of the Treasury, U.S. Department of Health and Human Services, U.S. Department of Labor and U.S. Department of the Treasury. (ECF: Joshua Salzman)

03/31/2015

Oral argument CD requested by Charles J. Gernazian.

1 pg, 175.98 KB

04/01/2015

Oral Argument CD sent to Charles J. Gernazian.

05/05/2015
4 pg, 186.79 KB

Supplemental Authority filed by Appellees Catholic Charities of the Archdiocese of Atlanta, Inc., Wilton D Gregory, John Hartmayer and The Roman Catholic Archdiocese of Atlanta. (ECF: Janine Metcalf)

05/06/2015
3 pg, 84.06 KB

Response to Supplemental Authority (28J) filed by Appellants Secretary, U.S. Department of Health and Human Services, Secretary, U.S. Department of Labor, Secretary, U.S. Department of the Treasury, U.S. Department of Health and Human Services, U.S. Department of Labor and U.S. Department of the Treasury. (ECF: Joshua Salzman)

05/20/2015
53 pg, 452.41 KB

Supplemental Authority filed by Appellants Secretary, U.S. Department of Health and Human Services, Secretary, U.S. Department of Labor, Secretary, U.S. Department of the Treasury, U.S. Department of Health and Human Services, U.S. Department

of Labor and U.S. Department of the Treasury. (ECF: Joshua Salzman)

05/21/2015
3 pg, 161.61 KB

Response to Supplemental Authority (28J) filed by Appellees Catholic Charities of the Archdiocese of Atlanta, Inc., Wilton D Gregory, John Hartmayer and The Roman Catholic Archdiocese of Atlanta. (ECF: Janine Metcalf)

06/24/2015
27 pg, 326.67 KB

Supplemental Authority filed by Appellants Secretary, U.S. Department of Health and Human Services, Secretary, U.S. Department of Labor, Secretary, U.S. Department of the Treasury, U.S. Department of Health and Human Services, U.S. Department of Labor and U.S. Department of the Treasury. (ECF: Joshua Salzman)

06/29/2015
3 pg, 165.48 KB

Response to Supplemental Authority (28J) filed by Appellees Catholic Charities of the Archdiocese of Atlanta, Inc., Wilton D Gregory, John Hartmayer and The Roman Catholic Archdiocese of Atlanta. (ECF: Janine Metcalf)

07/09/2015
20 pg, 281.34 KB

Supplemental Authority filed by Appellants Secretary, U.S. Department of Health and Human Services, Secretary, U.S. Department of Labor, Secretary, U.S. Department of the Treasury, U.S. Department of Health and Human Services, U.S. Department of Labor and U.S. Department of the Treasury. (ECF: Joshua Salzman)

07/14/2015

Supplemental Authority filed by Appellants Secretary, U.S.

135 pg, 490.32 KB Department of Health and Human Services, Secretary, U.S.

Department of Labor, Secretary, U.S. Department of the Treasury,

U.S. Department of Health and Human Services, U.S. Department

of Labor and U.S. Department of the Treasury. (ECF: Joshua

Salzman)

07/16/2015
3 pg, 165.91 KB

Response to Supplemental Authority (28J) filed by Appellees Catholic Charities of the Archdiocese of Atlanta, Inc., Wilton D Gregory, John Hartmayer and The Roman Catholic Archdiocese of Atlanta. (ECF: Janine Metcalf)

08/07/2015
49 pg, 269.96 KB

Supplemental Authority filed by Appellants Secretary, U.S. Department of Health and Human Services, Secretary, U.S. Department of Labor, Secretary, U.S. Department of the Treasury, U.S. Department of Health and Human Services, U.S. Department of Labor and U.S. Department of the Treasury. (ECF: Joshua Salzman)

08/07/2015

Notice of deficient filing sent to Joshua Marc Salzman for U.S. Department of Labor, U.S. Department of Health and Human

Services, Secretary, U.S. Department of the Treasury, U.S. Department of the Treasury, Secretary, U.S. Department of Health and Human Services and Secretary, U.S. Department of Labor. Supplemental Authority must also be filed in appeal no. 14-13239.

08/11/2015
3 pg, 162.37 KB

Response to Supplemental Authority (28J) filed by Appellees Catholic Charities of the Archdiocese of Atlanta, Inc., Wilton D Gregory, John Hartmayer and The Roman Catholic Archdiocese of Atlanta. (ECF: Janine Metcalf)

08/24/2015
2 pg, 76.97 KB

Supplemental Authority filed by Appellants Secretary, U.S. Department of Health and Human Services, Secretary, U.S. Department of Labor, Secretary, U.S. Department of the Treasury, U.S. Department of Health and Human Services, U.S. Department of Labor and U.S. Department of the Treasury. (ECF: Joshua Salzman)

09/11/2015
2 pg, 74.9 KB

Supplemental Authority filed by Appellants Secretary, U.S. Department of Health and Human Services, Secretary, U.S. Department of Labor, Secretary, U.S. Department of the Treasury, U.S. Department of Health and Human Services, U.S. Department of Labor and U.S. Department of the Treasury. (ECF: Joshua Salzman)

09/18/2015
42 pg, 463.78 KB

Supplemental Authority filed by Appellees Catholic Charities of the Archdiocese of Atlanta, Inc., Wilton D Gregory, John Hartmayer and The Roman Catholic Archdiocese of Atlanta. (ECF: Janine Metcalf)

11/09/2015
2 pg, 75.51 KB

Supplemental Authority filed by Appellants Secretary, U.S. Department of Health and Human Services, Secretary, U.S. Department of Labor, Secretary, U.S. Department of the Treasury, U.S. Department of Health and Human Services, U.S. Department of Labor and U.S. Department of the Treasury. (ECF: Joshua Salzman)

02/18/2016

***VACATED pursuant to 5/31/2016 Court Order***Opinion issued by court as to Appellants Secretary, U.S. Department of Health and Human Services, Secretary, U.S. Department of Labor, Secretary, U.S. Department of the Treasury, U.S. Department of Health and Human Services, U.S. Department of Labor and U.S. Department of the Treasury in 14-13239. Decision: Affirmed in part and Reversed in part. Opinion type: Published. Opinion method: Signed. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions. [14-12696, 14-12890, 14-13239]--[Edited 06/02/2016 by JC]

02/18/2016

Judgment entered as to Appellant Eternal Word Television Network, Inc. in 14-12696, Appellants Secretary, U.S. Department of Health and Human Services, Secretary, U.S. Department of Labor, Secretary, U.S. Department of the Treasury, U.S. Department of Health and Human Services, U.S. Department of Labor and U.S. Department of the Treasury in 14-12890, 1413239. [14-12696, 14-12890, 14-13239]

03/31/2016
14 pg, 425.79 KB

TIME SENSITIVE MOTION for extension of time to file request for rehearing to 05/04/2016 filed by Catholic Charities of the Archdiocese of Atlanta, Inc., Wilton D Gregory, John Hartmayer, The Roman Catholic Archdiocese of Atlanta and The Roman Catholic Diocese of Savannah. Motion is Unopposed. [77403061] (ECF: James Williams)

04/01/2016
3 pg, 26.77 KB

ORDER: Plaintiff-Appellant's and Plaintiffs-Appellees' motion for extension of time to file a petition for rehearing en banc, up to and including May 4, 2016, is GRANTED. [7740305-2] [7740306-2] [7740307-2] (JP) [14-12696, 14-12890, 14-13239]

05/04/2016

***Moot-see 5/31/16 Order***Petition for rehearing en banc (with panel rehearing) filed by Appellees Catholic Charities of the Archdiocese of Atlanta, Inc., Wilton D Gregory, John Hartmayer and The Roman Catholic Archdiocese of Atlanta.--[Edited 06/02/2016 by JC] (ECF: Janine Metcalf)

05/16/2016
1 pg, 56.04 KB

APPEARANCE of Counsel Form filed by Jonathan Keim for the Dominican Sisters of Mary, Mother of the Eucharist; Sisters of Life; and Judicial Education Project (ECF: Jonathan Keim)

05/16/2016
31 pg, 325.14 KB

MOTION for leave to file amicus brief in support of rehearing pursuant to FRAP 29(a) filed by Jonathan Keim for the Dominican Sisters of Mary, Mother of the Eucharist; Sisters of Life; and Judicial Education Project. [7782913-1] (ECF: Jonathan Keim)

05/17/2016

E-filed Appearance of Counsel processed for Attorney Jonathan S. Keim for Not Party Sisters of Life in 14-12696, Attorney Jonathan S. Keim for Not Party Mother of the Eucharist in 14-12696, Attorney Jonathan S. Keim for Not Party Judicial Education Project in 14-12696, Attorney Jonathan S. Keim for Not Party Dominican Sisters of Mary in 14-12696. [14-12696, 14-12890]

05/20/2016
6 pg, 74.71 KB

Supplemental Authority filed by Appellees Catholic Charities of the Archdiocese of Atlanta, Inc., Wilton D Gregory, John Hartmayer and The Roman Catholic Archdiocese of Atlanta. (ECF: Janine Metcalf)

05/24/2016
15 pg, 198.29 KB

Notification of the Supreme Court's decision in Zubik v. Burwell, as directed in this Court's decision of February 18, 2016 filed by Attorney Joshua Marc Salzman for Appellants U.S. Department of Labor, U.S. Department of Health and Human Services, Secretary, U.S. Department of the Treasury, U.S. Department of the Treasury, Secretary, U.S. Department of Health and Human Services and Secretary, U.S. Department of Labor. (ECF: Joshua Salzman)

05/31/2016
6 pg, 35.06 KB

ORDER: Given the Zubik decision, we VACATE our February 18, 2016 opinion in these cases so that we may consider supplemental briefing from the parties. We direct the parties to submit supplemental briefs. The plaintiffs' opening supplemental brief shall be due 21 days from the date of this order. The plaintiffs shall file a single opening brief of no more than 7,000 words. The government's responsive supplemental brief shall be due 21 days from the filing of the opening supplemental brief. The government shall file a single responsive brief of no more than 7,000 words. The plaintiffs' supplemental brief in reply shall be due 10 days after the filing of the government's responsive supplemental brief. The plaintiffs shall file a single reply brief of no more than 3,500 words. We continue to enjoin the Secretary of Health and Human Services from enforcing against EWTN, Catholic Charities, and CENGI the substantive requirements set forth in 42 U.S.C. 300gg-13(a)(4) and from assessing fines or taking other enforcement action against EWTN, Catholic Charities, or CENGI for non-compliance. This stay shall remain in effect until further order of the Court. (GBT, JP and RLA) [1412696, 14-12890, 14-13239]

06/01/2016
2 pg, 63.9 KB

APPEARANCE of Counsel Form filed by Richard B. Katskee for Americans United for Separation of Church and State, American Civil Liberties Union, American Civil Liberties Union of Georgia (ECF: Richard Katskee)

06/01/2016

Added Attorney Richard Brian Katskee for Amicus Curiae Americans United for Separation of Church and State, Amicus Curiae American Civil Liberties Union and Amicus Curiae American Civil Liberties Union of Georgia. [14-12890, 14-13239]

06/03/2016

E-filed Appearance of Counsel processed for Attorney Richard Brian Katskee for Amicus Curiae Americans United for Separation of Church and State in 14-12890, Attorney Richard Brian Katskee for Amicus Curiae American Civil Liberties Union of Georgia in 14-12890, Attorney Richard Brian Katskee for Amicus Curiae American Civil Liberties Union in 14-12890. [1412890, 14-13239]

06/07/2016
17 pg, 216.5 KB

TIME SENSITIVE MOTION for extension of time to file brief pursuant to rule 31-2(b) up to and including 08/22/2016 filed by Catholic Charities of the Archdiocese of Atlanta, Inc., Wilton D Gregory, John Hartmayer, The Roman Catholic Archdiocese of Atlanta and The Roman Catholic Diocese of Savannah. Joint Stipulation of Parties. [7806183-1] (ECF: Edward Smith)

06/13/2016
3 pg, 26.77 KB

ORDER: The "Joint Time-Sensitive Consent Motion for Extension of Time to File Supplemental Briefing" is GRANTED. The Plaintiffs' initial supplemental brief is due August 22, 2016. [7806222-2] [7806183-2] [7806185-2] (GBT) [14-12696, 1412890, 14-13239]

07/29/2016
18 pg, 162.92 KB

TIME SENSITIVE MOTION to stay further appellate proceedings filed by Catholic Charities of the Archdiocese of Atlanta, Inc., Wilton D Gregory, John Hartmayer, The Roman Catholic Archdiocese of Atlanta and The Roman Catholic Diocese of Savannah. Joint Stipulation of Parties. [7868468-1] (ECF: James Williams)

07/29/2016

Notice of deficient Motion filed by James Ronald Williams, Jr. for The Roman Catholic Archdiocese of Atlanta, Wilton D Gregory, Catholic Charities of the Archdiocese of Atlanta, Inc., The Roman Catholic Diocese of Savannah and John Hartmayer in 14-12890, 14-13239. Motion must also be filed in appeal no. 14-12696. [1412890, 14-13239]

08/10/2016
3 pg, 25.22 KB

ORDER: Motion to stay further appellate proceedings filed by Appellant Eternal Word Television Network, Inc. is GRANTED. [7868601-2] in 14-12696, Motion to stay further appellate proceedings filed by Appellees The Roman Catholic Archdiocese of Atlanta, Wilton D Gregory, Catholic Charities of the Archdiocese of Atlanta, Inc., The Roman Catholic Diocese of Savannah and John Hartmayer is GRANTED. [7868468-2] in 1412890, Motion to stay further appellate proceedings filed by Appellees The Roman Catholic Archdiocese of Atlanta, Wilton D Gregory, Catholic Charities of the Archdiocese of Atlanta, Inc., The Roman Catholic Diocese of Savannah and John Hartmayer is GRANTED. [7868474-2] in 14-13239. The parties are directed to file a status report sixty days from the date of this Order. JP [1412696, 14-12890, 14-13239]

08/10/2016
69 pg, 380.47 KB

MOTION for order materially identical to the remand orders that the Supreme Court issued in Zubik v. Burwell filed by Secretary, U.S. Department of Health and Human Services, Secretary, U.S. Department of Labor, Secretary, U.S. Department of the Treasury, U.S. Department of Health and Human Services, U.S. Department

of Labor and U.S. Department of the Treasury. Motion is Opposed. [7878038-1] (ECF: Joshua Salzman)

08/22/2016
23 pg, 107.64 KB

RESPONSE to Motion filed by Appellants U.S. Department of Labor, U.S. Department of Health and Human Services, Secretary, U.S. Department of the Treasury, U.S. Department of the Treasury, Secretary, U.S. Department of Health and Human Services and Secretary, U.S. Department of Labor in 14-12890 [7878038-2] filed by Attorney James Ronald Williams, Jr. for Appellees The Roman Catholic Archdiocese of Atlanta, Wilton D Gregory, Catholic Charities of the Archdiocese of Atlanta, Inc., The Roman Catholic Diocese of Savannah and John Hartmayer. (ECF: James Williams)

08/30/2016
14 pg, 107.47 KB

Reply to response filed by Appellants Secretary, U.S. Department of Health and Human Services, Secretary, U.S. Department of Labor, Secretary, U.S. Department of the Treasury, U.S. Department of Health and Human Services, U.S. Department of Labor and U.S. Department of the Treasury. (ECF: Joshua Salzman)

08/31/2016
6 pg, 393.54 KB

Supplemental Authority filed by Appellants Secretary, U.S. Department of Health and Human Services, Secretary, U.S. Department of Labor, Secretary, U.S. Department of the Treasury, U.S. Department of Health and Human Services, U.S. Department of Labor and U.S. Department of the Treasury. (ECF: Joshua Salzman)

09/08/2016
5 pg, 73.15 KB

Response to Supplemental Authority (28J) filed by Appellees Catholic Charities of the Archdiocese of Atlanta, Inc., Wilton D Gregory, John Hartmayer and The Roman Catholic Archdiocese of Atlanta. (ECF: Janine Metcalf)

09/14/2016
13 pg, 152.73 KB

Supplemental Authority filed by Appellants Secretary, U.S. Department of Health and Human Services, Secretary, U.S. Department of Labor, Secretary, U.S. Department of the Treasury, U.S. Department of Health and Human Services, U.S. Department of Labor and U.S. Department of the Treasury. (ECF: Joshua Salzman)

09/16/2016
5 pg, 55.78 KB

Response to Supplemental Authority (28J) filed by Appellees Catholic Charities of the Archdiocese of Atlanta, Inc., Wilton D Gregory, John Hartmayer, The Roman Catholic Archdiocese of Atlanta and The Roman Catholic Diocese of Savannah. (ECF: James Williams)

09/19/2016

Supplemental Authority filed by Appellants Secretary, U.S.

6 pg, 111.33 KB Department of Health and Human Services, Secretary, U.S.

Department of Labor, Secretary, U.S. Department of the Treasury, U.S. Department of Health and Human Services, U.S. Department of Labor and U.S. Department of the Treasury. (ECF: Joshua Salzman)

10/03/2016
5 pg, 178.23 KB

ORDER: These cases are before the Court on the government's motion requesting that the Court issue an order materially identical to the remand orders issued by the Supreme Court in Zubik v. Burwell. The motion is GRANTED. See Order for complete text. [7878032-2] [7878038-2] [7878044-2] (GBT, JP and RLA) [14-12696, 14-12890, 14-13239]

10/11/2016
3 pg, 83.66 KB

Status report filed as to Attorney Joshua Marc Salzman for Appellants U.S. Department of Labor, U.S. Department of Health and Human Services, Secretary, U.S. Department of the Treasury, U.S. Department of the Treasury, Secretary, U.S. Department of Health and Human Services and Secretary, U.S. Department of Labor. Status of case is unchanged (ECF: Joshua Salzman)

10/11/2016
12 pg, 182.64 KB

Status report filed as to Attorney James Ronald Williams, Jr. for Appellees The Roman Catholic Archdiocese of Atlanta, Wilton D Gregory, Catholic Charities of the Archdiocese of Atlanta, Inc., The Roman Catholic Diocese of Savannah and John Hartmayer. Status of case is unchanged (ECF: James Williams)

10/14/2016
1 pg, 69.08 KB

APPEARANCE of Counsel Form filed by Laura Myron for HHS Secretary Sylvia Burwell; U.S. Department of HHS; Labor Secretary Thomas Perez; U.S. Department of Labor; Treasury Secretary Jacob Lew; U.S. Department of Treasury (ECF: Laura Myron)

12/12/2016
12 pg, 180.95 KB

Status report filed as to Attorney James Ronald Williams, Jr. for Appellees The Roman Catholic Archdiocese of Atlanta, Wilton D Gregory, Catholic Charities of the Archdiocese of Atlanta, Inc., The Roman Catholic Diocese of Savannah and John Hartmayer. Status of case is unchanged (ECF: James Williams)

01/10/2017
3 pg, 86.16 KB

Status report filed as to Attorney Joshua Marc Salzman for Appellants U.S. Department of Labor, U.S. Department of Health and Human Services, Secretary, U.S. Department of the Treasury, U.S. Department of the Treasury, Secretary, U.S. Department of Health and Human Services and Secretary, U.S. Department of Labor. Status of case is unchanged (ECF: Joshua Salzman)

01/20/2017

Added Attorney(s) Carrie Lynn Severino for party(s) Not Party Dominican Sisters of Mary Not Party Sisters of Life Not Party Judicial Education Project Not Party Mother of the Eucharist, in case 14-12890 Attorney(s) Carrie Lynn Severino for party(s) Not

Party Dominican Sisters of Mary Not Party Sisters of Life Not Party Judicial Education Project Not Party Mother of the Eucharist, in case 14-12696. [14-12696, 14-12890, 14-13239]

01/20/2017

MOTION to appear pro hac vice filed by Attorney Carrie Lynn Severino for Not Parties Dominican Sisters of Mary, Mother of the Eucharist, Sisters of Life and Judicial Education Project in 14-12696. [8022400-1][14-12696, 14-12890, 14-13239]

01/25/2017
3 pg, 45.18 KB

ORDER: Motion to appear pro hac vice filed by Carrie Lynn Severino is GRANTED. [8022400-2] JP [14-12696, 14-12890, 14-13239]

01/25/2017
1 pg, 78.48 KB

APPEARANCE of Counsel Form filed by Attorney Carrie Lynn Severino for Not Party Sisters of Life in 14-12696, Attorney Carrie Lynn Severino for Not Party Mother of the Eucharist in 1412696, Attorney Carrie Lynn Severino for Not Party Judicial Education Project in 14-12696, Attorney Carrie Lynn Severino for Not Party Dominican Sisters of Mary in 14-12696. [14-12696, 1412890, 14-13239]

02/28/2017
14 pg, 187.12 KB

Status report CONSTRUED as Motion for Extension of Time to File the Next Status Report filed as to Attorney James Ronald Williams, Jr. for Appellees The Roman Catholic Archdiocese of Atlanta, Wilton D Gregory, Catholic Charities of the Archdiocese of Atlanta, Inc., The Roman Catholic Diocese of Savannah and John Hartmayer. Status of case is unchanged. Opposition to Motion is Unknown [8055889-1]--[Edited 03/06/2017 by JFC] (ECF: James Williams)

03/01/2017

E-filed Appearance of Counsel processed for Attorney Carrie Lynn Severino for Not Party Sisters of Life in 14-12890, Attorney Carrie Lynn Severino for Not Party Mother of the Eucharist in 1412890, Attorney Carrie Lynn Severino for Not Party Judicial Education Project in 14-12890, Attorney Carrie Lynn Severino for Not Party Dominican Sisters of Mary in 14-12890. [14-12890, 1412696, 14-13239]

03/09/2017
4 pg, 25.77 KB

ORDER: The parties’ Status Reports, CONSTRUED as motions for an extension of time to file the next status reports to May 1, 2017, are GRANTED. The parties are further directed to file a status report on the 15th of every month thereafter. [8055963-2] [8055889-2] [8055892-2] JP [14-12696, 14-12890, 14-13239]

05/01/2017
3 pg, 89.79 KB

Status report filed as to Attorney Joshua Marc Salzman for Appellants U.S. Department of Labor, U.S. Department of Health and Human Services, Secretary, U.S. Department of the Treasury, U.S. Department of the Treasury, Secretary, U.S. Department of

Health and Human Services and Secretary, U.S. Department of Labor. Status of case is unchanged (ECF: Joshua Salzman)

05/01/2017
14 pg, 150.6 KB

Status report filed as to Attorney James Ronald Williams, Jr. for Appellees The Roman Catholic Archdiocese of Atlanta, Wilton D Gregory, Catholic Charities of the Archdiocese of Atlanta, Inc., The Roman Catholic Diocese of Savannah and John Hartmayer. Status of case is unchanged (ECF: James Williams)

06/02/2017
13 pg, 150.52 KB

MOTION to withdraw as counsel filed by Attorney James Ronald Williams, Jr. for Appellees The Roman Catholic Archdiocese of Atlanta, Wilton D Gregory, Catholic Charities of the Archdiocese of Atlanta, Inc., The Roman Catholic Diocese of Savannah and John Hartmayer. Motion is Unopposed [8147607-1] (ECF: James Williams)

06/15/2017
14 pg, 155.46 KB

Status report filed as to Attorney Janine Cone Metcalf for Appellees The Roman Catholic Archdiocese of Atlanta, Wilton D Gregory, Catholic Charities of the Archdiocese of Atlanta, Inc. and John Hartmayer. Status of case is unchanged (ECF: Janine Metcalf)

06/15/2017
3 pg, 106.78 KB

Status report filed as to Attorney Joshua Marc Salzman for Appellants U.S. Department of Labor, U.S. Department of Health and Human Services, Secretary, U.S. Department of the Treasury, U.S. Department of the Treasury, Secretary, U.S. Department of Health and Human Services and Secretary, U.S. Department of Labor. Status of case is unchanged (ECF: Joshua Salzman)

06/19/2017

Notice of deficient Motion filed by James Ronald Williams, Jr. for The Roman Catholic Archdiocese of Atlanta, Wilton D Gregory, Catholic Charities of the Archdiocese of Atlanta, Inc., The Roman Catholic Diocese of Savannah and John Hartmayer in 14-12890. Document does not contain a Certificate of Compliance, see FRAP 32(g)(1). Counsel must file a corrected motion using the Amend, Correct or Supplement Motion event within 3 days. [1413239, 14-12890]

06/20/2017

Corrected Motion to withdraw as counsel [8147607-2] filed by

14 pg, 150.07 KB Appellee The Roman Catholic Archdiocese of Atlanta. (ECF:

Janine Metcalf)

06/21/2017
3 pg, 22.95 KB

ORDER: Appellees’ Unopposed Motion to Withdraw Attorney James Williams as Counsel is GRANTED. [8147610-2] 14-13239 [8147607-2] 14-12890 JP [14-13239, 14-12890]

06/28/2017

Removed from case: Attorney Jonathan S. Keim for Not Parties Sisters of Life, Mother of the Eucharist, Judicial Education

Project, and Dominican Sisters of Mary in 14-12890. [14-12890, 14-13239]

07/17/2017
3 pg, 197.45 KB

Status report filed as to Attorney Joshua Marc Salzman for Appellants U.S. Department of Labor, U.S. Department of Health and Human Services, Secretary, U.S. Department of the Treasury, U.S. Department of the Treasury, Secretary, U.S. Department of Health and Human Services and Secretary, U.S. Department of Labor. Status of case is unchanged (ECF: Joshua Salzman)

07/17/2017
13 pg, 149.74 KB

Status report filed as to Attorney Brian Charles Lea for Appellees The Roman Catholic Archdiocese of Atlanta and Catholic Charities of the Archdiocese of Atlanta, Inc.. Status of case is unchanged (ECF: Brian Lea)

08/15/2017
13 pg, 149.75 KB

Status report filed as to Attorney Brian Charles Lea for Appellees The Roman Catholic Archdiocese of Atlanta, Wilton D Gregory, Catholic Charities of the Archdiocese of Atlanta, Inc., The Roman Catholic Diocese of Savannah and John Hartmayer. Status of case is unchanged (ECF: Brian Lea)

08/22/2017
3 pg, 89.83 KB

Status report filed as to Attorney Patrick Nemeroff for Appellants U.S. Department of Labor, U.S. Department of Health and Human Services, Secretary, U.S. Department of the Treasury, U.S. Department of the Treasury, Secretary, U.S. Department of Health and Human Services and Secretary, U.S. Department of Labor. Status of case is unchanged (ECF: Patrick Nemeroff)

09/15/2017
3 pg, 90.22 KB

Status report filed as to Attorney Joshua Marc Salzman for Appellants U.S. Department of Labor, U.S. Department of Health and Human Services, Secretary, U.S. Department of the Treasury, U.S. Department of the Treasury, Secretary, U.S. Department of Health and Human Services and Secretary, U.S. Department of Labor. Status of case is unchanged (ECF: Joshua Salzman)

09/15/2017
13 pg, 149.82 KB

Status report filed as to Attorney Brian Charles Lea for Appellees The Roman Catholic Archdiocese of Atlanta, Wilton D Gregory, Catholic Charities of the Archdiocese of Atlanta, Inc., The Roman Catholic Diocese of Savannah and John Hartmayer. Status of case is unchanged (ECF: Brian Lea)

10/16/2017
14 pg, 44.64 KB

MOTION to voluntarily dismiss appeal filed by Secretary, U.S. Department of Health and Human Services, Secretary, U.S. Department of Labor, Secretary, U.S. Department of the Treasury, U.S. Department of Health and Human Services, U.S. Department of Labor and U.S. Department of the Treasury. Joint Stipulation of Parties. [8271862-1] (ECF: Patrick Nemeroff)

11/07/2017
3 pg, 91.8 KB

ORDER: Motion to voluntarily dismiss appeal filed by Appellants U.S. Department of Labor, U.S. Department of Health and Human Services, Secretary, U.S. Department of the Treasury, U.S. Department of the Treasury, Secretary, U.S. Department of Health and Human Services and Secretary, U.S. Department of Labor is GRANTED. [8271862-2] in 14-12890, Motion to voluntarily dismiss appeal filed by Appellants U.S. Department of Labor, U.S. Department of Health and Human Services, Secretary, U.S. Department of the Treasury, U.S. Department of the Treasury, Secretary, U.S. Department of Health and Human Services and Secretary, U.S. Department of Labor is GRANTED. [8271866-2] in 14-13239 GBT, JP and RLA [14-12890, 14-13239]

 
 Case: 14-12696 Date Filed: 10/03/2016 Page: 1 of 4 IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 14-12696

ETERNAL WORD TELEVISION NETWORK,INC.,

Plaintiff- Appellant,

versus
SECRETARY OF THE U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, SECRETARY OF THE U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF LABOR, SECRETARY OF THE U.S. DEPARTMENT OF THE TREASURY, U.S. DEPARTMENT OF THE TREASURY,
Defendants - Appellees.

Appeals from the United States District Court
for the Southern District of Alabama

Nos. 14-12890; 14-13239

THE ROMAN CATHOLIC ARCHDIOCESE OF ATLANTA,
an association ofchurches and scho(^

Case: 14-12696 Date Filed: 10/03/2016 Page: 2 of 4
THE MOST REVEREND WILTON D.GREGORY, and his successors. Archbishop ofthe Roman Catholic Archdiocese of Atlanta,
CATHOLIC CHARITIES OF THE ARCHDIOCESE
OF ATLANTA,INC.,
a Georgia non-profit corporation, THE ROMAN CATHOLIC DIOCESE OF SAVANNAH, an ecclesiastical territory,
THE MOST REVEREND JOHN HARTMAYER,
and his successors. Bishop ofthe Roman Catholic Diocese ofSavannah,et al..
Plaintiffs - Appellees,
versus
SECRETARY,U.S.DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY, SECRETARY,U.S.DEPARTMENT OF LABOR, SECRETARY,U.S.DEPARTMENT OF TREASURY,
Defendants - Appellants.
Appeals from the United States District Court for the Northern District ofGeorgia
Before TJOFLAT,JILL PRYOR and ANDERSON,Circuit Judges.
BY THE COURT:
These cases are before the Court on the government's motion requesting that
the Court issue an order materially identical to the remand orders issued by the

Case: 14-12696 Date Filed: 10/03/2016 Page: 3 of 4
Supreme Court in Zubik v. Burwell, 136S.Ct. 1557(2016),and other related cases
presenting the same issue. After the Supreme Court's decision in Zubik, we
entered an order continuing to enjoin the government from enforcing against the
plaintiffs the substantive requirements of42 U.S.C.§ 300gg-13(a)(4)and from
assessing penalties or taking other actions against the plaintiffs for non-
compliance. In its motion,the government asks us to clarify that under the
injunction it may notify plaintiffs' third-party administrators oftheir obligation to
make separate payments for contraceptives under the accommodation. The motion
is GRANTED.
As such, we modify the injunction entered on May 31,2016 to add that:
Nothing in this opinion,[in this Court's prior opinion or orders], or in the opinions or orders ofthe courts below,is to affect the ability ofthe Government to ensure that women covered by the [plaintiffs'] health plans "obtain, without cost, the full range of FDA approved contraceptives." Through this litigation, [plaintiffs] have made the Government aware of their view that they meet "the requirements for exemption from the contraceptive coverage requirement on religious grounds." Nothing in this opinion, [in this Court's prior opinions or orders], or in the opinions or orders of the courts below, "precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision offrill contraceptive coverage" going forward. Because the Government may rely on this notice, the Government may not impose taxes or penalties on [plaintiffs] for failure to provide the relevant notice.
Zubik, 136 S. Ct. at 1560-61 (quoting Wheaton College v. Burwell, 134 S. Ct.
2806,2807(2014));accord Mich. Catholic Conference v. Burwell, 136 S. Ct.2450
(2016); Catholic Health Care Sys. v. Burwell, 136 S. Ct.2450(2016); Grace Sch.
3

Case: 14-12696 Date Filed: 10/03/2016 Page: 4 of 4
V. Burwell, 136 S. Ct.2011(2016);Diocese ofFort Wayne-South Bend,Inc. v. Burwelh 136 S. Ct.2010(2016); Univ. ofDallas v. Burwell, 136 S. Ct.2008 (2016); Univ. ofNotre Dame v. BurwelU 136 S. Ct.2007(2016);Dept. ofHealth & Human Servs. v. CNSInt'l Ministries, 136 S.Ct. 2006(2016);Burwell v. Dordt
Coll., 136 S.Ct.2006(2016).'
'The plaintiffs contend that we should deny the government's motion as untimely imder
our local rules. But even ifthe government's motion was untimely,the plaintiffs present no compelling reason why we lack the inherent authority to modify our injunction.

Case: 14-12696 Date Filed: 10/03/2016 Page: 1 of 1

David J. Smith Clerk of Court

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303
October 03, 2016

For rules and forms visit www.ca11.uscourts.gov

MEMORANDUM TO COUNSEL OR PARTIES

Appeal Number: 14-12696-CC ; 14-12890 -CC ; 14-13239 -CC Case Style: Eternal Word Television Networ v. U.S. Department of Health and, et al District Court Docket No: 1:13-cv-00521-CG-C

This Court requires all counsel to file documents electronically using the Electronic Case Files ("ECF") system, unless exempted for good cause.
The enclosed order has been ENTERED.
Sincerely,
DAVID J. SMITH, Clerk of Court
Reply to: Joe Caruso Phone #: (404) 335-6177

MOT-2 Notice of Court Action

 
 Case: 14-12890 Date Filed: 11/07/2017 Page: 1 of 1

David J. Smith Clerk of Court

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303
November 07, 2017

For rules and forms visit www.ca11.uscourts.gov

James N. Hatten Richard B. Russell Bldg & US Courthouse 2211 UNITED STATES COURTHOUSE 75 TED TURNER DR SW STE 2211 ATLANTA, GA 30303-3309
Appeal Number: 14-12890-CC ; 14-13239 -CC Case Style: The Roman Catholic Archdiocese, et al v. Sec, US Dept HHS, et al District Court Docket No: 1:12-cv-03489-WSD

The enclosed copy of this Court's Order of Dismissal is issued as the mandate of this court. See 11th Cir. R. 41-4. Counsel and pro se parties are advised that pursuant to 11th Cir. R. 27-2, "a motion to reconsider, vacate, or modify an order must be filed within 21 days of the entry of such order. No additional time shall be allowed for mailing."
Sincerely,
DAVID J. SMITH, Clerk of Court
Reply to: Julie F. Cohen, CC/lt Phone #: (404) 335-6170
Enclosure(s)

DIS-4 Multi-purpose dismissal letter

Case: 14-12890 Date Filed: 11/07/2017 Page: 1 of 2
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 14-12890-CC
THE ROMAN CATHOLIC ARCHDIOCESE
OF ATLANTA, an association ofchurches and schools, THE MOST REVEREND WILTON D GREGORY, and his successors. Archbishop ofthe Roman Catholic Archdiocese of Atlanta, CATHOLIC CHARITIES OF THE ARCHDIOCESE OF ATLANTA,INC.,
a Georgia non-profit corporation,
THE ROMAN CATHOLIC DIOCESE OF SAVANNAH, an ecclesiastical territory, THE MOST REVEREND JOHN HARTMAYER, and his successors. Bishop ofThe Roman Catholic Diocese ofSavannah,et al..
Plaintiffs - Appellees,
versus
SECRETARY,U.S.DEPARTMENT OF HEALTH AND HUMAN SERVICES,
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY, SECRETARY,U.S.DEPARTMENT OF LABOR, SECRETARY,U.S.DEPARTMENT OF TREASURY,
Defendants - Appellants.
No. 14-13239-CC
THE ROMAN CATHOLIC ARCHDIOCESE OF ATLANTA, an association ofchurches and schools, THE MOST REVEREND WILTON D GREGORY,
and his successors. Archbishop ofThe Roman Catholic Archdiocese of Atlanta,

Case: 14-12890 Date Filed: 11/07/2017 Page: 2 of 2
CATHOLIC CHARITIES OF THE ARCHDIOCESE OF ATLANTA,INC.,
a Georgia non-profit corporation,
THE ROMAN CATHOLIC DIOCESE OF SAVANNAH, an ecclesiastical territory, THE MOST REVEREND JOHN HARTMAYER,
and his successors.Bishop ofthe Roman Catholic
Diocese ofSavannah,
Plaintiffs - Appellees,
CHRIST THE KING CATHOLIC SCHOOL,et al,.
Plaintiffs,
versus
SECRETARY OF THE U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S.DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF THE TREASURY, SECRETARY OF THE U.S. DEPARTMENT OF LABOR, SECRETARY OF THE U.S. DEPARTMENT OF THE TREASURY,
Defendants - Appellants.
Appeals from the United States District Court
for the Northern District ofGeorgia
Before: TJOFLAT,JILL PRYOR,and ANDERSON,Circuit Judges.
BY THE COURT:
Appellants' motions to dismiss appealjSlosv 14-12890 and 14-13239 are GRANTED.

 
 Case: 14-12890 Date Filed: 08/10/2016 Page: 1 of 17
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

ETERNAL WORD TELEVISION NETWORK, INC.,
Plaintiff-Appellant,
v.
SECRETARY OF THE U.S. DEPARMENT OF HEALTH & HUMAN SERVICES, et al.,
Defendants-Appellees.

No. 14-12696

THE ROMAN CATHOLIC ARCHDIOCESE OF ATLANTA, et al.,
Plaintiffs-Appellees,
v.
SECRETARY, U.S. DEPARMENT OF HEALTH & HUMAN SERVICES, et al.,
Defendants-Appellants.

Nos. 14-12890 & 14-13239

Case: 14-12890 Date Filed: 08/10/2016 Page: 2 of 17
AMENDED CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT
Pursuant to 11th Cir. R. 26.1-1, the undersigned counsel certifies that, to the best of our knowledge, the following persons and entities may have an interest in the outcome of these cases. Persons and entities listed below who were not identified in a CIP previously filed by at least one of the parties are indicated in bold.
ACLU of Alabama Foundation, Inc. Alabama Physicians For Life Alliance Community for Retirement Living, Inc. Alliance Home of Carlisle, Pennsylvania American Association of Pro-Life Obstetricians & Gynecologists American Bible Society American Civil Liberties Union American Civil Liberties Union of Alabama American Civil Liberties Union of Georgia American Federation of State, County and Municipal Employees Americans United for Life Americans United for Separation of Church and State Amiri, Brigitte Association of American Physicians & Surgeons, Inc. Association of Christian Schools International

Case: 14-12890 Date Filed: 08/10/2016 Page: 3 of 17
Association of Gospel Rescue Missions Ave Maria University Barbero, Megan Bennett, Michelle R. The Becket Fund for Religious Liberty Blomberg, Daniel Howard Bondi, Pam Branda, Joyce R. Brasher, Andrew L. Brennan & Wasden, LLP Brinkmann, Beth C. Brown, Kenyen R. Burnette, Jason Burwell, Sylvia M. Carmelite Sisters of the Most Sacred Heart of Los Angeles Cassady, William E. (Magistrate Judge) Catholic Charities of the Archdiocese of Atlanta, Inc. Catholic Education of North Georgia, Inc. Catholic Medical Association Center for Law & Religious Freedom
ii

Case: 14-12890 Date Filed: 08/10/2016 Page: 4 of 17
Christ the King Catholic School Christian Legal Society Christian Medical Association Christian and Missionary Alliance Foundation, Inc. Colby, Kimberlee Wood Crown College Davidow, Charles E. Delery, Stuart F. Dewart, Deborah J. Dominican Sisters of Mary Duffey Jr., William S. Duncan, Stuart Kyle Dys, Jeremiah Grant Eternal Word Television Network, Inc. Ethics & Religious Liberty Commission of the Southern
Baptist Convention First Liberty Institute Florida Association of Planned Parenthood Affiliates, Inc. Forte, Stephen M. Gibson Dunn & Crutcher LLP Granade, Callie V.S.
iii

Case: 14-12890 Date Filed: 08/10/2016 Page: 5 of 17
Humphreys, Bradley Philip Hungar, Thomas G. Institutional Religious Freedom Alliance Jed, Adam C. Jones Day Judicial Education Project Katskee, Richard B. Keim, Jonathan S. Khan, Ayesha N. Kirkpatrick, Megan A. Klein, Alisa B. Lea, Brian Lee, Jennifer Legal Momentum Lew, Jacob Lieber, Sheila Liberty, Life, and Law Foundation The Lutheran Church—Missouri Synod Mach, Daniel Marshall, Randall C. Metcalf, Janine Cone
iv

Case: 14-12890 Date Filed: 08/10/2016 Page: 6 of 17
Mizer, Benjamin C. Monde, David Moss Mother of the Eucharist NARAL Pro-Choice America National Association of Catholic Nurses National Association of Evangelicals National Association of Pro Life Nurses The National Catholic Bioethics Center National Family Planning and Reproductive Health Association National Latina Institute for Reproductive Health National Women’s Health Network National Women’s Law Center Nemeroff, Patrick G. Olens, Sam Parker, Jr., William G. Paul Weiss Rifkind Wharton & Garrison LLP Perez, Thomas Planned Parenthood Southeast, Inc. Population Connection Prison Fellowship Ministries Rassbach, Eric
v

Case: 14-12890 Date Filed: 08/10/2016 Page: 7 of 17
Religious Sisters of Mercy of Alma, Michigan Ricketts, Jennifer Rienzi, Mark Salzman, Joshua M. Scalia, Eugene Schaerr | Duncan LLP Service Employees International Union Simpson University Sisters of Life Smith, Gambrell & Russell, LLP Smith, E. Kendrick Smith, Mailee R. Strange, Luther State of Alabama State of Florida State of Georgia Stern, Mark B. The Most Reverend John Hartmayer The Most Reverend Wilton D. Gregory The Roman Catholic Archdiocese of Atlanta The Roman Catholic Diocese of Savannah
vi

Case: 14-12890 Date Filed: 08/10/2016 Page: 8 of 17
Thomas, J. Curt Town and Country Manor of the Christian and Missionary Alliance United States Department of Health and Human Services United States Department of Labor United States Department of the Treasury Verm, Diana Williams, James Windham, Lori Yates, Sally
/s/ Joshua M. Salzman Joshua M. Salzman Counsel for the Appellees
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MOTION FOR ZUBIK ORDER The defendants respectfully move this Court to enter an order in the above captioned cases that is materially identical to the remand orders that the Supreme Court issued in Zubik v. Burwell, 136 S. Ct. 1557 (2016) (per curiam), and several other cases presenting the same issue. Specifically, we ask this Court to modify its existing injunction so as to provide plaintiffs in these cases with precisely the same interim relief that the Supreme Court provided to other plaintiffs that are similarly situated in all relevant respects. Plaintiffs oppose this motion. 1. As the Court is aware, these appeals present the same issues as were before the Court in Zubik and several other related cases. After consideration of supplemental briefing in Zubik, the Supreme Court remanded to the courts of appeals an array of cases raising RFRA challenges to the accommodation regulations at issue here. See Zubik, 136 S. Ct. at 1560-61; see also, e.g., Burwell v. Dordt Coll., 136 S. Ct. 2006 (2016); University of Notre Dame v. Burwell, 136 S. Ct. 2007 (2016); Catholic Health Care Sys. v. Burwell, __ S. Ct. __, 2016 WL 816249 (May 23, 2016). The Court emphasized in Zubik that it “expresse[d] no view on the merits of the cases” and, in particular, that it did not “decide whether [plaintiffs’] religious exercise has been substantially burdened, whether the Government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest.” 136 S. Ct. at 1560. But the Court stated that in light of what it viewed as “the substantial clarification and refinement in the positions of the parties” in their supplemental briefs, the parties

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“should be afforded an opportunity to arrive at an approach going forward that accommodates [plaintiffs’] religious exercise while at the same time ensuring that women covered by [plaintiffs’] health plans ‘receive full and equal health coverage, including contraceptive coverage.’” Id. (citation omitted). The Court accordingly vacated all of the decisions below, including decisions arising from the one court of appeals where plaintiffs had prevailed. See, e.g., U.S. Dep’t of Health & Human Servs. v. CNS Int’l Ministries, __ S. Ct. __, 2016 WL 2842448 (U.S. May 16, 2016) (vacating and remanding Sharpe Holdings, Inc. v. U.S. Dep’t of Health & Human Servs., 801 F.3d 927 (8th Cir. 2015), which had upheld a RFRA challenge to the accommodation regulations).
The above-captioned cases were not among those that reached the Supreme Court. In February 2016, this Court issued an opinion rejecting plaintiffs’ RFRA and other challenges. See 818 F.3d 1122 (11th Cir. 2016). But on May 31, 2016, in light of Zubik, this Court issued an order vacating that decision. That Order provided a schedule for supplemental briefing and stated:
We continue to enjoin the Secretary of Health and Human Services from enforcing against EWTN, Catholic Charities, and CENGI the substantive requirements set forth in 42 U.S.C. § 300gg-13(a)(4) and from assessing fines or taking other enforcement action against EWTN, Catholic Charities, or CENGI for non-compliance. This stay shall remain in effect until further order of the Court. May 31 Order at 5.
2

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On July 21, 2016, the Departments issued a Request for Information (RFI) to determine whether further modifications to the existing accommodation could resolve the RFRA objections asserted by various organizations while still ensuring that the affected women receive full and equal health coverage, including contraceptive coverage. See 81 Fed. Reg. 47,741 (published July 22, 2016). In light of the RFI, on July 29, 2016, the parties filed a joint motion asking this Court to vacate the supplemental briefing schedule and to stay further proceedings. That motion was granted on August 10, 2016.
2. Zubik specifically addresses the nature and extent of the interim relief to which identically situated plaintiffs are entitled while litigation of this type remains pending. Before the Supreme Court’s decision, most of the plaintiffs in Zubik and the other pending cases raising similar RFRA challenges to the accommodation had secured interim relief against the enforcement of the contraceptive-coverage requirement. The Supreme Court’s decision provides continued interim relief, specifying that during the pendency of these cases “the Government may not impose taxes or penalties on [plaintiffs] for failure to provide the . . . notice” required by the existing accommodation regulations. Zubik, 136 S. Ct. at 1561. But the Court also expressly provided that neither its decision nor any prior interim order prevents the Departments from notifying plaintiffs’ issuers and third-party administrators (TPAs) of their obligation to make separate payments for contraceptives under the accommodation, thereby ensuring that the affected women receive the coverage to
3

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which they are entitled by law while the litigation remains pending. The opinion
provides:
Nothing in this opinion, or in the opinions or orders of the courts below, is to affect the ability of the Government to ensure that women covered by [plaintiffs’] health plans “obtain, without cost, the full range of FDA approved contraceptives.” Wheaton College v. Burwell, 573 U.S. –– , ––, 134 S. Ct. 2806, 2807, 189 L. Ed. 2d 856 (2014). Through this litigation, [plaintiffs] have made the Government aware of their view that they meet “the requirements for exemption from the contraceptive coverage requirement on religious grounds.” Id., at ––, 134 S. Ct., at 2807. Nothing in this opinion, or in the opinions or orders of the courts below, “precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage” going forward. Ibid. Because the Government may rely on this notice, the Government may not impose taxes or penalties on petitioners for failure to provide the relevant notice.
Zubik, 136 S. Ct. at 1560-61. The Court issued materially identical orders in the cases
in which petitions for writs of certiorari were held pending the Zubik decision. See,
e.g., Burwell v. Dordt Coll., 136 S. Ct. 2006 (2016); University of Notre Dame v. Burwell, 136
S. Ct. 2007 (2016); Catholic Health Care Sys. v. Burwell, __ S. Ct. __, 2016 WL 816249
(May 23, 2016).
The Supreme Court’s orders respond to a concern raised by the government in
its supplemental brief in Zubik, which advised the Supreme Court that the parties to
the consolidated cases before the Court provided or arranged health coverage for
thousands of employees and students, but that “[b]ecause of injunctions and other
interim relief entered by the lower courts, none of the affected women are presently
receiving the full and equal health coverage to which they are statutorily entitled.”
4

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Supplemental Brief for the Respondents 20, Zubik v. Burwell, No. 14-1418 & consol. cases. The government noted that, in light of the interim orders entered by the lower courts, further litigation over the accommodation would result in the “continued denial of statutory rights” to the affected women—as well as “to tens of thousands of additional women” who receive health coverage from the parties to other pending challenges to the accommodation (including these cases). Id. Zubik responded to this concern by expressly superseding the preliminary injunctions and other “opinions or orders of the courts below,” Zubik, 136 S. Ct. at 1560, to the extent those interim orders had prevented the government from notifying the relevant issuers and TPAs of their obligation to provide separate coverage.
The Supreme Court’s interim orders differ from the lower court injunctions they superseded by providing that the Departments may rely on information provided by plaintiffs through litigation to ensure that women covered by plaintiffs’ health plans obtain, without cost, the full range of FDA approved contraceptives. As the Supreme Court was aware, its orders thus allow the Departments to use information already in the Departments’ possession to direct plaintiffs’ insurers and TPAs to provide or arrange separate coverage of contraceptives for the plaintiffs’ employees and students. The government had informed the Court during an earlier stage of the proceedings in Zubik that the Departments did exactly that after the Supreme Court issued an analogous interim order in Wheaton College. See Zubik, Mem. for Resps. in Opp. 28-29, No. 14A1065 (U.S.) (Ex. A) (“Consistent with the Court’s interim order,
5

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the Departments have sent notifications to the insurers and TPAs for Wheaton’s nongrandfathered employee health plans describing their obligation to provide separate coverage under the applicable regulations.”); id. at 31 (explaining that the Wheaton approach would be workable in Zubik because “applicants have provided the identities of their TPAs during the course of the litigation”).
For precisely that reason, the Zubik petitioners strenuously opposed analogous interim relief when their petition for a writ of certiorari was pending. See Zubik, Reply in Support of Emergency Application 14, No. 14A1065 (U.S.) (Ex. B). The Zubik petitioners recognized that “the Government has now made clear that it is treating a notification under the Wheaton order as identical to the notification under the accommodation to which [the petitioners] vigorously object”—that is, that the government would rely on such a notification to require or encourage the employer’s insurer or TPA to provide contraceptive coverage. Id. Notwithstanding that objection, however, the Supreme Court issued an injunction pending final disposition of the petition for certiorari in Zubik that was analogous to the Wheaton order. See Zubik v. Burwell, 135 S. Ct. 2924 (2015). And in entering the most recent remand orders in Zubik and the other parallel cases, the Court once again quoted and incorporated the terms of the order that had allowed the government to require Wheaton College’s insurers and TPAs to provide contraceptive coverage to its employees and students. See Zubik, 136 S. Ct. at 1560-61. Accordingly, in the cases remanded by the Supreme Court, the Departments have notified the issuers and TPAs
6

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that were identified in the litigation of their obligation to make or arrange separate
payments for contraceptives, without cost to or involvement by the plaintiffs.
3. The Supreme Court’s direction in the Zubik opinion and the related orders
reflected the Court’s considered judgment about the appropriate treatment of the
parties during the pendency of the litigation. The Departments respectfully submit
that the Supreme Court’s judgment about appropriate interim relief applies equally to
this case, and that the parties to all of the pending RFRA challenges to the
accommodation should be treated in the same manner while the cases remain
pending.
For all of these reasons, we respectfully request that this Court issue an order
that is materially identical to the remand orders issued by the Supreme Court, Zubik,
136 S. Ct. at 1560-61, which would provide:
Nothing in this Court’s prior opinions or orders, or in the opinions or orders of the court below, is to affect the ability of the Government to ensure that women covered by plaintiffs’ health plans “obtain, without cost, the full range of FDA approved contraceptives.” Wheaton College v. Burwell, 573 U.S. ––, ––, 134 S. Ct. 2806, 2807, 189 L. Ed. 2d 856 (2014). Through this litigation, plaintiffs have made the Government aware of their view that they meet “the requirements for exemption from the contraceptive coverage requirement on religious grounds.” Id., at ––, 134 S. Ct., at 2807. Nothing in this Court’s prior opinions or orders, or in the opinions or orders of the courts below, “precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage” going forward. Ibid. Because the Government may rely on this notice, the Government may not impose taxes or penalties on plaintiffs for failure to provide the relevant notice.
7

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If this Court enters such an order, to the extent that plaintiffs have identified their insurance issuers and/or TPAs during the course of this litigation, the Departments can issue notifications to the issuers and/or TPAs pursuant to the regulations. 1
Respectfully submitted, MARK B. STERN ALISA B. KLEIN /s/ Joshua M. Salzman JOSHUA M. SALZMAN
202-532-4747 Attorneys, Appellate Staff Civil Division U.S. Department of Justice 950 Pennsylvania Ave., NW, Rm. 7258 Washington, DC 20530
AUGUST 2016
1 See generally 29 C.F.R. § 2590.715-2713A(b); 45 C.F.R. § 147.131(c). For the plaintiffs that have identified their plan as a self-insured church plan, the Departments will notify the TPA of the incentive available under the regulations to make or arrange separate payments for contraceptives. See 80 Fed. Reg. 41,318, 41,323 n.22 (July 14, 2015).
8

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CERTIFICATE OF SERVICE I hereby certify that on August 10, 2016, I electronically filed the foregoing with the Clerk of the Court by using the appellate CM/ECF system. I further certify that the participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.
s/ Joshua M. Salzman JOSHUA M. SALZMAN

Case: 14-12890 Date Filed: 08/10/2016 Page: 1 of 32
IN THE SUPREME COURT OF THE UNITED STATES _______________
No. 14A1065 MOST REVEREND DAVID A. ZUBIK, ET AL., APPLICANTS
v. SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES,
ET AL. _______________
ON EMERGENCY APPLICATION TO RECALL AND STAY THE MANDATE OR ISSUE AN INJUNCTION PENDING THE RESOLUTION OF A PETITION FOR A WRIT OF CERTIORARI _______________
MEMORANDUM FOR RESPONDENTS IN OPPOSITION _______________
The Solicitor General, on behalf of respondents, respectfully files this memorandum in opposition to the emergency application to recall and stay the mandate of the United States Court of Appeals for the Third Circuit or to issue an injunction pending the filing and disposition of a petition for a writ of certiorari.
STATEMENT Under federal law, health coverage provided by employers and insurers generally must cover certain preventive health services, including contraceptive services prescribed for women

Case: 14-12890 Date Filed: 08/10/2016 Page: 2 of 32 2

by their doctors. Applicants object to that requirement on

religious grounds.

As religious nonprofit organizations,

applicants are either automatically exempt from the

contraceptive-coverage requirement or eligible for regulatory

accommodations that would allow them to opt out by providing

notice of their objection. Applicants contend, however, that

the accommodations themselves violate the Religious Freedom

Restoration Act of 1993 (RFRA), 42 U.S.C. 2000bb et seq.,

because the government will require or encourage non-objecting

third parties to provide separate contraceptive coverage to the

affected women after applicants opt out. The court of appeals

rejected applicants’ RFRA challenge and denied a motion to stay

its mandate pending the filing and disposition of a petition for

a writ of certiorari.

1. The Patient Protection and Affordable Care Act

(Affordable Care Act or Act), Pub. L. No. 111-148, 124 Stat.

119,1 generally requires health insurance issuers and employers

offering group health plans to cover certain preventive services

without cost-sharing -- that is, without requiring copayments,

deductibles, or coinsurance payments. 42 U.S.C. 300gg-13. The

required services include “preventive care and screenings” for

1 Amended by the Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029.

Case: 14-12890 Date Filed: 08/10/2016 Page: 3 of 32 3
women “as provided for in comprehensive guidelines supported by” the Health Resources and Services Administration (HRSA), a component of the Department of Health and Human Services (HHS). 42 U.S.C. 300gg-13(a)(4); see Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014) (Hobby Lobby). Congress included a specific provision for women’s preventive health services “to remedy the problem that women were paying significantly more out of pocket for preventive care and thus often failed to seek preventive services.” Priests for Life v. HHS, 772 F.3d 229, 235 (D.C. Cir. 2014), petition for reh’g en banc pending (filed Dec. 26, 2014); see Hobby Lobby, 134 S. Ct. at 2785-2786 (Kennedy, J., concurring).
In developing the required guidelines, HRSA relied on a list of services recommended by experts at the Institute of Medicine (IOM). See Hobby Lobby, 134 S. Ct. at 2762. IOM’s recommendations included the “full range” of contraceptive methods approved by the Food and Drug Administration (FDA), which IOM found can greatly decrease the risk of unwanted pregnancies, adverse pregnancy outcomes, and other negative health consequences, and reduce medical expenses for women. IOM, Clinical Preventive Services for Women: Closing the Gaps 10, 102-110 (2011).
Consistent with IOM’s recommendations, the HRSA guidelines include all FDA-approved contraceptive methods, as prescribed by

Case: 14-12890 Date Filed: 08/10/2016 Page: 4 of 32 4
a health care provider. 77 Fed. Reg. 8725 (Feb. 15, 2012); see
Hobby Lobby, 134 S. Ct. at 2762. Accordingly, the regulations
adopted by the three Departments responsible for implementing
the relevant provisions of the Affordable Care Act (HHS, Labor,
and the Treasury) include those contraceptive methods among the
preventive services that insurers and employers must cover
without cost-sharing. 45 C.F.R. 147.130(a)(1)(iv) (HHS); 29
C.F.R. 2590.715-2713(a)(1)(iv) (Labor); 26 C.F.R. 54.98152713(a)(1)(iv) (Treasury).2
2. The regulations requiring coverage of contraceptives
include an automatic exemption for certain “religious
employers.” 45 C.F.R. 147.131(a). Incorporating a longstanding
definition from the Internal Revenue Code, that exemption applies to “ ‘churches, their integrated auxiliaries, and
conventions or associations of churches,’ as well as ‘the exclusively religious activities of any religious order.’ ”
Hobby Lobby, 134 S. Ct. at 2763 (quoting 26 U.S.C.
2 Under the Affordable Care Act’s grandfathering provision, health plans that have not made specified changes since the Act’s enactment are exempt from many of the Act’s reforms, including the requirement to cover preventive services. Hobby Lobby, 134 S. Ct. at 2763-2764; see 42 U.S.C. 18011. That exemption is a transitional measure, and the percentage of employees in grandfathered plans is steadily declining, having dropped from 56% in 2011, to 48% in 2012, to 36% in 2013, to 26% in 2014. Kaiser Family Found. & Health Research & Educ. Trust, Employer Health Benefits 2014 Annual Survey 7, 210 (2014).

Case: 14-12890 Date Filed: 08/10/2016 Page: 5 of 32 5

6033(a)(3)(A)). In addition, the Departments have implemented

regulatory accommodations “that seek[] to respect the religious

liberty of [other] religious nonprofit corporations while

ensuring that the employees of these entities have precisely the

same access to all FDA-approved contraceptives” as employees of

other organizations. Id. at 2759. Those accommodations are

available to any nonprofit organization that “holds itself out

as a religious organization” and that opposes covering some or

all of the required contraceptive services “on account of

religious objections.” 45 C.F.R. 147.131(b); accord 26 C.F.R.

54.9815-2713A(a); 29 C.F.R. 2590.715-2713A(a).

Eligible

organizations can invoke the accommodations using either of two

procedures: One set forth in regulations promulgated in July

2013, and another set forth in regulations promulgated in August

2014.

a. To opt out of the contraceptive-coverage requirement

under the original accommodations, an organization need only

“self-certify” its eligibility using a form provided by the

Department of Labor and transmit that certification to a third

party. Hobby Lobby, 134 S. Ct. at 2782; 78 Fed. Reg. 39,870

(July 2, 2013).

If the eligible organization purchases coverage for its

employees from a health insurance issuer, it opts out by

transmitting its self-certification to the issuer. An issuer

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that receives such a certification is required to “provide separate payments for contraceptive services” for employees who want those services, “without imposing any cost-sharing requirements on the eligible organization, its insurance plan, or its employee beneficiaries.” Hobby Lobby, 134 S. Ct. at 2763; see 45 C.F.R. 147.131(c)(2).
Rather than purchasing coverage from an insurance issuer, some employers “self-insure” by bearing the financial risk of employee health claims themselves. Those employers typically hire an insurance company or other outside entity to serve as a third-party administrator (TPA) responsible for processing claims and performing other administrative tasks. 78 Fed. Reg. at 39,879-39,880 & n.40. An eligible organization with a selfinsured health plan opts out under the original accommodations by transmitting its self-certification to its TPA. The TPA ordinarily “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.” Hobby Lobby, 134 S. Ct. at 2763 n.8 (quoting 78 Fed. Reg. at 39,893); see 29 C.F.R. 2590.715-2713A(b)(2). The TPA may obtain compensation for providing the required coverage from the federal government through a reduction in the fees insurers pay to participate on

Case: 14-12890 Date Filed: 08/10/2016 Page: 7 of 32 7
federally-facilitated Exchanges created by the Affordable Care Act. Hobby Lobby, 134 S. Ct. at 2763 n.8.
The self-insured accommodation operates differently if the eligible organization’s self-insured plan is a “church plan” defined in 29 U.S.C. 1002(33). Unless they elect to be covered, church plans are exempt from regulation under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. 1001 et seq. See 29 U.S.C. 1003(b)(2). The government’s authority to require a TPA to provide contraceptive coverage under the accommodations derives from ERISA. 79 Fed. Reg. 51,095 n.8 (Aug. 27, 2014). Accordingly, if an eligible organization with a self-insured church plan invokes the accommodation by submitting a self-certification, its TPA is not legally required to provide contraceptive coverage to the organization’s employees (though the TPA may seek reimbursement from the government if it chooses to provide such coverage voluntarily). Ibid.
In all cases, an organization that opts out under the accommodations has no obligation “to contract, arrange, pay, or refer for contraceptive coverage” to which it has religious objections. 78 Fed. Reg. at 39,874. An eligible organization also need not inform plan participants or enrollees of the separate coverage provided by third parties. Instead, issuers and TPAs must provide such notice and must do so “separate from”

Case: 14-12890 Date Filed: 08/10/2016 Page: 8 of 32 8

materials distributed in connection with the eligible

organization’s group health coverage. 29 C.F.R. 2590.715-

2713A(d); 45 C.F.R. 147.131(d).

The accommodations thus

“effectively exempt[]” objecting organizations from the

contraceptive-coverage requirement, while still ensuring that

the organizations’ employees receive the full scope of

preventive health coverage to which they are entitled under

federal law. Hobby Lobby, 134 S. Ct. at 2763.

b. In August 2014, the Departments augmented the original

accommodations in light of this Court’s interim order in Wheaton

College v. Burwell, 134 S. Ct. 2806 (2014) (Wheaton). In that

case, the Court granted an injunction pending appeal to Wheaton

College, a nonprofit religious college that had challenged the

original accommodations under RFRA.

As a condition for

injunctive relief, the Court required Wheaton to inform HHS in

writing that it satisfied the eligibility requirements for the

accommodations. Id. at 2807. The Court provided that Wheaton

“need not use the form prescribed by the Government” and “need

not send copies to health insurance issuers or [TPAs].” Ibid.

But the Court also specified that “[n]othing in [its] order

precludes the Government from relying on” the written notice

provided by Wheaton “to facilitate the provision of full

contraceptive coverage under the Act.” Ibid. Accordingly, the

Court emphasized that “[n]othing in [its] interim order affects

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the ability of [Wheaton’s] employees and students to obtain, without cost, the full range of FDA approved contraceptives.” Ibid.
Although the interim order in Wheaton cautioned that it “should not be construed as an expression of the Court’s views on the merits,” 134 S. Ct. at 2807, the Departments augmented the original accommodations to provide other eligible organizations with an option equivalent to the one the Court’s injunctive order made available to Wheaton. Under interim final regulations promulgated in August 2014, an eligible organization may opt out of the contraceptive-coverage requirement by notifying HHS rather than by sending a self-certification to its insurer or TPA. 79 Fed. Reg. at 51,092. An organization need not use any particular form and need only indicate the basis on which it qualifies for the accommodations, as well as the type of plan it offers and contact information for the plan’s insurance issuers and TPAs. Id. at 51,094-51,095; see 29 C.F.R. 2590.715-2713A(b)(1)(ii)(B) and (c)(1); 45 C.F.R. 147.131(c)(1).
If an eligible organization notifies HHS that it is opting out using this alternative method, the Departments make the necessary communications to ensure that the organization’s issuers or TPAs make or arrange separate payments for contraceptive services for employees and beneficiaries who want such services. 45 C.F.R. 147.131(c)(2) (insured plans); 29

Case: 14-12890 Date Filed: 08/10/2016 Page: 10 of 32 10
C.F.R. 2590.715-2713A(b)(2) (self-insured plans). As with the original accommodations, an eligible organization that opts out plays no role in the provision of contraceptive coverage and has no obligation to inform plan participants or enrollees of the availability of the separate payments made by third parties. 79 Fed. Reg. at 51,094-51,095.
3. Applicants are two Catholic Bishops, two Catholic Dioceses, and several nonprofit organizations affiliated with the Dioceses. Appl. App. A24. Applicants provide health coverage for their employees through self-insured plans administered by TPAs, but they object on religious grounds to covering contraceptive services. Id. at A25. The Dioceses are houses of worship under the Internal Revenue Code and are therefore automatically exempt from the contraceptive-coverage requirement under 45 C.F.R. 147.131(a). See pp. 4-5, supra.3 The affiliated nonprofit organizations are eligible to opt out under the accommodations. Appl. App. A11.
Applicants have not indicated whether their self-insured plans are “church plans” exempt from ERISA under 29 U.S.C. 1003(b)(2). The consequences that would follow if applicants
3 Applicants have indicated that the Diocese of Pittsburgh’s plan is not subject to the contraceptive-coverage requirement for the additional reason that it is a grandfathered plan. 2:13-cv-1459 Docket entry No. 1, at 9 (Oct. 8, 2013); see 42 U.S.C. 18011.

Case: 14-12890 Date Filed: 08/10/2016 Page: 11 of 32 11

invoked the accommodations are thus unclear: If their plans are

subject to ERISA regulation, applicants’ TPAs would be required

to provide separate payments for contraceptive services for

employees and beneficiaries who want such services. If,

instead, the plans are church plans exempt from ERISA, the TPAs

would be under no legal obligation to provide such coverage

(though they could choose to do so voluntarily and seek

reimbursement from the government). 79 Fed. Reg. at 51,095 n.8.

There is no indication that applicants’ TPAs object to providing

separate contraceptive coverage.

4. Applicants challenged the accommodations in two suits

filed in the U.S. District Court for the Western District of

Pennsylvania. As relevant here, applicants contended that RFRA

entitles them not only to opt out of providing contraceptive

coverage themselves, but also to prevent their TPAs from

providing applicants’ employees with separate coverage after

applicants opt out. The district court agreed, granting

preliminary and then permanent injunctive relief. Appl. App.

A25-A27; see id. at D1-D29. 5. The court of appeals reversed.

Appl. App. A1-A49.4

RFRA provides that the government may not “substantially burden

4 The court of appeals consolidated applicants’ cases with the government’s appeal of preliminary injunctions granted to

Case: 14-12890 Date Filed: 08/10/2016 Page: 12 of 32 12
a person’s exercise of religion” unless that burden is “the least restrictive means of furthering [a] compelling governmental interest.” 42 U.S.C. 2000bb-1(a) and (b). The court held that applicants are not entitled to relief under RFRA because the accommodations do not impose a substantial burden on their exercise of religion.
The court of appeals began by distinguishing this Court’s decision in Hobby Lobby, which held that the contraceptivecoverage requirement violated RFRA as applied to closely held for-profit corporations that were not eligible for the accommodations. Appl. App. A32-A34. The court explained that, unlike the plaintiffs in Hobby Lobby, applicants can invoke the accommodations and “avoid both providing contraceptive coverage to their employees and facing penalties for noncompliance.” Id. at A34. The court emphasized that under the accommodations, eligible organizations have “no role whatsoever in the provision of the objected-to contraceptive services.” Id. at A35. Instead, the coverage is provided separately by third parties -the organizations’ insurers and TPAs. Id. at A35-A38.
The court of appeals explained that applicants do not object to notifying their TPAs (or the government) that they
Geneva College, another nonprofit organization challenging the accommodations under RFRA. Appl. App. A11, A20-24.

Case: 14-12890 Date Filed: 08/10/2016 Page: 13 of 32 13
oppose the provision of contraceptive-coverage and qualify for the accommodations. Appl. App. A29, A37. Instead, applicants’ “real objection is to what happens after the [notice] is provided -- that is, to the actions of the [TPAs], required by law, once [applicants] give notice of their objection.” Id. at A38. Those TPAs are not parties to these suits and apparently have not objected to providing contraceptive coverage under the accommodation regulations. The court held that “RFRA does not grant [applicants] a religious veto against plan providers’ compliance with those regulations, nor the right to enlist the government to effectuate such a religious veto against the legally required conduct of third parties.” Id. at A38 (quoting Priests for Life, 772 F.3d at 251).5
6. The court of appeals denied applicants’ petition for rehearing en banc and their motion to stay the mandate pending the filing and disposition of a petition for a writ of certiorari. Appl. App. B1-B3, C1.
5 The court of appeals also rejected applicants’ contention that the accommodations impermissibly “partition[] the Catholic Church” because the Dioceses are automatically exempt from the contraceptive-coverage requirement under 45 C.F.R. 147.131(a), whereas the affiliated nonprofit organizations are instead eligible to opt out under the accommodations. Appl. App. A46A48. Aside from a passing footnote (Appl. 5 n.2), applicants do not renew that argument in this Court.

Case: 14-12890 Date Filed: 08/10/2016 Page: 14 of 32 14
ARGUMENT Applicants seek a stay of the court of appeals’ mandate to allow the injunctions entered by the district court to remain in effect. “To obtain a stay pending the filing and disposition of a petition for a writ of certiorari, an applicant must show (1) a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari; (2) a fair prospect that a majority of the Court will vote to reverse the judgment below; and (3) a likelihood that irreparable harm will result from the denial of the stay.” Hollingsworth v. Perry, 558 U.S. 183, 190 (2010). “In close cases the Circuit Justice or the Court will balance the equities and weigh the relative harms to the applicant and to the respondent.” Ibid. When, as in this case, the court of appeals has denied a stay, the applicant must “rebut the presumption that the decisions below -- both on the merits and on the proper interim disposition of the case -- are correct.” Rostker v. Goldberg, 448 U.S. 1306, 1308 (1980) (Brennan, J., in chambers); see Magnum Import Co. v. Coty, 262 U.S. 159, 163-164 (1923). Applicants cannot make the required showing. The court of appeals correctly rejected their RFRA claims, and its decision does not conflict with any decision of this Court or another court of appeals. To the contrary, identical RFRA challenges have been rejected by every court of appeals to consider them,

Case: 14-12890 Date Filed: 08/10/2016 Page: 15 of 32 15
and the Court’s decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), was premised on the availability of the accommodations as a less-restrictive alternative. There is thus no reasonable probability that this Court will grant certiorari and reverse the decision below.6
Unable to demonstrate that their forthcoming petitions will satisfy this Court’s traditional criteria for certiorari review, applicants rely heavily on the order granting interim relief in Wheaton College v. Burwell, 134 S. Ct. 2806 (2014). But shortly after the Court issued that order, the Departments augmented the accommodations to provide all eligible organizations -including applicants -- with an option materially equivalent to the one this Court made available to the applicant in that case. Wheaton thus confirms that the application should be denied. If, however, the Court concludes that interim relief is appropriate here, it should follow the path marked in Wheaton.
1. Applicants have not demonstrated that their claims warrant this Court’s review. They do not and could not contend that the decision below conflicts with any decision by another
6 Applicants’ inability to satisfy the standards for a stay forecloses their alternative request for injunctive relief. See Respect Maine PAC v. McKee, 131 S. Ct. 445, 445 (2010) (an injunction “‘demands a significantly higher justification’ than a request for a stay”) (quoting Ohio Citizens for Responsible Energy, Inc. v. NRC, 479 U.S. 1312, 1313, (1986) (Scalia, J., in chambers)).

Case: 14-12890 Date Filed: 08/10/2016 Page: 16 of 32 16
court of appeals. To the contrary, every circuit that has
addressed the question -- both before and after Hobby Lobby --
has held that the accommodations are consistent with RFRA. See
Appl. App. A44-A46; Priests for Life v. HHS, 772 F.3d 229, 246
(D.C. Cir. 2014), petition for reh’g en banc pending (filed Dec.
26, 2014); Michigan Catholic Conference & Catholic Family Servs.
v. Burwell, 755 F.3d 372, 390 (6th Cir. 2014) (Michigan Catholic
Conference), petition for cert. pending, No. 14-701 (filed Dec.
12, 2014); see also University of Notre Dame v. Sebelius, 743 F.3d 547, 559 (7th Cir. 2014), vacated, 135 S. Ct. 1528 (2015).7
Applicants note (Appl. 13-14 & n.5) that other courts of
appeals have issued injunctions pending appeal in cases raising
parallel challenges. But those interim orders neither establish
circuit precedent nor predict the issuing courts’ ultimate views
on the merits. Motions panels of the Sixth and D.C. Circuits,
for example, had granted similar interim relief before those
courts ultimately rejected RFRA challenges to the
7 In Notre Dame, this Court granted a petition for a writ of certiorari, vacated the decision below, and remanded for further consideration in light of Hobby Lobby. University of Notre Dame v. Burwell, 135 S. Ct. 1528 (2015). The Sixth Circuit’s decision in Michigan Catholic Conference was also issued before Hobby Lobby, and the government has therefore acknowledged that the Court may wish to grant, vacate, and remand in that case as well. Br. in Opp. at 10, 21, Michigan Catholic Conference v. Burwell, No. 14-701 (filed Mar. 19, 2015). In this case, by contrast, the court of appeals’ decision postdated and relied upon Hobby Lobby.

Case: 14-12890 Date Filed: 08/10/2016 Page: 17 of 32 17

accommodations. See Michigan Catholic Conference, 755 F.3d at

398 (“We lift the stay temporarily issued by this court pending

resolution of this appeal.”); see also Priests for Life, 772

F.3d at 242. There is thus no disagreement in the lower courts

warranting this Court’s intervention.

2. Even if a grant of certiorari were reasonably

probable, applicants fail to demonstrate the requisite

likelihood that this Court would reverse the decision below.

The court of appeals correctly held that the accommodations do

not substantially burden applicants’ exercise of religion.

Applicants’ RFRA claims also fail for the independent reason

that the accommodations are the least restrictive means of

furthering compelling governmental interests, including ensuring

that women have full and equal access to preventive health

services. And contrary to applicants’ contentions, this Court’s

decision in Hobby Lobby confirms that the accommodations are

consistent with RFRA.

a. The accommodations do not substantially burden

applicants’ exercise of religion.

To opt out of the

contraceptive-coverage requirement, those applicants that are

not automatically exempt need only notify HHS or their TPAs that

they object to providing contraceptive coverage on religious

grounds. They would then be relieved of any obligation to

provide, arrange, or pay for such coverage. Hobby Lobby, 134 S.

Case: 14-12890 Date Filed: 08/10/2016 Page: 18 of 32 18

Ct. at 2763. Any obligation to provide separate contraceptive

coverage would instead fall on their TPAs, who apparently have

no objection to providing it.8

The availability of the

accommodations thus renders applicants “effectively exempt[]”

from the contraceptive-coverage requirement. Ibid.

Applicants do not object to informing HHS or their TPAs

that they have religious objections to providing contraceptive

coverage. To the contrary, they conceded below that “the act of

filling out or submitting [the self-certification form] itself

does not impose a burden on their religious exercise.” Appl.

App. A29. Instead, applicants object “to what happens after

the form is provided -- that is, to the actions of the [TPAs],

required by law, once [applicants] give notice of their

objection.” Appl. App. A38. But, as the courts of appeals have

recognized, “the inability to restrain the behavior of a third

party that conflicts with [applicants’] religious beliefs does

not impose a burden on [applicants’] exercise of religion”

within the meaning of RFRA. Michigan Catholic Conference, 755

F.3d at 388 (citation and internal quotation marks omitted);

accord Appl. App. A43-A44.

8 As explained above, if applicants’ plans are church plans exempt from ERISA, their TPAs would be under no legal obligation to provide separate coverage, but could choose to do so and to seek reimbursement from the government. See pp. 10-11, supra.

Case: 14-12890 Date Filed: 08/10/2016 Page: 19 of 32 19
Applicants assert (Appl. 21-26) that, by making this determination, the court of appeals impermissibly “substitute[d] its religious judgment for that of Applicants.” That is incorrect. Citing Hobby Lobby, the court repeatedly emphasized that it was not “delving into [applicants’] beliefs” or questioning the sincerity of their religious objections to the accommodations. Appl. App. A31; see id. at A29. Instead, the court recognized that “[w]hether a burden is ‘substantial’ under RFRA is a question of law, not a question of fact,” id. at A44, and it held that, as a legal matter, the government’s imposition of “an independent obligation on a third party” cannot “impose a substantial burden on the exercise of religion,” id. at A39-A40. In other words, the Third Circuit joined other courts of appeals in holding that “[r]eligious objectors do not suffer substantial burdens under RFRA where the only harm to them is that they sincerely feel aggrieved by their inability to prevent what other people would do to fulfill regulatory objectives after they opt out.” Priests for Life, 772 F.3d at 246; accord Michigan Catholic Conference, 755 F.3d at 388.
That holding follows directly from decisions establishing that a religious adherent “may not use a religious objection to dictate the conduct of the government or of third parties.” Priests for Life, 772 F.3d at 246. This Court has made clear, for example, that the right to the free exercise of religion

Case: 14-12890 Date Filed: 08/10/2016 Page: 20 of 32 20
“simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens.” Bowen v. Roy, 476 U.S. 693, 699 (1986); see Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 450-451 (1988).
For the same reason, “RFRA does not grant [applicants] a religious veto” against the actions of third parties, nor does it allow applicants “to control their employees’ relationships with other entities willing to provide health insurance coverage to which the employees are legally entitled.” Priests for Life, 772 F.3d at 251, 256. And while applicants sincerely believe that invoking the accommodations would render them complicit in objectionable conduct, RFRA does not permit them to collapse the legal distinction between requirements that apply to them and actions taken by the government and other third parties. Cf. Roy, 476 U.S. at 700 n.6 (“Roy’s religious views may not accept this distinction between individual and governmental conduct. It is clear, however, that the Free Exercise Clause, and the Constitution generally, recognize such a distinction * * * .”) (citation omitted).
Applicants’ description of the asserted burden imposed by the accommodations confirms that their objections are based on the conduct of third parties. Applicants object (Appl. 17-18) “to submitting the self-certification form” not because they

Case: 14-12890 Date Filed: 08/10/2016 Page: 21 of 32 21
object to notifying their TPAs of their opposition to
contraception, but rather “because of what is caused by that
action” -- in other words, because the government requires or
encourages non-objecting third parties to step in and provide the required coverage once applicants are excused.9 Applicants
also object (Appl. 18-20) to “maintain[ing] a contractual
relationship with a third party that is obligated, authorized,
and incentivized to provide contraceptive coverage.” But
applicants already contract with TPAs, and applicants have not
suggested that their TPAs object to providing contraceptive
coverage under the accommodations. The accommodations thus
would not require applicants to change their conduct at all:
They would continue to provide notice that they object to the
provision of contraceptive coverage, and they would continue to
play no role in covering it. The only difference would be that
third parties would step in and provide coverage separate from
9 Applicants are wrong to assert (Appl. 17) that “[i]t is undisputed that, by signing the self-certification form, Applicants authorize and designate their TPAs to provide the morally objectionable coverage.” Eligible organizations “submit forms to communicate their decisions to opt out, not to authorize TPAs to do anything on their behalf,” and “the objected-to services are made available because of the regulations, not because [the organizations] complete a selfcertification.” Priests for Life, 772 F.3d at 255. In any event, the augmented accommodations allow applicants to opt out without signing the self-certification form; they need only provide the requisite written notice of their objection to HHS. 79 Fed. Reg. at 51,094-51,095.

Case: 14-12890 Date Filed: 08/10/2016 Page: 22 of 32 22

the health coverage sponsored by applicants. See Hobby Lobby,

134 S. Ct. at 2763 & n.8.10

Applicants’ contention that the “exemption process itself

imposes a substantial burden” on their exercise of religion is

“paradoxical and virtually unprecedented.” Priests for Life,

772 F.3d at 246 (citation omitted). Our Nation has a long

history of allowing religious objectors to opt out and then

requiring others to fill the objectors’ shoes.

The

accommodations “work[] in the way such mechanisms ordinarily do:

the objector completes the written equivalent of raising a

hand,” and the government then “arranges for other entities to

step in and fill the gap as required to serve the legislatively

mandated regime.” Id. at 250.

Under applicants’ view of RFRA, all such accommodations

could be recast as substantial burdens on the objectors’

exercise of religion. For example, “a religious conscientious

objector to a military draft” could claim that being required to

10 Applicants assert (Appl. 18-19) that, because their self-insured plans also include entities that are automatically exempt from the contraceptive-coverage requirement under 45 C.F.R. 147.131(a), invoking the accommodations would require them to provide their TPAs with the names of the individuals employed by the exempted organizations to ensure that those individuals do not receive separate coverage. But any need for such information is not a burden imposed by the accommodations; it is a function of the greater protection provided by the automatic exemption.

Case: 14-12890 Date Filed: 08/10/2016 Page: 23 of 32 23
claim conscientious-objector status constitutes a substantial burden on his exercise of religion because it would “ ‘trigger’ the draft of a fellow selective service registrant in his place and thereby implicate the objector in facilitating war.” Priests for Life, 772 F.3d at 246 (citation omitted). Similarly, the claimant in Thomas v. Review Board of Indiana Employment Security Division, 450 U.S. 707 (1981), could have demanded not only that he not make weapons but also that he not be required to opt out of doing so, because opting out would cause someone else to take his place on the assembly line. See id. at 710-711; see also Appl. App. A38-A39 n.14. Applicants point to no authority endorsing such a sweeping understanding of RFRA.
b. In any event, even if applicants could establish a substantial burden on their exercise of religion, their RFRA claims would still fail because the accommodations are “the least restrictive means of furthering [a] compelling governmental interest.” 42 U.S.C. 2000bb-1(b)(2).
Applicants contend (Appl. 26-31) that the interests served by the contraceptive-coverage requirement and the accommodations are not compelling. The Court did not resolve that question in Hobby Lobby, but five Justices separately recognized that HHS had “ma[de] the case” that the contraceptive-coverage requirement “serves the Government’s compelling interest in

Case: 14-12890 Date Filed: 08/10/2016 Page: 24 of 32 24
providing insurance coverage that is necessary to protect the health of female employees, coverage that is significantly more costly than for a male employee.” 134 S. Ct. at 2785-2786 (Kennedy, J., concurring); accord id. at 2799-2800 & n.23 (Ginsburg, J., dissenting). Accordingly, as the D.C. Circuit explained in rejecting arguments identical to the ones applicants press here, Hobby Lobby supports the conclusion that the accommodations serve “the government’s compelling interest in providing women full and equal benefits of preventive health coverage.” Priests for Life, 772 F.3d at 264.
The accommodations are also the least restrictive means of furthering the interests at stake. By allowing applicants and other objecting organizations to opt out of any requirement “to contract, arrange, pay, or refer for contraceptive coverage,” 78 Fed. Reg. at 39,874, “[t]he accommodation [procedure] requires as little as it can from the objectors while still serving the government’s compelling interests.” Priests for Life, 772 F.3d at 237.
Applicants contend (Appl. 33-34) that the government could instead provide their employees with contraceptive coverage through other programs. As an initial matter, the Departments lack the legal authority to adopt applicants’ suggested

Case: 14-12890 Date Filed: 08/10/2016 Page: 25 of 32 25
alternatives.11 Those “alternatives” would thus deny full
coverage of preventive services unless and until Congress
enacted an entirely new program. “[I]n applying RFRA,” however,
“‘courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.’ ” Hobby Lobby,
134 S. Ct. at 2781 n.37 (quoting Cutter v. Wilkinson, 544 U.S.
709, 720 (2005)). The free exercise of religion protected by
RFRA cannot “unduly restrict other persons, such as employees,
in protecting their own interests, interests the law deems
compelling.” Id. at 2787 (Kennedy, J., concurring).
Moreover, even if applicants’ proposed alternatives were
legally permissible, they would “substantially impair the
government’s interest[s].” Priests for Life, 772 F.3d at 265.
At a minimum, the affected women would be required “to take
steps to learn about, and to sign up for, a new government
funded and administered health benefit.” Hobby Lobby, 134 S.
11 For example, applicants assert (Appl. 34) that “nothing prevents the Government from allowing employees of religious objectors to purchase subsidized coverage (either for contraceptives alone, or full plans)” on the Affordable Care Act’s health insurance Exchanges. But those Exchanges may only make available “qualified health plans” providing comprehensive coverage, and could not offer contraception-only policies. 42 U.S.C. 18031(d)(2)(B)(i); see 42 U.S.C. 18021(a)(1)(B); 78 Fed. Reg. at 39,882. And HHS could not allow applicants’ employees to purchase subsidized comprehensive coverage because the Act’s subsidies have income-based requirements and are generally unavailable to individuals eligible for coverage under employersponsored plans. 26 U.S.C. 36B(c)(2)(B), 5000A(f)(1)(B).

Case: 14-12890 Date Filed: 08/10/2016 Page: 26 of 32 26
Ct. at 2783 (citation omitted). The resulting “financial, logistical, informational, and administrative burdens” on women seeking contraceptive coverage would defeat the central purpose of the Affordable Care Act’s preventive-services requirement, which seeks to remove barriers to preventive care. Priests for Life, 772 F.3d at 265; see 78 Fed. Reg. at 39,888; cf. Reno v. American Civil Liberties Union, 521 U.S. 844, 874 (1997) (lessrestrictive alternatives must be “at least as effective” as the challenged requirement). “Providing contraceptive services seamlessly together with other health services, without cost sharing or additional administrative or logistical burdens and within a system familiar to women, is necessary to serve the government’s interest in effective access.” Priests for Life, 772 F.3d at 265. The accommodations serve that interest while imposing the minimum possible burden on objecting organizations.
c. This Court’s decision in Hobby Lobby confirms that the accommodations are consistent with RFRA. In that case, the Court held that the contraceptive-coverage requirement violated RFRA as applied to closely held for-profit corporations that were not eligible for the accommodations. 134 S. Ct. at 2785. Although the Court did not decide whether the accommodations “compl[y] with RFRA for purposes of all religious claims,” id. at 2782, the availability of the accommodations formed the critical premise for the Court’s decision. The Court noted that

Case: 14-12890 Date Filed: 08/10/2016 Page: 27 of 32 27
the accommodations are a “less restrictive” alternative that “seek[] 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.” Id. at 2759, 2782; see id. at 2786-2787 (Kennedy, J., concurring). And the Court repeatedly emphasized that the availability of the accommodations meant that its decision “need not result in any detrimental effect on any third party,” 134 S. Ct. at 2781 n.37, because “[t]he effect of the HHS-created accommodation[s] on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero,” id. at 2760; see id. at 2759, 2782-2783.12
This case is entirely different. If applicants’ objections to the accommodations are sustained, there is no “existing, recognized, workable, and already-implemented framework to provide coverage.” Hobby Lobby, 134 S. Ct. at 2786 (Kennedy, J., concurring). Instead, accepting applicants’ objection would
12 Consistent with Hobby Lobby, the Departments are currently engaged in notice-and-comment rulemaking on a proposal to extend the accommodations to “closely held for-profit entities” to ensure that employees of those companies have access to the coverage to which they are entitled under federal law. 79 Fed. Reg. at 51,121.

Case: 14-12890 Date Filed: 08/10/2016 Page: 28 of 32 28
deny coverage to their employees -- and to the employees of all other similarly situated organizations -- absent “the imposition of a whole new program” by Congress. Ibid.
3. Applicants rely heavily (Appl. 1, 12-13) on this Court’s order granting interim relief in Wheaton. In that case, the Court granted an injunction pending appeal to a plaintiff challenging the original accommodations, which required an eligible organization to make a certification directly to its insurer or TPA. 134 S. Ct. at 2807. But the Court required, as a condition for that relief, that Wheaton notify HHS in writing that it satisfied the eligibility requirements for the accommodations. Ibid. And the Court further provided that “[n]othing in [its] order preclude[d] the government from relying on this notice * * * to facilitate the provision of full contraceptive coverage under the Act.” Ibid. The Court therefore emphasized that its grant of interim relief did not “affect[] the ability of [Wheaton’s] employees and students to obtain, without cost, the full range of FDA approved contraceptives.” Ibid. Consistent with the Court’s interim order, the Departments have sent notifications to the insurers and TPAs for Wheaton’s non-grandfathered employee health plans

Case: 14-12890 Date Filed: 08/10/2016 Page: 29 of 32 29
describing their obligation to provide separate coverage under the applicable regulations.13
The Departments have now augmented the original
accommodations to afford applicants here -- and all other
eligible organizations -- an option materially equivalent to the
one this Court’s interim order provided for Wheaton. Like
Wheaton, each applicant may now opt out by “inform[ing] [HHS] in
writing that it is a nonprofit organization that holds itself
out as religious and has religious objections to providing
coverage for contraceptive services.” Wheaton, 134 S. Ct. at
2807. And like Wheaton, applicants “need not use [a] form
prescribed by the Government” and “need not send copies to
health insurance issuers or [TPAs].” Ibid.; see 29 C.F.R.
2950.715-2713A(b)(1)(ii)(B) and (c)(1); 45 C.F.R. 147.131(c)(1).
Applicants do not identify any material difference between
the written notice required in Wheaton and the written notice
13 See 14-2396 Docket entry No. 42, at 6 (7th Cir. Jan. 12, 2015). The Departments inform us that they have sent similar notifications to the insurers and TPAs of eight other eligible organizations that have invoked the augmented accommodations since August 2014. With respect to Wheaton, the Departments were initially unable to send a notification to one of Wheaton’s insurers (the issuer of its student health plan) because they lacked the necessary contact information. Id. at 6-7. The Departments later obtained the required information and intended to send the notification in February 2015. 14-2396 Docket entry No. 44, at 1 (7th Cir. Feb. 6, 2015). Due to an oversight, the notification was not sent then, but the Departments have informed us that it will be sent this week.

Case: 14-12890 Date Filed: 08/10/2016 Page: 30 of 32 30
permitted under the augmented accommodations.14 And because
applicants already have available an option equivalent to the
one this Court granted to a similarly situated party raising the
same claim, Wheaton further confirms that there is no basis for
staying the court of appeals’ mandate and preserving the
injunctions entered by the district court.15
If this Court nonetheless concludes that interim relief is
warranted in this case, it should adhere to the approach it
followed in Wheaton: The Court should grant an interim
14 Applicants note (Appl. 7 n.3) that the accommodations require additional administrative details, such as the names and contact information of the eligible organization’s insurers and TPAs. But that information “represents the minimum information necessary” for the Departments to relieve the accommodated organizations of the requirement to provide contraceptive coverage and to notify insurers and TPAs of their obligation to provide separate coverage. 79 Fed. Reg. at 51,095. And in any event, applicants do not suggest that they have any greater religious objection to providing a notice containing those details than they would to providing the notice required by this Court’s order in Wheaton.
15 Applicants also rely (Appl. 1, 12-13) on this Court’s order granting an interim injunction in Little Sisters of the Poor Home for the Aged v. Sebelius, 134 S. Ct. 1022 (2014) (Little Sisters). But that case involved unusual circumstances not present here: The applicants in Little Sisters provided coverage through a self-insured church plan exempt from ERISA, and their TPA (which was also a plaintiff) had made clear that it would not provide contraceptive coverage if the applicants invoked the accommodations. See Little Sisters of the Poor Home for the Aged v. Sebelius, No. 13-cv-2611, 2013 WL 6839900, at *10-*11, *13 (D. Colo. Dec. 27, 2013). The Court’s interim order thus “did not affect any individual’s access to contraceptive coverage.” Wheaton, 134 S. Ct. at 2814 n.6 (Sotomayor, J., dissenting).

Case: 14-12890 Date Filed: 08/10/2016 Page: 31 of 32 31
injunction conditioned on applicants’ “inform[ing] the Secretary
of Health and Human Services in writing that [they are]
nonprofit organization[s] that hold [themselves] out as
religious and ha[ve] religious objection to providing coverage
for contraceptive services,” and the Court should make clear
that its order will not “affect[] the ability of [applicants’]
employees” to obtain coverage for preventive services because
HHS may “rely[] on this notice, to the extent it considers
necessary, to facilitate the provision of full contraceptive
coverage under the Act.” 134 S. Ct. at 2807.16 Such an approach
is possible here because in this case, as in Wheaton, applicants
have provided the identities of their TPAs during the course of
the litigation.17
16 If the Court elects to grant applicants relief comparable to the relief it provided to Wheaton, it should enter an interim injunction rather than a stay of the court of appeals’ mandate. The district court entered unconditional permanent injunctions against the enforcement of the contraceptive-coverage requirement, see Appl. App. E1-E4, and a stay of the mandate would leave those injunctions in place.
17 See 1:13-cv-303 Docket entry No. 9-10, at 3 (Oct. 8, 2013); 2:13-cv-1459 Docket entry No. 4-11, at 3 (Oct. 8, 2013); see also Wheaton, 134 S. Ct. at 2815 (Sotomayor, J., dissenting). The other party to the Third Circuit appeals, Geneva College, is in a different position. Geneva has identified the insurer for its student plan, but the record does not appear to reflect the name of the insurer for its employee plan. Geneva has not yet filed an application for relief in this Court. To achieve the result contemplated in Wheaton, however, any interim relief granted to Geneva in response to a future application would need to be conditioned on Geneva

Case: 14-12890 Date Filed: 08/10/2016 Page: 32 of 32 32
CONCLUSION The application to stay the mandate of the court of appeals or to issue an injunction pending the filing and disposition of a petition for a writ of certiorari should be denied. Respectfully submitted.
DONALD B. VERRILLI, JR. Solicitor General
APRIL 2015
providing a notice to HHS identifying the insurer for its employee plan.

Case: 14-12890 Date Filed: 08/10/2016 Page: 1 of 20 No. 14A1065
IN THE SUPREME COURT OF THE UNITED STATES MOST REVEREND DAVID A. ZUBIK, ET AL.;

Applicants, v.
SYLVIA BURWELL, SECRETARY HEALTH AND HUMAN SERVICES, ET AL., Respondents,

Application from the U.S. Court of Appeals for the Third Circuit (Nos. 14-1376 & 14-1377)

REPLY IN SUPPORT OF EMERGENCY APPLICATION TO RECALL AND STAY MANDATE OR ISSUE
INJUNCTION PENDING RESOLUTION OF CERTIORARI PETITION

PAUL M. POHL Counsel of Record JOHN D. GOETZ LEON F. DEJULIUS, JR. IRA M. KAROLL ALISON M. KILMARTIN MARY PAT STAHLER JONES DAY 500 Grant Street, Suite 4500 Pittsburgh, PA 15219 (412)391-3939 pmpohl@jonesday.com

NOEL J. FRANCISCO JONES DAY 51 Louisiana Avenue, NW Washington, DC 20001 (202) 879-3939 njfrancisco@jonesday.com

Counsel for Applicants

Case: 14-12890 Date Filed: 08/10/2016 Page: 2 of 20 TABLE OF CONTENTS

Page

I. THE DECISION BELOW CONFLICTS WITH HOBBY LOBBY ......... 1
II. THE CIRCUITS ARE DIVIDED ............................................................ 7
III. THE REGULATIONS CANNOT SURVIVE STRICT SCRUTINY ....... 8
IV. THE GOVERNMENT’S PROPOSED INJUNCTION IS INADEQUATE ...................................................................................... 13
CONCLUSION ................................................................................................. 15

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Case: 14-12890 Date Filed: 08/10/2016 Page: 3 of 20 TABLE OF AUTHORITIES

Page(s)

CASES
Bowen v. Roy, 476 U.S. 693 (1986) .................................................................................................. 3
Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014) ......................................................................................passim
Christian Legal Soc’y v. Martinez, 130 S.Ct. 2971 (2010) ............................................................................................... 6
City of Boerne v. Flores, 521 U.S. 507 (1997) ................................................................................................ 11
Diocese of Cheyenne v. Burwell, 14-8040 (10th Cir. June 30, 2014) ........................................................................... 7
Diocese of Fort Wayne-South Bend v. Burwell, No. 14-1431 (7th Cir.)............................................................................................. 14
EWTN v. HHS, 756 F.3d 1339 (11th Cir. 2014) ................................................................................ 8
Hobby Lobby Stores v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (en banc) ................................................................ 8
Maryland v. King, 133 S. Ct. 1 (2012) .................................................................................................... 7
McCutcheon v. FEC, 134 S.Ct. 1434 (2014) ............................................................................................. 10
Mich. Catholic Conf. v. Burwell, No. 14-701 ............................................................................................................... 14
Michigan Catholic Conference v. Burwell, 755 F.3d 372 (6th Cir. 2014) .................................................................................... 9
Priests for Life v. U.S.Dep’t of Health & Human Servs., 772 F.3d 229 (D.C. Cir. 2014) ............................................................................ 8, 11

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Case: 14-12890 Date Filed: 08/10/2016 Page: 4 of 20
TABLE OF AUTHORITIES (continued)

Page(s)

Roman Catholic Archbishop of Washington v. Burwell, Nos. 13-5371 & 14-5021 (D.C. Cir.) ....................................................................... 14
Roman Catholic Archdiocese of Atlanta v. Burwell, No. 14-13239 (11th Cir.)......................................................................................... 14
Roman Catholic Archdiocese of N.Y. v. Burwell, No. 14-427 (2d Cir.) ................................................................................................ 14
Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707 (1981) .................................................................................................. 4
Wheaton College v. Burwell, 134 S.Ct. 2806 (2014) ......................................................................................passim
STATUTES
42 U.S.C. § 2000bb-1...................................................................................................... 7
OTHER AUTHORITIES
78 FED. REG. 39,870, 39,874 (JULY 2, 2013) ................................................................. 10

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This Court should stay the Third Circuit’s mandate and leave the district court’s injunction in place pending certiorari in order to protect Applicants from being forced to violate their religious beliefs on pain of severe penalties. The Government concedes that Applicants will suffer irreparable harm in the absence of a stay. In addition, there is at least a “reasonable probability” that this Court will grant certiorari and reverse the lower court because this is a case of exceptional importance, the lower court’s decision was clearly contrary to Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014), and the circuit courts are divided on the critical doctrinal issues underlying this dispute. None of the Government’s arguments warrants a contrary result. I. THE DECISION BELOW CONFLICTS WITH HOBBY LOBBY
Hobby Lobby held that the Government substantially burdens religious exercise whenever it forces plaintiffs to “engage in conduct that seriously violates their religious beliefs” on pain of “substantial” penalties. Hobby Lobby, 134 S.Ct. at 2775-76. The regulations here do precisely that in at least two specific ways. First, they force Applicants to sign and submit an objectionable self-certification or notification document. Second, they force Applicants to maintain an objectionable contractual relationship with a company that will provide abortifacient and contraceptive coverage to their plan beneficiaries. It is undisputed that Applicants believe undertaking both of these actions would make them complicit in sin. But unless they undertake these actions, they are subject to massive penalties. This obviously establishes a “substantial burden” under Hobby Lobby, and the Government’s contrary arguments are meritless.

Case: 14-12890 Date Filed: 08/10/2016 Page: 6 of 20
A. The Government primarily argues that there is no substantial burden because the “accommodation” allows Applicants to “opt out” of the regulatory scheme, Opp. 17, but that is plainly false. The “accommodation” is not an “opt out” because it still requires Applicants to act in violation of their religious beliefs by submitting objectionable documentation and maintaining an objectionable contractual relationship. The document they must file does not free them from the regulatory scheme but obligates, authorizes, and incentivizes their own TPAs to provide the objectionable coverage. An “accommodation” that allows a plaintiff to avoid one way of violating its religious beliefs (paying for abortifacient and contraceptive coverage) by taking different actions that violate its beliefs (signing an objectionable form and maintaining an objectionable contractual relationship) is no “opt out” at all.
The accommodation thus contrasts sharply with the full exemption for qualifying “religious employers,” which are not forced to take actions that violate their religious beliefs, and are free to contract with an insurance company or TPA to provide health plans consistent with their religious beliefs. Applicants are equally religious non-profit organizations, and the Government has not explained why they are not receiving the same treatment the Government has given these other religious employers. As Hobby Lobby noted, the Government’s decision to fully exempt an artificial category of “religious employers”—regardless of whether they even object to providing contraceptive coverage—is “not easy to square” with its refusal to exempt other religious groups such as Applicants, who actually do object
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to participating in the provision of abortifacient and contraceptive coverage. 134 S.Ct. at 2777 n.33. The Government has offered no persuasive reason for “distinguishing between different religious believers—burdening one while [exempting] the other—when [the Government] may treat both equally by offering both of them the same [exemption].” Id. at 2786 (Kennedy, J., concurring).1
B. Citing Bowen v. Roy, 476 U.S. 693 (1986), the Government also asserts that Applicants’ real objection is not to actions they are compelled to take, but rather to “the government’s imposition of ‘an independent obligation on a third party.” Opp. 19-20. That is false. Applicants vigorously object to acts that they themselves are compelled to take, namely: (1) signing and submitting the required self-certification or notification form and (2) taking steps to maintain an objectionable contractual relationship, including providing their TPAs with the names of their plan beneficiaries so the TPAs can offer abortifacient and contraceptive coverage to Applicants’ plan beneficiaries. Indeed, the Government has stipulated that Applicants object to being forced to take these actions that would obligate, authorize, or incentivize their TPA to provide the objectionable coverage through Applicants’ health plans. Appl. 24. Applicants are thus not “‘aggrieved’” by their “‘inability to restrain the behavior of . . . third part[ies] that
1 The Government notes that the Diocese of Pittsburgh has a grandfathered plan, Opp. 10 n.3, but Catholic Charities’ plan, which is operated by Bishop Zubik and the Diocese, is not grandfathered. Compl. ¶ 45. Moreover, the separate grandfathered plan provides health insurance to various Diocesan-affiliated entities that do not qualify for the religious-employer exemption. Accordingly, even though the Diocese is grandfathered, as the district court found, absent relief from this Court, the Diocese will face immediate harm. 983 F. Supp. at 582-83; JA380 ¶ 15; JA390-91 ¶ 18.
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Case: 14-12890 Date Filed: 08/10/2016 Page: 8 of 20
conflicts with [their] religious beliefs.’” Opp. 18,19. Rather, Applicants are aggrieved because the Government is affirmatively compelling them to violate their beliefs.
Hobby Lobby, moreover, rejected the Government’s similar attempt to recast a plaintiff’s religious objection into an objection to the actions of third parties. There, the Government argued that the plaintiffs had no cognizable RFRA objection because “the ultimate event that [the plaintiffs] f[ou]nd morally wrong—the destruction of an embryo”—would occur only as a result of independent actions taken by third parties. 134 S.Ct. at 2777 & n.33. The Court recognized that the Government’s argument “dodge[d] the question that RFRA presents” because it refused to acknowledge the plaintiffs’ religious objections were based on their perceived moral duty to avoid “enabling or facilitating the commission of an immoral act by another.” Id. at 2778. The same is true here.
C. The Government further distorts Applicants’ religious beliefs, asserting that “Applicants do not object to informing HHS or their TPAs that they have religious objections to providing contraceptive coverage.” Opp. 18. Applicants, however, manifestly do object filing the self-certification or notification in the context of this regulatory regime, in which Applicants’ actions are a necessary component of delivering objectionable products and services to their plan beneficiaries as a result of their enrollment in Applicants’ health plans. The Government nevertheless belittles Applicants’ objections as limited only “‘to what happens after the form is provided”—that is, the provision of abortifacient and contraceptive coverage to Applicants’ plan beneficiaries. Opp. at 13. But there is no
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Case: 14-12890 Date Filed: 08/10/2016 Page: 9 of 20
authority for the bizarre notion that RFRA does not protect the religious exercise of plaintiffs who object to taking certain actions because of their consequences. The consequences of an action, or the context in which the action takes place, are obviously relevant to whether the action itself is morally acceptable. See Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707, 714-15 (1981) (plaintiff had no objection to manufacturing steel, but did object to manufacturing steel that would be used in tank turrets).
As this Court emphasized in Hobby Lobby, RFRA protects “any exercise of religion,” 134 S. Ct. at 2762 (emphasis added), and it is left to plaintiffs, not courts, to determine whether compelled conduct—though “innocent in itself”—is “connected to” wrongdoing “in a way that is sufficient to make it immoral.” Id. at 2778. And here, in the context of this regulatory scheme, it is undisputed that Applicants believe that taking the required actions would make them complicit in sin. See, e.g., Appl. at 17-20 (describing Applicants’ beliefs and citing the record).2
D. The Government argues that Applicants cannot object to complying with the regulations because Applicants “already contract with TPAs,” and thus they will not be required to “change their conduct at all.” Opp. 21. This too is wrong. First, it
2 The Government notes that the Third Circuit “repeatedly emphasized that it was not ‘delving into [applicants'] beliefs.’” Opp. 19. But whatever the Third Circuit claimed to be doing, by assessing whether compliance with the accommodation would make applicants “complicit in the provision of contraceptive coverage,” Op. 44, it was engaging in an inherently religious inquiry. While it is certainly true that “whether a burden is ‘substantial’ under RFRA is a question of law, not a question of fact,” Opp. 19, Hobby Lobby makes clear that such inquiry is limited to the substantiality of the pressure the Government imposes on the plaintiff to violate his beliefs. 134 S. Ct. at 2775-76.
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Case: 14-12890 Date Filed: 08/10/2016 Page: 10 of 20
ignores the requirement that Applicants sign and submit the Governmentprescribed self-certification or notification—a religiously objectionable action they have never taken before. Second, it likewise ignores the fact that Applicants have never before been required to maintain a relationship with a TPA or sponsor a health plan that will provide abortifacient and contraceptive coverage to their employees. Indeed, they have always done precisely the opposite. Finally, it ignores the fact that an innocent relationship can become morally objectionable when the counterparty’s behavior changes. It is not objectionable to give your friend a ride to the bank; it may become objectionable, however, if you learn that he plans to rob it. The same is true here: Applicants do not object to maintaining their insurance relationships currently, but they will object if their TPAs start providing contraceptive and abortifacient coverage to Applicants’ plan beneficiaries.
E. The Government does not even attempt to defend the lower court’s plainly erroneous assertion that TPAs have an “independent obligation” to provide the objectionable coverage. Indeed, if that were true, the Government would have no need to litigate this case or seek to force Applicants to take the actions required under the so-called “accommodation.” The Government recognizes the difference between an “issuer” and TPA, see, e.g., Opp. at 6 (“Rather than purchasing coverage from an insurance issuer, some employers ‘self-insure’ . . . . [t]hose employers typically hire . . . a [TPA].”), and does not dispute that a TPA has no obligation to provide the objectionable coverage until an eligible organization submits a certification or notice. Compare id. at 2-3 (describing the issuer’s statutory
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Case: 14-12890 Date Filed: 08/10/2016 Page: 11 of 20
obligation), with id. at 6-7 (describing the TPA’s obligation after the insured acts). As Applicants have explained and the Government previously conceded, Appl. 25, any “obligation” to provide abortifacient and contraceptive coverage to Applicants’ employees is entirely dependent on Applicants’ submission of the objectionable documentation and maintenance of the objectionable relationship—the very actions Applicants are compelled to take on pain of substantial penalties.3 Hobby Lobby, 134 S.Ct. at 2776-77. Consequently, the regulations force Applicants to play a central role in the delivery of abortifacient and contraceptive coverage to their plan beneficiaries. 4 II. THE CIRCUITS ARE DIVIDED
For all the reasons stated above, there is “‘a reasonable probability’ that this Court will grant certiorari,” and a “‘a fair prospect’ that the Court will then reverse the decision below.” Maryland v. King, 133 S. Ct. 1, 2 (2012) (Roberts, C.J., in chambers). In addition, as this Court recognized in Wheaton College v. Burwell, the “Circuit Courts have divided on whether to enjoin” the accommodation for “religious
3 The Government attempts to walk back its concession that a TPA’s obligation to provide the objectionable coverage is dependent on the actions of Applicants. Opp. 21 n.9. Those stipulations, however, are binding. E.g., Christian Legal Soc’y v. Martinez, 130 S.Ct. 2971, 2983-84 (2010) (rejecting a party’s “unseemly attempt to escape from [a] stipulation”).
4 Contrary to the Government’s assertion, Opp. 5, Applicants have not abandoned their argument that the regulations impermissibly split the Catholic Church by granting an exemption for its “worship” wing while denying an exception for its “charitable and educational” wing. See Appl. 5 n.2 (arguing for certiorari to address district court’s holding that the regulatory scheme violates RFRA because it “gives an exemption to houses of worship, but not other religious organizations that operate as part of the exercise of the Catholic faith”).
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Case: 14-12890 Date Filed: 08/10/2016 Page: 12 of 20
nonprofit organizations. ” 134 S.Ct. 2806, 2807 (2014). The Government argues that the split is illusory because it is the product of “interim orders” that do not “establish circuit precedent.” Opp. 16. The Government, however, fails to recognize that many of the injunctions granted by circuit courts mirror entrenched circuit precedent that is flatly contrary to the decision below as well as the decisions of the Sixth and D.C. Circuits.
For example, the Tenth Circuit’s decision in Diocese of Cheyenne v. Burwell, 14-8040 (10th Cir. June 30, 2014), reflects the fact that in that circuit, RFRA’s substantial-burden test turns solely on “the intensity of the coercion” to take any act “contrary to [sincere religious] beliefs.” Hobby Lobby Stores v. Sebelius, 723 F.3d 1114, 1137 (10th Cir. 2013) (en banc), aff’d, 134 S.Ct. 2751. Likewise, the Eleventh Circuit’s decision in EWTN v. HHS, 756 F.3d 1339 (11th Cir. 2014), aligns with circuit precedent indicating that there is a substantial burden whenever the Government imposes “significant pressure” on a religious adherent to take any action “‘prohibited by [his] religion,’” including the filing of a form. EWTN, 756 F.3d at 1345 (Pryor, J., concurring) (quoting Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214 (11th Cir. 2004)).
By contrast, the Third Circuit here declined to focus on “the intensity of the coercion faced by appellees,” and instead undertook to “assess whether the appellees’ compliance with the [regulations] does, in fact, . . . make them complicit in the provision of contraceptive coverage.” Appx. A at 29-30. The court thus found no substantial burden because it believed the actions Applicants are undisputedly
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forced to take do not do not really make Applicants complicit in sin. Id. at 34-40; see also Priests for Life v. U.S.Dep’t of Health & Human Servs., 772 F.3d 229, 256 (D.C. Cir. 2014)(stating that the “requirement that [plaintiffs file] a sheet of paper” “is not a burden that any precedent allows us to characterize as substantial,” despite their sincere religious objection to doing so); Michigan Catholic Conference v. Burwell , 755 F.3d 372, 386 (6th Cir. 2014) (“all [plaintiffs] must do” is file a form).
As these cases illustrate, the conflict recognized in Wheaton arises from different circuits’ adoption of incompatible tests to determine whether a regulation substantially burdens religious exercise. While the Tenth and Eleventh Circuits assess whether the pressure placed on a plaintiff to act contrary to his religious beliefs, the Third, Sixth, and D.C. Circuit’s instead assess the nature of the compelled act. That conflict is squarely presented here and in need of resolution. III. THE REGULATIONS CANNOT SURVIVE STRICT SCRUTINY
The Government claims not only that it has a compelling interest in providing contraceptive-and-abortifacient coverage for employees who choose to work for non-profit Catholic employers, but also that it has no viable way to provide such coverage independently of the Catholic employers’ health plans. Both prongs of that argument are implausible, and they fail for several reasons.
A. The Government suggests that “five justices” found a compelling interest in Hobby Lobby. In fact, the majority and Justice Kennedy’s concurrence merely “assum[ed]” without deciding that the Government has a compelling interest in providing contraceptive coverage in the context of commercial employers. 134 S.Ct.
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Case: 14-12890 Date Filed: 08/10/2016 Page: 14 of 20
at 2775-76; id. at 2786 (Kennedy, J., concurring) (emphases added). Even in that commercial context, the majority opinion (which Justice Kennedy joined) took pains to point out the multiple flaws in the Government’s compelling-interest arguments, which remain equally flawed here. Id. at 2781-82.
B. Even if the Government could show a “compelling” interest in mandating employer-based coverage for abortifacients and contraceptives in the commercial context, the same interest does not apply here: The affected employees in this case have voluntarily chosen to work for avowedly religious Catholic non-profit groups that vociferously oppose abortion and contraception. Having made that choice, the employees cannot reasonably expect to receive “seamless” coverage for abortifacients and contraceptives as part of their employer-based health plans. At the very least, it is eminently reasonable for such employees to be expected to undertake modest steps to obtain such coverage so as not the force the Catholic employers for whom they work to undertake actions contrary to their sincerely held religious beliefs. Indeed, the Government concedes that despite bearing the burden of proof, it has offered no evidence to support its asserted interest in the specific context of avowedly religious non-profit employers. See Appl. 30-31.
C. The Government fails to explain how extending the existing “religious employer” exemption to Applicants could undercut any compelling interest in light of the numerous other employers (both religious and nonreligious) who are already exempt. Appl. 28-29. The Government does not even attempt to rebut the point that “[e]verything [it] says about exempt religious employers applies in equal measure to
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Case: 14-12890 Date Filed: 08/10/2016 Page: 15 of 20
non-exempt religious non-profits like Applicants,” which makes it “difficult to see how the Government can preclude” consideration of a similar exemption here. Id.5
D. Despite the existing exemptions for other religious employers, the Government paradoxically insists that granting the same exemption for Applicants here would impose unacceptable “burdens” on employees who would not be able to obtain coverage for abortifacients and contraceptives through Applicants’ employerbased health plans. Opp. 25. This argument fails because, as Applicants have demonstrated, the Government has many ways to provide the objectionable coverage without using Applicants’ health plans as the conduit. See Appl. at 31-35.
E. The Government claims that it needs to commandeer Applicants’ health plans because it “lack[s] the legal authority to adopt applicants’ suggested alternatives.” Appl. 24-25. But the entire point of strict scrutiny is that some laws and regulations must be struck down because the Government could enact lessrestrictive alternatives. E.g., McCutcheon v. FEC, 134 S.Ct. 1434, 1458 (2014); see also Hobby Lobby, 134 S.Ct. at 2781 (“[N]othing in RFRA . . . supports . . . drawing [a] line between the creation of an entirely new program and the modification of an existing program (which RFRA surely allows).”).
5 Although the Government has baldly asserted that qualifying “religious employers” are more “likely” than other non-profit religious groups “to employ people of the same faith who share the same objection” to “contraceptive services,” 78 Fed. Reg. 39,870, 39,874 (July 2, 2013), the Government has submitted no evidence to support that notion. For example, the Government cannot explain why the employees of a Catholic school incorporated as part of a diocese are more “likely” share Catholic beliefs about abortion and contraception than employees of a Catholic school that is incorporated separately.
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Case: 14-12890 Date Filed: 08/10/2016 Page: 16 of 20
F. The Government asserts that using alternative means to provide the objectionable coverage independently of Applicants’ health plans would be unworkable because it would not be a “system familiar to women,” and would impose “administrative or logistical burdens” by requiring women to sign up for free benefits provided directly by the Government. Appl. 26 (quoting Priests for Life, 772 F.3d at 265. In other words, the Government claims that it can force Applicants to violate their religious conscience simply to ensure that women do not have to take what the D.C. Circuit described as “minor added steps” to receive free abortifacient and contraceptive coverage. Priests for Life, 772 F.3d at 265. Ultimately, then, the Government’s asserted “compelling interest” is not the muchtouted need to provide free contraceptive coverage, but instead its desire to conscript religious objectors to help provide the coverage more conveniently. That cannot possibly be enough to satisfy the “the most demanding test known to constitutional law.” City of Boerne v. Flores, 521 U.S. 507, 534 (1997). And notably, despite bearing the burden of proof on this point, the Government has provided no evidence that the “minor added steps” it posits would actually impede women’s efforts to obtain free contraceptives in any significant way. See Appl. 32-35.
G. The Government claims that the revised regulations are just like the injunctive relief granted in Wheaton. See Appl. 28-31. That is false. Unlike the Wheaton injunction, which freed the plaintiff from having to take any religiously objectionable action, the regulations here do not allow Applicants to “opt out,” but instead force them to sign and submit an objectionable document and then maintain
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an objectionable contractual relationship. By contrast, the plaintiff in Wheaton did not object to filing the notice required under that injunction, which did not trigger any obligation, authority, or incentives for the plaintiff’s TPA to provide the objectionable coverage.6
The Government emphasizes Wheaton’s statement that the Government could “rely” on the notice “to facilitate the provision of full contraceptive coverage,” and that Wheaton’s plan beneficiaries could still “obtain, without cost, the full range of FDA approved contraceptives.” Opp. 28 (quoting 134 S.Ct. at 2807). But that merely recognized that the Government could provide the objectionable coverage independently of Wheaton College’s plan, through many less-restrictive alternatives. The Court did not state that the Government had independent authority to force Wheaton’s insurers to provide the objectionable coverage (which it clearly does not). And even if the Court believed that Wheaton would have no objection to maintaining a relationship with its insurers while they delivered the coverage, that would be irrelevant here because Applicants do object. 134 S.Ct. at 2778. IV. THE GOVERNMENT’S PROPOSED INJUNCTION IS INADEQUATE
The Government acknowledges that “[t]he district court entered unconditional permanent injunctions against the enforcement of the contraceptivecoverage requirement, and a stay of the mandate would leave those injunctions in
6 Contrary to the Government’s assertion, Opp. 29-30, Applicants do object to the new notification option and have explained how it differs materially from the Wheaton notice, see Appl. 6-7 n.3. The Government claims that the information required is “the minimum information necessary” to grant an exemption, Opp. 30 n.14, but that is wrong: neither Wheaton College, the Little Sisters, nor exempt “religious employers” are required to provide this information.
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Case: 14-12890 Date Filed: 08/10/2016 Page: 18 of 20
place.” Opp. 31 n.16. Nonetheless, even though the standard for a stay is lower than the standard for an injunction, the Government argues that this Court should not grant a stay but instead issue a limited injunction requiring Applicants to send a notice to the Government and allowing the Government to force Applicants’ TPAs to provide the objectionable coverage to Applicants’ plan beneficiaries.
A stay should issue, rather than an injunction, for two reasons. First, Applicants are seeking a stay of the mandate, not the injunction proposed by the Government. If the Court believes Applicants meet the standard for such a stay— and they clearly do—it should accord the relief requested, and not reach Applicants’ alternative request for an injunction, which the Government concedes has a higher standard. Opp. at 16 n.6. Second, the injunction proposed by the Government would not resolve the dispute in this case. Unlike when this Court issued the Wheaton order, the Government has now made clear that it is treating a notification under the Wheaton order as identical to the notification under the accommodation to which Applicants vigorously object. See Opp. 29-30 &nn 13-14. Being forced to file that notification, therefore, would impose the same burden on Applicants’ religious exercise as compliance with the “accommodation.” In addition, Applicants would object to maintaining a contractual relationship with their TPAs while the TPAs provide the objectionable coverage to Applicants’ plan beneficiaries. Accordingly, this Court should grant the relief that Applicants have actually requested—namely, a stay of the Third Circuit’s mandate.
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Finally, granting a stay here would best ensure the orderly resolution of the vitally important question of religious liberty presented by this case and many like it around the country. A stay will not impose any lengthy delay because this Court currently has pending before it a fully briefed petition for certiorari raising the same issues. See Mich. Catholic Conf. v. Burwell, No. 14-701 (distributed for April 24, 2015 conference). There are numerous others that will likewise be before the Court in the near future.7 This Court, therefore, will likely soon resolve this issue, either in this case or in one of the numerous others being litigated nationwide. But this issue should not be resolved through inaction, which could result in non-profit religious organizations like Applicants being forced to engage in conduct that the Government concedes is contrary to their sincerely held religious beliefs before this Court even has an opportunity to weigh in on the matter.
CONCLUSION For the foregoing reasons, Applicants respectfully ask this Court to stay the Third Circuit’s mandate and leave the district court’s injunction in place pending consideration of Applicants’ forthcoming petition for certiorari.
7 E.g., Roman Catholic Archbishop of Washington v. Burwell, Nos. 13-5371 & 14-5021 (D.C. Cir.) (fully briefed petition for rehearing en banc); Diocese of Fort Wayne-South Bend v. Burwell, No. 14-1431 (7th Cir.) (oral argument held on December 3, 2014); Roman Catholic Archdiocese of N.Y. v. Burwell, No. 14-427 (2d Cir.) (oral argument held on January 22, 2015); Roman Catholic Archdiocese of Atlanta v. Burwell, No. 14-13239 (11th Cir.) (oral argument held February 4, 2015).
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Case: 14-12890 Date Filed: 08/10/2016 Page: 20 of 20

April 21, 2015

Respectfully submitted,
/s/ Paul M. Pohl
PAUL M. POHL Counsel of Record JONES DAY 500 Grant Street, Suite 4500 Pittsburgh, PA 15219 Telephone: (412) 391-3939 pmpohl@jonesday.com
Counsel to Applicants

 
 Case: 14-12890 Date Filed: 11/07/2017 Page: 1 of 1

David J. Smith Clerk of Court

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303
November 07, 2017

For rules and forms visit www.ca11.uscourts.gov

James N. Hatten Richard B. Russell Bldg & US Courthouse 2211 UNITED STATES COURTHOUSE 75 TED TURNER DR SW STE 2211 ATLANTA, GA 30303-3309
Appeal Number: 14-12890-CC ; 14-13239 -CC Case Style: The Roman Catholic Archdiocese, et al v. Sec, US Dept HHS, et al District Court Docket No: 1:12-cv-03489-WSD

The enclosed copy of this Court's Order of Dismissal is issued as the mandate of this court. See 11th Cir. R. 41-4. Counsel and pro se parties are advised that pursuant to 11th Cir. R. 27-2, "a motion to reconsider, vacate, or modify an order must be filed within 21 days of the entry of such order. No additional time shall be allowed for mailing."
Sincerely,
DAVID J. SMITH, Clerk of Court
Reply to: Julie F. Cohen, CC/lt Phone #: (404) 335-6170
Enclosure(s)

DIS-4 Multi-purpose dismissal letter

Case: 14-12890 Date Filed: 11/07/2017 Page: 1 of 2
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 14-12890-CC
THE ROMAN CATHOLIC ARCHDIOCESE
OF ATLANTA, an association ofchurches and schools, THE MOST REVEREND WILTON D GREGORY, and his successors. Archbishop ofthe Roman Catholic Archdiocese of Atlanta, CATHOLIC CHARITIES OF THE ARCHDIOCESE OF ATLANTA,INC.,
a Georgia non-profit corporation,
THE ROMAN CATHOLIC DIOCESE OF SAVANNAH, an ecclesiastical territory, THE MOST REVEREND JOHN HARTMAYER, and his successors. Bishop ofThe Roman Catholic Diocese ofSavannah,et al..
Plaintiffs - Appellees,
versus
SECRETARY,U.S.DEPARTMENT OF HEALTH AND HUMAN SERVICES,
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY, SECRETARY,U.S.DEPARTMENT OF LABOR, SECRETARY,U.S.DEPARTMENT OF TREASURY,
Defendants - Appellants.
No. 14-13239-CC
THE ROMAN CATHOLIC ARCHDIOCESE OF ATLANTA, an association ofchurches and schools, THE MOST REVEREND WILTON D GREGORY,
and his successors. Archbishop ofThe Roman Catholic Archdiocese of Atlanta,

Case: 14-12890 Date Filed: 11/07/2017 Page: 2 of 2
CATHOLIC CHARITIES OF THE ARCHDIOCESE OF ATLANTA,INC.,
a Georgia non-profit corporation,
THE ROMAN CATHOLIC DIOCESE OF SAVANNAH, an ecclesiastical territory, THE MOST REVEREND JOHN HARTMAYER,
and his successors.Bishop ofthe Roman Catholic
Diocese ofSavannah,
Plaintiffs - Appellees,
CHRIST THE KING CATHOLIC SCHOOL,et al,.
Plaintiffs,
versus
SECRETARY OF THE U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S.DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF THE TREASURY, SECRETARY OF THE U.S. DEPARTMENT OF LABOR, SECRETARY OF THE U.S. DEPARTMENT OF THE TREASURY,
Defendants - Appellants.
Appeals from the United States District Court
for the Northern District ofGeorgia
Before: TJOFLAT,JILL PRYOR,and ANDERSON,Circuit Judges.
BY THE COURT:
Appellants' motions to dismiss appealjSlosv 14-12890 and 14-13239 are GRANTED.

 
 Case: 1:12-cv-3489 As of: 03/13/2018 12:47 PM EDT 1 of 20
4months,CLOSED
U.S. District Court Northern District of Georgia (Atlanta) CIVIL DOCKET FOR CASE #: 1:12−cv−03489−WSD

The Roman Catholic Archdiocese of Atlanta et al v. Sebelius et al Assigned to: Judge William S. Duffey, Jr Case in other court: USCA− 11th Circuit, 14−12890−CC
USCA− 11th Circuit, 14−13239−CC Cause: 05:702 Administrative Procedure Act
Plaintiff

Date Filed: 10/05/2012 Date Terminated: 05/30/2014 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

The Roman Catholic Archdiocese of Atlanta an association of churches and schools

represented by David Moss Monde Jones Day−Atlanta 1420 Peachtree Street, NE Suite 800 Atlanta, GA 30309−3053 404−581−8206 Email: dmmonde@Jonesday.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edward Kendrick Smith Jones Day 1420 Peachtree Street N.E. Suite 800 Atlanta, GA 30309−3053 404−581=8343 Fax: 404−581−8330 Email: eksmith@jonesday.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Williams Jones Day−Atlanta Suite 800 1420 Peachtree St., N.E. Atlanta, GA 30309−3053 404−521−3939 Email: jwilliams@balch.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Janine Cone Metcalf Jones Day−Atlanta 1420 Peachtree Street, NE Suite 800 Atlanta, GA 30309−3053 404−581−8656 Email: jmetcalf@jonesday.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason Burnette Jones Day−Atlanta 1420 Peachtree Street, NE Suite 800 Atlanta, GA 30309−3053 404−581−8724 Email: jtburnette@jonesday.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:12-cv-3489 As of: 03/13/2018 12:47 PM EDT 2 of 20

Plaintiff The Most Reverend Wilton D. Gregory and his successors, Archbishop of The Roman Catholic Archdiocese of Atlanta
Plaintiff Christ the King Catholic School TERMINATED: 08/19/2013

Stephen M. Forte Smith Gambrell & Russell 1230 Peachtree Street, N.E. Suite 3100, Promenade II Atlanta, GA 30309−3592 404−815−3500 Email: sforte@sgrlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian C. Lea Jones Day−Atlanta Suite 800 1420 Peachtree St., N.E. Atlanta, GA 30309−3053 404−581−8528 Fax: 404−581−8330 Email: blea@jonesday.com ATTORNEY TO BE NOTICED
represented by David Moss Monde (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edward Kendrick Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Janine Cone Metcalf (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Burnette (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen M. Forte (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian C. Lea (See above for address) ATTORNEY TO BE NOTICED
represented by Stephen M. Forte (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Williams (See above for address)

Case: 1:12-cv-3489 As of: 03/13/2018 12:47 PM EDT 3 of 20

ATTORNEY TO BE NOTICED

Plaintiff
Catholic Charities of the Archdiocese of Atlanta, Inc. a Georgia non−profit corporation

represented by Brian C. Lea (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Moss Monde (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edward Kendrick Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Janine Cone Metcalf (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason Burnette (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen M. Forte (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
The Roman Catholic Diocese of Savannah an ecclesiastical territory

represented by David Moss Monde (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edward Kendrick Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Janine Cone Metcalf (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason Burnette (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:12-cv-3489 As of: 03/13/2018 12:47 PM EDT 4 of 20

John Curtis Thomas Brennan, Wasden & Painter LLP P.O. Box 8047 411 East Liberty Street Savannah, GA 31412 912−232−6700 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brian C. Lea (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
The Most Reverend John Hartmayer and his successors, Bishop of The Roman Catholic Diocese of Savannah

represented by David Moss Monde (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edward Kendrick Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Janine Cone Metcalf (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason Burnette (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Curtis Thomas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen M. Forte (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brian C. Lea (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Catholic Education of North Georgia, Inc.

represented by Brian C. Lea (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Moss Monde (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:12-cv-3489 As of: 03/13/2018 12:47 PM EDT 5 of 20
Edward Kendrick Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Janine Cone Metcalf (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason Burnette (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen M. Forte (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Kathleen Sebelius in her official capacity as Secretary of the U. S. Department of Health and Human Services
Defendant Hilda Solis in her official capacity as Secretary of the U. S. Department of Labor TERMINATED: 08/19/2013
Defendant Timothy Geithner in his official capacity as Secretary of the U.S. Department of Treasury TERMINATED: 08/19/2013

represented by Michael C. Pollack United States Department of Justice, Civil Division, Federal Room 6143 20 Massachusetts Avenue NW, Washington, DC 20530 (202)305−8550 Email: michael.c.pollack@usdoj.gov TERMINATED: 05/23/2014
Michelle R. Bennett U.S. Department of Justice−Civil Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 (202) 305−8902 Fax: 202−616−8470 Email: michelle.bennett@usdoj.gov ATTORNEY TO BE NOTICED
represented by Michael C. Pollack (See above for address) TERMINATED: 05/23/2014
Michelle R. Bennett (See above for address) ATTORNEY TO BE NOTICED
represented by Michael C. Pollack (See above for address) TERMINATED: 05/23/2014

Case: 1:12-cv-3489 As of: 03/13/2018 12:47 PM EDT 6 of 20

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

Defendant
U. S. Department of Health and Human Services

represented by Michael C. Pollack (See above for address) TERMINATED: 05/23/2014

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

Defendant U. S. Department of Labor

represented by Michael C. Pollack (See above for address) TERMINATED: 05/23/2014

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

Defendant U. S. Department of Treasury

represented by Michael C. Pollack (See above for address) TERMINATED: 05/23/2014

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

Defendant
Thomas Perez in his official capacity as Secretary of the U.S. Department of Labor

represented by Michael C. Pollack (See above for address) TERMINATED: 05/23/2014 LEAD ATTORNEY

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

Defendant
Jacob J. Lew in his official capacity as Secretary of the U.S. Department of the Treasury

represented by Michael C. Pollack (See above for address) TERMINATED: 05/23/2014 LEAD ATTORNEY

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

Amicus
American Civil Liberties Union TERMINATED: 10/16/2013

represented by Chad Michael Brock Kendall Law Group, LLC Suite 201 3152 Golf Ridge Boulevard Douglasville, GA 30135 770−577−3559 Fax: 770−577−8113

Case: 1:12-cv-3489 As of: 03/13/2018 12:47 PM EDT 7 of 20

Email: cmbrock@kendall−lawgroup.com

Amicus
American Civil Liberties Union Foundation of Georgia TERMINATED: 10/16/2013

represented by Chad Michael Brock (See above for address)

Date Filed 10/05/2012
10/05/2012 11/29/2012 11/29/2012 11/30/2012 11/30/2012 11/30/2012 11/30/2012 11/30/2012 11/30/2012

# Docket Text
1 COMPLAINT filed by The Most Reverend Wilton D. Gregory, The Roman Catholic Archdiocese of Atlanta, The Most Reverend John Hartmayer, Catholic Charities of the Archdiocese of Atlanta, Inc. and The Roman Catholic Diocese of Savannah; and Summon(s) issued. Consent form to proceed before U.S. Magistrate and pretrial instructions provided. ( Filing fee $ 350.00 receipt number 49848.) (Attachments: # 1 Summons, # 2 Civil Cover Sheet)(eop) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. (Entered: 10/10/2012)
2 Certificate of Interested Persons by Catholic Charities of the Archdiocese of Atlanta, Inc., Christ the King Catholic School, The Most Reverend John Hartmayer, The Most Reverend Wilton D. Gregory, The Roman Catholic Archdiocese of Atlanta and The Roman Catholic Diocese of Savannah. (eop) (Entered: 10/10/2012)
3 NOTICE of Appearance by Michelle R. Bennett on behalf of Timothy Geithner, Kathleen Sebelius, Hilda Solis, U. S. Department of Health and Human Services, U. S. Department of Labor, U. S. Department of Treasury (Bennett, Michelle) (Entered: 11/29/2012)
4 Unopposed MOTION for Leave to File Excess Pages by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U. S. Department of Health and Human Services, U. S. Department of Labor, U. S. Department of Treasury. (Attachments: # 1 Text of Proposed Order)(Bennett, Michelle) (Entered: 11/29/2012)
5 Acknowledgment of Service Executed by Christ the King Catholic School, The Most Reverend Wilton D. Gregory, The Roman Catholic Archdiocese of Atlanta, The Most Reverend John Hartmayer, Catholic Charities of the Archdiocese of Atlanta, Inc., The Roman Catholic Diocese of Savannah. All Defendants. (Williams, James) Modified on 12/3/2012 (kt). Modified on 12/3/2012 (kt). (Entered: 11/30/2012)
6 Acknowledgment of Service Executed by Christ the King Catholic School, The Most Reverend Wilton D. Gregory, The Roman Catholic Archdiocese of Atlanta, The Most Reverend John Hartmayer, Catholic Charities of the Archdiocese of Atlanta, Inc., The Roman Catholic Diocese of Savannah. All Defendants. (Williams, James) Modified on 12/3/2012 (kt). (Entered: 11/30/2012)
7 Acknowledgment of Service Executed by Christ the King Catholic School, The Most Reverend Wilton D. Gregory, The Roman Catholic Archdiocese of Atlanta, The Most Reverend John Hartmayer, Catholic Charities of the Archdiocese of Atlanta, Inc., The Roman Catholic Diocese of Savannah. (Williams, James) Modified on 12/3/2012 (kt). Modified on 12/3/2012 (kt). (Entered: 11/30/2012)
8 Acknowledgment of Service Executed by Christ the King Catholic School, The Most Reverend Wilton D. Gregory, The Roman Catholic Archdiocese of Atlanta, The Most Reverend John Hartmayer, Catholic Charities of the Archdiocese of Atlanta, Inc., The Roman Catholic Diocese of Savannah. (Williams, James) Modified on 12/3/2012 (kt). (Entered: 11/30/2012)
9 Acknowledgment of Service Executed by Christ the King Catholic School, The Most Reverend Wilton D. Gregory, The Roman Catholic Archdiocese of Atlanta, The Most Reverend John Hartmayer, Catholic Charities of the Archdiocese of Atlanta, Inc., The Roman Catholic Diocese of Savannah. (Williams, James) Modified on 12/3/2012 (kt). (Entered: 11/30/2012)
10 Acknowledgment of Service Executed by Christ the King Catholic School, The Most Reverend Wilton D. Gregory, The Roman Catholic Archdiocese of Atlanta, The Most Reverend John Hartmayer, Catholic Charities of the Archdiocese of Atlanta, Inc., The Roman Catholic Diocese of Savannah. (Williams, James) Modified on 12/3/2012 (kt).

Case: 1:12-cv-3489 As of: 03/13/2018 12:47 PM EDT 8 of 20

11/30/2012 11/30/2012 12/03/2012
12/04/2012 12/10/2012 12/12/2012
12/12/2012
12/12/2012 12/18/2012 12/19/2012 12/19/2012 12/21/2012

(Entered: 11/30/2012)
11 Acknowledgment of Service Executed by Christ the King Catholic School, The Most Reverend Wilton D. Gregory, The Roman Catholic Archdiocese of Atlanta, The Most Reverend John Hartmayer, The Roman Catholic Diocese of Savannah. (Williams, James) Modified on 12/3/2012 (kt). (Entered: 11/30/2012)
12 Acknowledgment of Service Executed by Christ the King Catholic School, The Most Reverend Wilton D. Gregory, The Roman Catholic Archdiocese of Atlanta, The Most Reverend John Hartmayer, The Roman Catholic Diocese of Savannah. (Williams, James) Modified on 12/3/2012 (kt). (Entered: 11/30/2012)
Notification of Docket Correction re 6 Return of Service Executed as to USA, 7 Return of Service Executed as to USA, 12 Return of Service Executed as to USA, 9 Return of Service Executed as to USA, 8 Return of Service Executed as to USA, 10 Return of Service Executed as to USA, 11 Return of Service Executed as to USA, 5 Return of Service Executed as to USA. Wrong event selected. Edited documents to reflect actual e−filed pleadings. (kt) (Entered: 12/03/2012)
13 ORDER GRANTING 4 Motion for Leave to File Excess Pages in excess of the twenty−five page limit set in Local Rule 7.1(D). Defendants may file a thirty−five (35) page brief, excluding the table of contents, table of authorities, signature block, and certificate of service. Signed by Judge William S. Duffey, Jr on 12/3/2012. (kt) (Entered: 12/04/2012)
14 MOTION to Dismiss for Lack of Jurisdiction with Brief In Support by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U. S. Department of Health and Human Services, U. S. Department of Labor, U. S. Department of Treasury. (Attachments: # 1 Brief)(Bennett, Michelle) (Entered: 12/10/2012)
15 Unopposed MOTION for Leave to File Excess Pages in Response Brief to Motion to Dismiss with Brief In Support by Catholic Charities of the Archdiocese of Atlanta, Inc., Christ the King Catholic School, The Most Reverend John Hartmayer, The Most Reverend Wilton D. Gregory, The Roman Catholic Archdiocese of Atlanta, The Roman Catholic Diocese of Savannah. (Attachments: # 1 Brief, # 2 Text of Proposed Order)(Williams, James) (Entered: 12/12/2012)
16 Unopposed MOTION for Extension of Time to File Response to Motion to Dismiss re: 14 MOTION to Dismiss for Lack of Jurisdiction with Brief In Support by Catholic Charities of the Archdiocese of Atlanta, Inc., Christ the King Catholic School, The Most Reverend John Hartmayer, The Most Reverend Wilton D. Gregory, The Roman Catholic Archdiocese of Atlanta, The Roman Catholic Diocese of Savannah. (Attachments: # 1 Brief, # 2 Text of Proposed Order)(Williams, James) (Entered: 12/12/2012)
ORDER (by docket entry only) granting 15 Motion for Leave to File Excess Pages; granting 16 Motion for Extension of Time. Plaintiffs may file and serve their response to Defendants motion to dismiss on or before January 10, 2013. Ordered by Judge William S. Duffey, Jr. on 12/12/12. (jdb) (Entered: 12/12/2012)
17 Joint MOTION for Extension of Time to comply with Case Management Deadlines by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U. S. Department of Health and Human Services, U. S. Department of Labor, U. S. Department of Treasury. (Attachments: # 1 Text of Proposed Order)(Bennett, Michelle) (Entered: 12/18/2012)
18 ORDER GRANTING 17 Motion for Extension of Time. The parties are ORDERED to hold their Rule 26(f) conference by January 9, 2013, and to submit their Rule 16 Report and their Initial Disclosures by January 23, 2013. Signed by Judge William S. Duffey, Jr on 12/19/2012. (kt) (Entered: 12/19/2012)
19 NOTICE by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U. S. Department of Health and Human Services, U. S. Department of Labor, U. S. Department of Treasury Supplemental Authority (Attachments: # 1 Exhibit Wheaton v. Sebelius)(Bennett, Michelle) (Entered: 12/19/2012)
20 NOTICE by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U. S. Department of Health and Human Services, U. S. Department of Labor, U. S. Department of Treasury re 14 MOTION to Dismiss for Lack of Jurisdiction Supplemental Authority

Case: 1:12-cv-3489 As of: 03/13/2018 12:47 PM EDT 9 of 20

12/31/2012 01/03/2013 01/07/2013
01/08/2013
01/09/2013 01/09/2013 01/10/2013 01/14/2013 01/15/2013 01/17/2013 01/17/2013

(Attachments: # 1 Exhibit Catholic Diocese of Biloxi v. Sebelius)(Bennett, Michelle) (Entered: 12/21/2012)
21 First AMENDED COMPLAINT against All Defendants, filed by Christ the King Catholic School, The Most Reverend Wilton D. Gregory, The Roman Catholic Archdiocese of Atlanta, The Most Reverend John Hartmayer, Catholic Charities of the Archdiocese of Atlanta, Inc., The Roman Catholic Diocese of Savannah.(Williams, James) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. (Entered: 12/31/2012)
22 NOTICE re 21 Amended Complaint by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U. S. Department of Health and Human Services, U. S. Department of Labor, U. S. Department of Treasury. (Bennett, Michelle) (Entered: 01/03/2013)
23 Unopposed MOTION for Clarification re: 14 MOTION to Dismiss for Lack of Jurisdiction Motion for Direction That No Responsive Briefing is Required by Catholic Charities of the Archdiocese of Atlanta, Inc., Christ the King Catholic School, The Most Reverend John Hartmayer, The Most Reverend Wilton D. Gregory, The Roman Catholic Archdiocese of Atlanta, The Roman Catholic Diocese of Savannah. (Attachments: # 1 Text of Proposed Order)(Williams, James) (Entered: 01/07/2013)
24 ORDER granting 23 Unopposed Motion for Direction that they are not required to File a Written Response to Defendants' Initial 14 Motion to Dismiss. On 12/31/2012, an amended complaint was filed mooting out 14 Motion to Dismiss. Defendants intend to move for dismissal again by 1/14/2013. Plaintiffs' are excused from filing any written response and shall instead file a timely written response to the amended motion after any such motion is filed on or before 1/14/2013. Signed by Judge William S. Duffey, Jr. on 1/8/2013. (bdb) (Entered: 01/09/2013)
Clerk's Certificate of Mailing to J. Curtis Thomas as to The Roman Catholic Diocese of Savannah re 24 Order with Notice of Requirement. (bdb) (Entered: 01/09/2013)
25 UNOPPOSED MOTION to File Over Length Memorandum in Support of Defendants' Renewed Motion to Dismiss by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U. S. Department of Health and Human Services, U. S. Department of Labor, U. S. Department of Treasury. (Attachments: # 1 Text of Proposed Order)(Bennett, Michelle) (Entered: 01/09/2013)
26 ORDER GRANTING 25 unopposed Motion for Leave to File Excess Pages. Defendants may file a thirty−five page brief, excluding the table of contents, table of authorities, signature block, and certificate of service. Signed by Judge William S. Duffey, Jr on 1/10/2013. (kt) (Entered: 01/10/2013)
27 MOTION to Dismiss the Amended Complaint for Lack of Jurisdiction with Brief In Support by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U. S. Department of Health and Human Services, U. S. Department of Labor, U. S. Department of Treasury. (Attachments: # 1 Memorandum in Support)(Bennett, Michelle) (Entered: 01/14/2013)
28 Unopposed MOTION for Leave to File Excess Pages in Response to Defendants' 27 Motion to Dismiss with Brief In Support by Catholic Charities of the Archdiocese of Atlanta, Inc., Christ the King Catholic School, The Most Reverend John Hartmayer, The Most Reverend Wilton D. Gregory, The Roman Catholic Archdiocese of Atlanta, The Roman Catholic Diocese of Savannah. (Attachments: # 1 Brief, # 2 Text of Proposed Order)(Williams, James) (Entered: 01/15/2013)
29 ORDER GRANTING 28 Motion for Leave to File Excess Pages in excess of the 25−page limit set forth in Local Rule 7/1 D in opposition to Defendants' motion to dismiss. Plaintiffs may file a 35−page brief, excluding the table of contents, table of authorities, signature block, and certificate of service. Signed by Judge William S. Duffey, Jr on 1/16/2013. (kt) (Entered: 01/17/2013)
30 NOTICE OF REQUIREMENT TO FILE ELECTRONICALLY pursuant to Standing Order 04−01 as to J. Curtis Thomas re 29 Order on Motion for Leave to File Excess Pages.(kt) (Entered: 01/17/2013)

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01/17/2013 01/23/2013
01/23/2013 01/23/2013 01/28/2013 01/29/2013 01/31/2013 01/31/2013
02/01/2013 02/01/2013
02/07/2013 02/14/2013

Clerks Certificate of Mailing as to Plaintiff Counsel J. Curtis Thomas re 30 Notice of E−filing Requirement. (kt) (Entered: 01/17/2013)
31 Joint PRELIMINARY REPORT AND DISCOVERY PLAN filed by Catholic Charities of the Archdiocese of Atlanta, Inc., Christ the King Catholic School, Timothy Geithner, Kathleen Sebelius, Hilda Solis, The Most Reverend John Hartmayer, The Most Reverend Wilton D. Gregory, The Roman Catholic Archdiocese of Atlanta, The Roman Catholic Diocese of Savannah, U. S. Department of Health and Human Services, U. S. Department of Labor, U. S. Department of Treasury. (Smith, Edward) (Entered: 01/23/2013)
32 CERTIFICATE OF SERVICE of Initial Disclosures by Catholic Charities of the Archdiocese of Atlanta, Inc., Christ the King Catholic School, The Most Reverend John Hartmayer, The Most Reverend Wilton D. Gregory, The Roman Catholic Archdiocese of Atlanta, The Roman Catholic Diocese of Savannah.(Smith, Edward) (Entered: 01/23/2013)
33 CERTIFICATE OF SERVICE of Initial Disclosures by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U. S. Department of Health and Human Services, U. S. Department of Labor, U. S. Department of Treasury.(Bennett, Michelle) (Entered: 01/23/2013)
34 SCHEDULING ORDER re: 31 Joint Preliminary Report and Discovery Plan. See order for specific details. Signed by Judge William S. Duffey, Jr on 1/28/2013. (kt) (Entered: 01/28/2013)
35 THIRD NOTICE of Supplemental Authority by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U. S. Department of Health and Human Services, U. S. Department of Labor, U. S. Department of Treasury re 27 MOTION to Dismiss Amended Complaint for Lack of Jurisdiction. (Bennett, Michelle) Modified to accurately reflect entry on 1/30/2013 (bdb). (Entered: 01/29/2013)
36 FOURTH NOTICE of Supplemental Authority by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U. S. Department of Health and Human Services, U. S. Department of Labor, U. S. Department of Treasury re 27 MOTION to Dismiss Amended Complaint for Lack of Jurisdiction. (Bennett, Michelle) Modified to accurately reflect entry on 1/31/2013 (bdb). (Entered: 01/31/2013)
37 RESPONSE in Opposition re 27 MOTION to Dismiss Amended Complaint for Lack of Jurisdiction filed by Catholic Charities of the Archdiocese of Atlanta, Inc., Christ the King Catholic School, The Most Reverend John Hartmayer, The Most Reverend Wilton D. Gregory, The Roman Catholic Archdiocese of Atlanta, The Roman Catholic Diocese of Savannah. (Attachments: # 1 Affidavit Declaration of Charles Thibaudeau, # 2 Affidavit Declaration of Jo Ann Green, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Williams, James) (Entered: 01/31/2013)
38 NOTICE of Appearance by Michael C. Pollack on behalf of Timothy Geithner, Kathleen Sebelius, Hilda Solis, U. S. Department of Health and Human Services, U. S. Department of Labor, U. S. Department of Treasury (Pollack, Michael) (Entered: 02/01/2013)
39 NOTICE by Catholic Charities of the Archdiocese of Atlanta, Inc., Christ the King Catholic School, The Most Reverend John Hartmayer, The Most Reverend Wilton D. Gregory, The Roman Catholic Archdiocese of Atlanta, The Roman Catholic Diocese of Savannah of Supplemental Authority to 27 MOTION to Dismiss Amended Complaint for Lack of Jurisdiction (Attachments: # 1 Exhibit Diocese of Fort Worth v. Sebelius, Order Denying Motion to Dismiss)(Smith, Edward) (Entered: 02/01/2013)
40 Notice for Leave of Absence for the following date(s): March 2−9, 2013, by Edward Kendrick Smith. (Smith, Edward) (Entered: 02/07/2013)
41 Unopposed MOTION for Leave to File Overlength Reply Memorandum In Support of their Renewed Motion to Dismiss by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U. S. Department of Health and Human Services, U. S. Department of Labor, U. S. Department of Treasury. (Attachments: # 1 Text of Proposed Order)(Pollack, Michael) (Entered: 02/14/2013)

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02/14/2013 02/19/2013 03/04/2013 03/21/2013 03/28/2013 04/09/2013 04/17/2013 04/23/2013 07/01/2013 07/11/2013 07/15/2013
07/18/2013
07/22/2013

42 REPLY to Response to Motion re 27 MOTION to Dismiss Amended Complaint for Lack of Jurisdiction filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U. S. Department of Health and Human Services, U. S. Department of Labor, U. S. Department of Treasury. (Attachments: # 1 Exhibit 1 − Conlon Decision)(Pollack, Michael) (Entered: 02/14/2013)
Submission of 27 MOTION to Dismiss Amended Complaint for Lack of Jurisdiction, to District Judge William S. Duffey. (kt) (Entered: 02/19/2013)
Submission of 41 Unopposed MOTION for Leave to File Excess Pages , to District Judge William S. Duffey. (kt) (Entered: 03/04/2013)
43 NOTICE by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U. S. Department of Health and Human Services, U. S. Department of Labor, U. S. Department of Treasury re 27 MOTION to Dismiss Amended Complaint for Lack of Jurisdiction Supplemental Authority (Attachments: # 1 Exhibit Wenski v. Sebelius)(Pollack, Michael) (Entered: 03/21/2013)
44 SIXTH NOTICE by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U. S. Department of Health and Human Services, U. S. Department of Labor, U. S. Department of Treasury re 27 MOTION to Dismiss Amended Complaint for Lack of Jurisdiction of Supplemental Authority (Attachments: # 1 Exhibit EWTN v. Sebelius) (Pollack, Michael) Modified to add text on 3/29/2013 (bdb). (Entered: 03/28/2013)
45 NOTICE by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U. S. Department of Health and Human Services, U. S. Department of Labor, U. S. Department of Treasury re 27 MOTION to Dismiss Amended Complaint for Lack of Jurisdiction Seventh Notice of Supplemental Authority. (Pollack, Michael) (Entered: 04/09/2013)
46 NOTICE by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U. S. Department of Health and Human Services, U. S. Department of Labor, U. S. Department of Treasury re 27 MOTION to Dismiss Amended Complaint for Lack of Jurisdiction Eighth Notice of Supplemental Authority (Attachments: # 1 Exhibit Criswell College v. Sebelius)(Pollack, Michael) (Entered: 04/17/2013)
47 Notice for Leave of Absence for the following date(s): September 8−15, 2013, by Edward Kendrick Smith. (Smith, Edward) (Entered: 04/23/2013)
48 ORDER DIRECTING the parties to appear, by telephone, for a Status Conference with the Court on Monday, July 15, 2013 at 3:00 p.m. (Status Conference set for 7/15/2013 at 03:00 PM before Judge William S. Duffey Jr.) Signed by Judge William S. Duffey, Jr on 7/1/2013. (kt) (Entered: 07/02/2013)
NOTICE (by docket entry only) of TELECONFERENCE Reset: The telephonic Status Conference set for 7/15/2013 has been moved to 2:00 PM. (jdb) (Entered: 07/11/2013)
50 Minute Entry for Telephone Conference held on 7/15/2013 before Judge William S. Duffey, Jr: Status conf held by the Court. Dfts will withdraw their motion to dismiss as moot. Pffs shall file their amended complaint on or before 8/19/2013. Cnsl will discuss among themselves and submit a proposed schedule to the Court related to impending Pffs' motion for preliminary injunction and Dfts' motion to dismiss, or in the alternative, motion for summary judgment. (Court Reporter Nick Marrone)(kt) (Entered: 07/22/2013)
49 TRANSCRIPT of Teleconference Proceedings held on July 15, 2013, before Judge William S. Duffey, Jr. Court Reporter/Transcriber Nicholas A. Marrone, Telephone number 404−215−1486. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/8/2013. Redacted Transcript Deadline set for 8/19/2013. Release of Transcript Restriction set for 10/16/2013. (Attachments: # 1 Notice of Filing of Official Transcript) (kac) (Entered: 07/18/2013)
51 WITHDRAWAL OF MOTION re 27 MOTION to Dismiss Amended Complaint for Lack of Jurisdiction by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U. S. Department of Health and Human Services, U. S. Department of Labor, U. S. Department of Treasury (Pollack, Michael) Modified on 7/23/2013 in order to update docket text (anc). (Entered: 07/22/2013)

Case: 1:12-cv-3489 As of: 03/13/2018 12:47 PM EDT 12 of 20

07/24/2013 07/24/2013
07/24/2013 07/24/2013
07/24/2013 07/25/2013 08/08/2013
08/19/2013 08/19/2013 08/30/2013 09/03/2013 09/06/2013 09/06/2013
09/09/2013

ORDER (by docket entry only) denying as moot 41 Motion for Leave to File Excess Pages. Ordered by Judge William S. Duffey, Jr. on 7/24/13. (jdb) (Entered: 07/24/2013)
NOTICE FROM THE COURT (by docket entry only): Parties are advised to go to the district courts website at www.gand.uscourts.gov. On the home page, locate the Attorney Information link which will direct you to Preparation for a Civil and/or Criminal Trial Before Judge Duffey. Here, the Court has provided its Standing Order Regarding Civil Litigants. The Parties shall abide by this Standing Order throughout the processing of this case. Parties are instructed to pay particular attention to the requirements for Motions for Summary Judgment. (jdb) (Entered: 07/24/2013)
Notification of Docket Correction re 7/24/13 Notice From the Court re Standing Order. 7/24/13 Notice filed in error. (jdb) (Entered: 07/24/2013)
52 Joint MOTION for Leave to File Excess Pages in Connection with Preliminary Briefing by Catholic Charities of the Archdiocese of Atlanta, Inc., Christ the King Catholic School, The Most Reverend John Hartmayer, The Most Reverend Wilton D. Gregory, The Roman Catholic Archdiocese of Atlanta, The Roman Catholic Diocese of Savannah. (Attachments: # 1 Text of Proposed Order Proposed Order)(Williams, James) (Entered: 07/24/2013)
53 PROPOSED ORDER Parties' Proposed Scheduling Order for Preliminary Briefing re: 52 Joint MOTION for Leave to File Excess Pages in Connection with Preliminary Briefing. (Williams, James) (Entered: 07/24/2013)
54 SCHEDULING ORDER: APPROVING the Parties' 53 Proposed Scheduling Order for Preliminary Briefing. Signed by Judge William S. Duffey, Jr on 7/252013. (kt) (Entered: 07/26/2013)
55 Minute Entry for proceedings held before Judge William S. Duffey, Jr: Telephone Conference held on 8/8/2013. The 52 Motion for Leave to File Excess Pages is GRANTED IN PART AND DENIED IN PART. The Court will allow Pffs to file a 45−page motion for preliminary injunction. Dfts may file a 45−page response. Pffs may file a 15−page reply brief. The Court requires all subsequent motions be bound to the local rule on page limit requirements but may consider a future [narrow] request for an increase in page limits. (Court Reporter Montrell Vann)(anc) (Entered: 08/08/2013)
56 Second AMENDED COMPLAINT against All Defendants, filed by The Roman Catholic Archdiocese of Atlanta.(Smith, Edward) Please visit our website at http://www.gand.uscourts.gov/forms to obtain Pretrial Instructions which includes the Consent To Proceed Before U.S. Magistrate form. (Entered: 08/19/2013)
57 First MOTION for Preliminary Injunction with Brief In Support by The Roman Catholic Archdiocese of Atlanta. (Attachments: # 1 Brief, # 2 Exhibit)(Smith, Edward) (Entered: 08/19/2013)
58 NOTICE Of Filing Certified Administrative Record by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U. S. Department of Health and Human Services, U. S. Department of Labor, U. S. Department of Treasury (Attachments: # 1 Exhibit Certification of the Record, # 2 Exhibit Record Index)(Pollack, Michael) (Entered: 08/30/2013)
59 Administrative record received; 3 CDs placed in file (anc) (Entered: 09/05/2013)
Submission of 57 First MOTION for Preliminary Injunction , submitted to District Judge William S. Duffey. (anc) (Entered: 09/06/2013)
60 NOTICE of Appearance by Brian C. Lea on behalf of The Most Reverend John Hartmayer, The Most Reverend Wilton D. Gregory, The Roman Catholic Archdiocese of Atlanta, The Roman Catholic Diocese of Savannah, Catholic Charities of the Archdiocese of Atlanta, Inc., Catholic Education of North Georgia, Inc. (Lea, Brian) Modified on 9/9/2013 in order to add filing parties (anc). (Entered: 09/06/2013)
61 Unopposed MOTION for Leave to File Excess Pages , or for Clarification by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U. S. Department of Health and Human Services, U. S. Department of Labor, U. S. Department of Treasury. (Attachments: # 1 Text of Proposed Order)(Pollack, Michael) (Entered: 09/09/2013)

Case: 1:12-cv-3489 As of: 03/13/2018 12:47 PM EDT 13 of 20

09/12/2013
09/12/2013 09/23/2013 09/23/2013
09/25/2013 09/25/2013
09/26/2013 09/26/2013 09/26/2013 09/26/2013 09/26/2013 09/26/2013 09/26/2013 09/26/2013 09/26/2013 09/26/2013

62 ORDER GRANTING the 61 Motion for Leave to File Excess Pages. Defendants may file a 15−page brief in support of their motion to dismiss or motion for summary judgment (excluding the table of contents, table of authorities, and signature block) and, in that brief, may incorporate by reference their brief in opposition to Plaintiffs' Motion for Preliminary Injunction. Signed by Judge William S. Duffey, Jr on 9/12/2013. (anc) (Entered: 09/12/2013)
Clerks Certificate of Mailing as to John Curtis Thomas re 62 Order on Motion for Leave to File Excess Pages (anc) (Entered: 09/12/2013)
63 RESPONSE in Opposition re 57 First MOTION for Preliminary Injunction filed by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U. S. Department of Health and Human Services, U. S. Department of Labor, U. S. Department of Treasury. (Pollack, Michael) (Entered: 09/23/2013)
64 MOTION to Dismiss for Lack of Jurisdiction , MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , or in the alternative, , MOTION for Summary Judgment with Brief In Support by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U. S. Department of Health and Human Services, U. S. Department of Labor, U. S. Department of Treasury. (Attachments: # 1 Brief, # 2 Statement of Material Facts)(Pollack, Michael) −−Please refer to http://www.gand.uscourts.gov to obtain the Notice to Respond to Summary Judgment Motion form contained on the Court's website.−− Modified on 9/24/2013 in order to update docket text (anc). (Entered: 09/23/2013)
65 APPLICATION for Admission of Jenny Lee Pro Hac Vice by Jennifer Lee, Brigitte Amiri, Daniel Mach. (Attachments: # 1 Motion for Pro Hac Vice, # 2 Motion for Pro Hac Vice)(Brock, Chad) (Entered: 09/25/2013)
66 First MOTION for Leave to File Brief as Amici Curiae with Brief In Support by American Civil Liberties Union and American Civil Liberties Union Foundation of Georgia (Attachments: # 1 Brief, # 2 Text of Proposed Order)(Brock, Chad) Modified on 9/26/2013 in order to update docket text (anc). Modified on 9/26/2013 in order to correct filing party (anc). (Entered: 09/25/2013)
RETURN of 65 APPLICATION for Admission of Jenny Lee Pro Hac Vice to attorney for correction. (pb) (Entered: 09/26/2013)
67 APPLICATION for Admission of Jennifer Lee Pro Hac Vice by American Civil Liberties Union, American Civil Liberties Union Foundation of Georgia. (Brock, Chad) (Entered: 09/26/2013)
68 APPLICATION for Admission of Brigitte Amiri Pro Hac Vice by American Civil Liberties Union, American Civil Liberties Union Foundation of Georgia. (Brock, Chad) (Entered: 09/26/2013)
69 APPLICATION for Admission of Daniel Mach Pro Hac Vice by American Civil Liberties Union, American Civil Liberties Union Foundation of Georgia. (Brock, Chad) (Entered: 09/26/2013)
RETURN of 67 APPLICATION for Admission of Jennifer Lee Pro Hac Vice to attorney for correction. (pb) (Entered: 09/26/2013)
RETURN of 68 APPLICATION for Admission of Brigitte Amiri Pro Hac Vice to attorney for correction. (pb) (Entered: 09/26/2013)
70 APPLICATION for Admission of Jennifer Lee Pro Hac Vice (Application fee $ 150, receipt number 113E−4807798)by American Civil Liberties Union, American Civil Liberties Union Foundation of Georgia. (Brock, Chad) (Entered: 09/26/2013)
RETURN of 69 APPLICATION for Admission of Daniel Mach Pro Hac Vice to attorney for correction. (pb) (Entered: 09/26/2013)
71 APPLICATION for Admission of Brigitte Amiri Pro Hac Vice (Application fee $ 150, receipt number 113E−4807808)by American Civil Liberties Union, American Civil Liberties Union Foundation of Georgia. (Brock, Chad) (Entered: 09/26/2013)
72 APPLICATION for Admission of Daniel Mach Pro Hac Vice (Application fee $ 150, receipt number 113E−4807814)by American Civil Liberties Union, American Civil

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10/01/2013 10/02/2013 10/02/2013 10/02/2013 10/02/2013 10/02/2013 10/02/2013 10/08/2013
10/16/2013 10/16/2013 10/16/2013
10/16/2013 10/21/2013

Liberties Union Foundation of Georgia. (Brock, Chad) (Entered: 09/26/2013)
73 Unopposed MOTION modification of briefing instructions re 55 Order by The Roman Catholic Archdiocese of Atlanta, The Roman Catholic Diocese of Savannah. (Attachments: # 1 Text of Proposed Order)(Lea, Brian) Modified on 10/2/2013 in order to update docket text (anc). (Entered: 10/01/2013)
RETURN of 70 APPLICATION for Admission of Jennifer Lee Pro Hac Vice (Application fee $ 150, receipt number 113E−4807798) to attorney for correction re: petitioner's address. (pb) (Entered: 10/02/2013)
RETURN of 71 APPLICATION for Admission of Brigitte Amiri Pro Hac Vice (Application fee $ 150, receipt number 113E−4807808) to attorney for correction re: petitioner's address. (pb) (Entered: 10/02/2013)
RETURN of 72 APPLICATION for Admission of Daniel Mach Pro Hac Vice (Application fee $ 150, receipt number 113E−4807814) to attorney for correction re: petitioner's address. (pb) (Entered: 10/02/2013)
74 APPLICATION for Admission of Jennifer Lee Pro Hac Vice by American Civil Liberties Union, American Civil Liberties Union Foundation of Georgia. (Brock, Chad) (Entered: 10/02/2013)
75 APPLICATION for Admission of Daniel Mach Pro Hac Vice by American Civil Liberties Union, American Civil Liberties Union Foundation of Georgia. (Brock, Chad) (Entered: 10/02/2013)
76 APPLICATION for Admission of Brigitte Amiri Pro Hac Vice by American Civil Liberties Union, American Civil Liberties Union Foundation of Georgia. (Brock, Chad) (Entered: 10/02/2013)
ORDER (by docket entry only) granting 73 Unopposed Motion for Modification of Briefing Instructions. Plaintiffs may file a 55−page brief opposing defendants' motion to dismiss or, in the alternative, for summary judgment and supporting plaintiffs' motion for summary judgment, in addition to a 5−page reply brief in support of plaintiffs' motion for preliminary injunction, which may incorporate by reference relevant arguments contained in the first brief.Tables of contents, tables of authorities, and signature blocks do not count toward the page limits established by this order. Ordered by Judge William S. Duffey, Jr. on 10/8/13. (jdb) (Entered: 10/08/2013)
Submission of 57 First MOTION for Preliminary Injunction, 66 First MOTION for Leave to File Brief as Amici Curiae, 64 MOTION to Dismiss for Lack of Jurisdiction MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM. Submitted to District Judge William S. Duffey., Jr.(bdb) (Entered: 10/16/2013)
Submission of 66 First MOTION for Leave to File Brief as Amici Curiae. Submitted to District Judge William S. Duffey, Jr. (bdb) (Entered: 10/16/2013)
77 OPINION and ORDER denying 66 Motion for Leave to File Brief as Amici and therefore denying as moot 74 Application for Admission Pro Hac Vice Jennifer Lee; denying as moot 75 Application for Admission Pro Hac Vice Daniel Mach and denying as moot 76 Application for Admission Pro Hac Vice Brigitte Amiri which relate to 66 . Signed by Judge William S. Duffey, Jr. on 10/16/2013. (bdb) (Entered: 10/16/2013)
Clerk's Certificate of Mailing as to American Civil Liberties Union, American Civil Liberties Union Foundation of Georgia re 77 Order mailed to PHV Attorneys, Jennifer Lee, Daniel Mach and Brigitte Amiri. (bdb) (Entered: 10/16/2013)
78 MOTION for Summary Judgment with Brief In Support by Catholic Charities of the Archdiocese of Atlanta, Inc., Catholic Education of North Georgia, Inc., The Most Reverend John Hartmayer, The Most Reverend Wilton D. Gregory, The Roman Catholic Archdiocese of Atlanta, The Roman Catholic Diocese of Savannah. (Attachments: # 1 Brief Brief In Support of Plaintiffs' Motion for Summary Judgment and in Opposition to Defendants' Motion for Summary Judgment, # 2 Statement of Material Facts Plaintiffs' Statement of Material Facts and Additional Statement of Facts, # 3 Statement of Material Facts Plaintiffs' Response to Defendants' Statement of Material Facts)(Williams, James) −−Please refer to http://www.gand.uscourts.gov to

Case: 1:12-cv-3489 As of: 03/13/2018 12:47 PM EDT 15 of 20

10/21/2013
10/21/2013 10/21/2013 10/21/2013
10/21/2013 10/22/2013 11/12/2013 11/14/2013 11/14/2013 11/18/2013 11/18/2013 11/20/2013

obtain the Notice to Respond to Summary Judgment Motion form contained on the Court's website.−− (Entered: 10/21/2013)
79 AFFIDAVIT re 78 MOTION for Summary Judgment Second Declaration of Jo Ann Green by Catholic Charities of the Archdiocese of Atlanta, Inc., Catholic Education of North Georgia, Inc., Christ the King Catholic School, The Most Reverend John Hartmayer, The Most Reverend Wilton D. Gregory, The Roman Catholic Archdiocese of Atlanta, The Roman Catholic Diocese of Savannah. (Williams, James) (Entered: 10/21/2013)
80 AFFIDAVIT re 78 MOTION for Summary Judgment Second Declaration of Charles Thibaudeau by Catholic Charities of the Archdiocese of Atlanta, Inc., Catholic Education of North Georgia, Inc., The Most Reverend Wilton D. Gregory, The Roman Catholic Archdiocese of Atlanta, The Roman Catholic Diocese of Savannah. (Williams, James) (Entered: 10/21/2013)
81 DEPOSITION of Gary M. Cohen taken on April 16, 2013 by Catholic Charities of the Archdiocese of Atlanta, Inc., Catholic Education of North Georgia, Inc., The Most Reverend John Hartmayer, The Most Reverend Wilton D. Gregory, The Roman Catholic Archdiocese of Atlanta, The Roman Catholic Diocese of Savannah.(Williams, James) (Entered: 10/21/2013)
82 NOTICE Of Filing Notice of Hand Delivery of Plaintiffs' Supporting Excerpts by Catholic Charities of the Archdiocese of Atlanta, Inc., Catholic Education of North Georgia, Inc., The Most Reverend John Hartmayer, The Most Reverend Wilton D. Gregory, The Roman Catholic Archdiocese of Atlanta, The Roman Catholic Diocese of Savannah re 78 MOTION for Summary Judgment (Williams, James) (Entered: 10/21/2013)
83 REPLY BRIEF re 57 First MOTION for Preliminary Injunction filed by Catholic Charities of the Archdiocese of Atlanta, Inc., Catholic Education of North Georgia, Inc., The Most Reverend John Hartmayer, The Most Reverend Wilton D. Gregory, The Roman Catholic Archdiocese of Atlanta, The Roman Catholic Diocese of Savannah. (Williams, James) (Entered: 10/21/2013)
Submission of 57 First MOTION for Preliminary Injunction , submitted to District Judge William S. Duffey. (anc) (Entered: 10/22/2013)
84 Unopposed MOTION for Leave to File Excess Pages by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U. S. Department of Health and Human Services, U. S. Department of Labor, U. S. Department of Treasury. (Attachments: # 1 Text of Proposed Order)(Pollack, Michael) (Entered: 11/12/2013)
85 ORDER GRANTING 84 Motion for Leave to File Excess Pages. Defendants may file a 55−page brief, excluding the table of contents, table of authorities, and signature block. Signed by Judge William S. Duffey, Jr on 11/14/2013. (anc) (Entered: 11/14/2013)
Clerks Certificate of Mailing as to unregistered attorneys re 85 Order on Motion for Leave to File Excess Pages (anc) (Entered: 11/14/2013)
86 REPLY to Response to Motion re 64 MOTION to Dismiss for Lack of Jurisdiction MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , or in the alternative, MOTION for Summary Judgment filed by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U. S. Department of Health and Human Services, U. S. Department of Labor, U. S. Department of Treasury. (Pollack, Michael) (Entered: 11/18/2013)
87 RESPONSE in Opposition re 78 MOTION for Summary Judgment filed by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U. S. Department of Health and Human Services, U. S. Department of Labor, U. S. Department of Treasury. (Attachments: # 1 Statement of Material Facts Defendants' Response to Plaintiffs' Statement of Material Facts)(Pollack, Michael) (Entered: 11/18/2013)
Submission of 64 MOTION to Dismiss for Lack of Jurisdiction MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , or in the alternative, MOTION for Summary Judgment , submitted to District Judge William S. Duffey. (anc) (Entered: 11/20/2013)

Case: 1:12-cv-3489 As of: 03/13/2018 12:47 PM EDT 16 of 20

11/21/2013 11/22/2013 11/22/2013 11/25/2013
12/04/2013 12/05/2013 12/06/2013 12/20/2013 12/23/2013
12/23/2013 12/23/2013 12/23/2013 12/26/2013

88 First MOTION for Leave to File Excess Pages by The Most Reverend John Hartmayer, The Most Reverend Wilton D. Gregory, The Roman Catholic Archdiocese of Atlanta, The Roman Catholic Diocese of Savannah. (Attachments: # 1 Text of Proposed Order Proposed Order)(Lea, Brian) (Entered: 11/21/2013)
89 ORDER GRANTING 88 Motion for Leave to File Excess Pages. Plaintiffs may file a 30−page reply brief in support of their motion for summary judgment, excluding the table of contents, table of authorities, and signature block. Signed by Judge William S. Duffey, Jr on 11/22/2013. (anc) (Entered: 11/22/2013)
Clerks Certificate of Mailing as to unregistered attorneys re 89 Order on Motion for Leave to File Excess Pages, (anc) (Entered: 11/22/2013)
90 NOTICE of Supplemental Authority re 57 First MOTION for Preliminary Injunction by Catholic Charities of the Archdiocese of Atlanta, Inc., Catholic Education of North Georgia, Inc., The Most Reverend John Hartmayer, The Most Reverend Wilton D. Gregory, The Roman Catholic Archdiocese of Atlanta, The Roman Catholic Diocese of Savannah (Attachments: # 1 Exhibit Court's Injunction Opinion)(Smith, Edward) Modified on 11/27/2013 in order to update docket text (anc). (Entered: 11/25/2013)
91 REPLY BRIEF re 78 MOTION for Summary Judgment filed by The Roman Catholic Archdiocese of Atlanta, The Roman Catholic Diocese of Savannah. (Smith, Edward) (Entered: 12/04/2013)
Submission of 78 MOTION for Summary Judgment , submitted to District Judge William S. Duffey. (anc) (Entered: 12/05/2013)
92 RESPONSE re 90 Notice (Other), of Supplemental Authority filed by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U. S. Department of Health and Human Services, U. S. Department of Labor, U. S. Department of Treasury. (Pollack, Michael) (Entered: 12/06/2013)
93 NOTICE of Supplemental Authority re 64 MOTION to Dismiss by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U. S. Department of Health and Human Services, U. S. Department of Labor, U. S. Department of Treasury (Attachments: # 1 Exhibit Priests for Life v. HHS)(Pollack, Michael) Modified on 12/23/2013 in order to update docket text (anc). (Entered: 12/20/2013)
94 NOTICE by Catholic Charities of the Archdiocese of Atlanta, Inc., Catholic Education of North Georgia, Inc., The Most Reverend John Hartmayer, The Most Reverend Wilton D. Gregory, The Roman Catholic Archdiocese of Atlanta, The Roman Catholic Diocese of Savannah re 57 First MOTION for Preliminary Injunction Notice of Supplemental Authority (Attachments: # 1 Exhibit Archdiocese of New York Decision, # 2 Exhibit Zubik Decision, # 3 Exhibit Legatus Decision, # 4 Exhibit Reaching Souls Decision)(Smith, Edward) (Entered: 12/23/2013)
95 RESPONSE re 93 Notice (Other), Response to Notice of Supplemental Authority filed by Catholic Charities of the Archdiocese of Atlanta, Inc., Catholic Education of North Georgia, Inc., The Most Reverend John Hartmayer, The Most Reverend Wilton D. Gregory, The Roman Catholic Archdiocese of Atlanta, The Roman Catholic Diocese of Savannah. (Smith, Edward) (Entered: 12/23/2013)
96 NOTICE of Supplemental Authority</i by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U. S. Department of Health and Human Services, U. S. Department of Labor, U. S. Department of Treasury > (Attachments: # 1 Exhibit University of Notre Dame v. Sebelius)(Pollack, Michael) Modified on 12/23/2013 in order to update docket text (anc). (Entered: 12/23/2013)
97 RESPONSE re 94 Notice (Other),, Response to Notice of Supplemental Authority filed by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U. S. Department of Health and Human Services, U. S. Department of Labor, U. S. Department of Treasury. (Pollack, Michael) (Entered: 12/23/2013)
98 NOTICE of Supplemental Authority by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U. S. Department of Health and Human Services, U. S. Department of Labor, U. S. Department of Treasury (Attachments: # 1 Exhibit Catholic Diocese of Nashville v. Sebelius)(Pollack, Michael) Modified on 12/27/2013 in order to update docket text (anc). (Entered: 12/26/2013)

Case: 1:12-cv-3489 As of: 03/13/2018 12:47 PM EDT 17 of 20

12/27/2013 12/27/2013 12/27/2013 12/30/2013 12/30/2013 12/31/2013 12/31/2013 12/31/2013
01/14/2014 03/26/2014

99 NOTICE by The Most Reverend John Hartmayer, The Most Reverend Wilton D. Gregory, The Roman Catholic Archdiocese of Atlanta, The Roman Catholic Diocese of Savannah regarding Supplemental Authority (Attachments: # 1 Exhibit Geneva College v. Sebelius decision, # 2 Exhibit Southern Nazarene v. Sebelius decision)(Smith, Edward) (Entered: 12/27/2013)
100 RESPONSE re 99 Notice (Other), Response to Notice of Supplemental Authority filed by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U. S. Department of Health and Human Services, U. S. Department of Labor, U. S. Department of Treasury. (Pollack, Michael) (Entered: 12/27/2013)
101 NOTICE of Supplemental Authority by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U. S. Department of Health and Human Services, U. S. Department of Labor, U. S. Department of Treasury (Attachments: # 1 Exhibit Michigan Catholic Conference v. Sebelius)(Pollack, Michael) Modified on 1/2/2014 in order to update docket text (anc). (Entered: 12/27/2013)
102 RESPONSE to 101 , 99 and 96 Notices of Supplemental Authority filed by The Most Reverend John Hartmayer, The Most Reverend Wilton D. Gregory, The Roman Catholic Archdiocese of Atlanta, The Roman Catholic Diocese of Savannah. (Smith, Edward) Modified on 1/2/2014 in order to update docket text (anc). (Entered: 12/30/2013)
103 NOTICE of Supplemental Authority by The Most Reverend John Hartmayer, The Most Reverend Wilton D. Gregory, The Roman Catholic Archdiocese of Atlanta, The Roman Catholic Diocese of Savannah(Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Smith, Edward) Modified on 1/2/2014 in order to update docket text (anc). (Entered: 12/30/2013)
104 NOTICE of Supplemental Authority by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U. S. Department of Health and Human Services, U. S. Department of Labor, U. S. Department of Treasury (Attachments: # 1 Exhibit Univ. of Notre Dame v. Sebelius (7th Cir.))(Pollack, Michael) Modified on 1/2/2014 in order to update docket text (anc). (Entered: 12/31/2013)
105 NOTICE of Supplemental Authority re 57 First MOTION for Preliminary Injunction by The Most Reverend John Hartmayer, The Most Reverend Wilton D. Gregory, The Roman Catholic Archdiocese of Atlanta, The Roman Catholic Diocese of Savannah (Attachments: # 1 Exhibit)(Smith, Edward) Modified on 1/2/2014 in order to update docket text (anc). (Entered: 12/31/2013)
106 NOTICE of Supplemental Authority re 78 MOTION for Summary Judgment , 57 First MOTION for Preliminary Injunction by The Most Reverend John Hartmayer, The Most Reverend Wilton D. Gregory, The Roman Catholic Archdiocese of Atlanta, The Roman Catholic Diocese of Savannah (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Smith, Edward) Modified on 1/2/2014 in order to update docket text (anc). (Entered: 12/31/2013)
107 Notice for Leave of Absence for the following date(s): March 10−14, 2014, September 2−12, 2014, by Edward Kendrick Smith. (Smith, Edward) (Entered: 01/14/2014)
108 OPINION AND ORDER that the Defendants are PERMANENTLY RESTRAINED and ENJOINED from enforcing the contraceptive mandate against Plaintiffs CENGI and Catholic Charities. IT IS FURTHER ORDERED that the Government is PERMANENTLY RESTRAINED and ENJOINED from enforcing the requirement against CENGI and Catholic Charities to execute and deliver a self−certification form to their TPA. IT IS FURTHER ORDERED that Plaintiff CENGI and Plaintiff Catholic Charities' Motion for Summary Judgment is GRANTED in part and DENIED in part 78 . CENGI and Catholic Charities' Motion for Summary Judgment on their RFRA claim is GRANTED. Summary Judgment on the claim that the accommodation violates the First Amendment because it places a content−based restriction on their freedom of speech is also GRANTED. The Motion for Summary Judgment on their remaining claims is DENIED. IT IS FURTHER ORDERED that the Motion for Summary Judgment filed by Plaintiffs Atlanta Archdiocese, Savannah Diocese, Archbishop Gregory and Bishop Hartmayer is DENIED AS MOOT with respect to all claims, including claims based on the RFRA and the federal constitution, because, as the Government acknowledges, these Plaintiffs are exempt from the contraceptive

Case: 1:12-cv-3489 As of: 03/13/2018 12:47 PM EDT 18 of 20

03/26/2014 04/03/2014
04/15/2014 04/21/2014 04/23/2014
04/24/2014 05/21/2014 05/23/2014 05/23/2014
05/23/2014 05/23/2014 05/30/2014

mandate and the requirements of the accommodation 78 . IT IS FURTHER ORDERED that Defendants' Motion to Dismiss or, in the alternative, for Summary Judgment regarding the Plaintiffs' claims based on the Establishment Clause, the APA, and the unconstitutional delegation of congressional authority is GRANTED 64 . IT IS FURTHER ORDERED that Plaintiffs' Motion for Preliminary Injunction is DENIED AS MOOT 57 . Signed by Judge William S. Duffey, Jr on 3/26/2014. (anc) (Entered: 03/26/2014)
Clerks Certificate of Mailing as to John Curtis Thomas re 108 Order (anc) (Entered: 03/26/2014)
109 MOTION for Reconsideration and/or MOTION for Clarification of Specific Issues in 108 Order by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U. S. Department of Health and Human Services, U. S. Department of Labor, U. S. Department of Treasury. (Pollack, Michael) Modified on 4/3/2014 in order to update docket text (anc). Modified on 4/24/2014 in order to update motion text (anc). (Entered: 04/03/2014)
110 RESPONSE in Opposition re 109 MOTION for Reconsideration filed by Catholic Charities of the Archdiocese of Atlanta, Inc., Catholic Education of North Georgia, Inc., Christ the King Catholic School. (Lea, Brian) Modified on 4/21/2014 in order to update docket text (anc). (Entered: 04/15/2014)
Submission of 109 MOTION for Reconsideration, submitted to District Judge William S. Duffey. (anc) (Entered: 04/21/2014)
111 REPLY to Response to 109 MOTION for Reconsideration re 108 Order filed by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U. S. Department of Health and Human Services, U. S. Department of Labor, U. S. Department of Treasury. (Pollack, Michael) Modified on 4/24/2014 in order to update docket text (anc). (Entered: 04/23/2014)
Submission of 109 MOTION for Reconsideration re 108 Order, submitted to District Judge William S. Duffey. (anc) (Entered: 04/24/2014)
112 MOTION to Withdraw Michael C. Pollack as Attorneyby Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U. S. Department of Health and Human Services, U. S. Department of Labor, U. S. Department of Treasury. (Pollack, Michael) (Entered: 05/21/2014)
ORDER (by docket entry only) granting 112 Motion to Withdraw as Attorney. Attorney Michael C. Pollack terminated. Ordered by Judge William S. Duffey, Jr. on 5/23/14. (jdb) (Entered: 05/23/2014)
113 NOTICE OF APPEAL as to 108 Order on Motion for Preliminary Injunction, Order on Motion to Dismiss, Order on Motion to Dismiss for Failure to State a Claim, Order on Motion for Summary Judgment,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U. S. Department of Health and Human Services, U. S. Department of Labor, U. S. Department of Treasury. Transcript Order Form due on 6/6/2014 (Bennett, Michelle) (Entered: 05/23/2014)
114 NOTICE Of Filing Appeal Transmission Letter by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U. S. Department of Health and Human Services, U. S. Department of Labor, U. S. Department of Treasury re: 113 Notice of Appeal. (kac) (Entered: 05/23/2014)
115 Transmission of Certified Copy of Notice of Appeal, Order and Docket Sheet to US Court of Appeals re: 113 Notice of Appeal. (kac) (Entered: 05/23/2014)
116 OPINION AND ORDER that the Defendants' 109 Motion for Reconsideration is GRANTED in part and DENIED in part. It is GRANTED with respect to the Defendants' request to enter a final judgment on the Diocesan Plaintiffs' RFRA claim, and the Plaintiffs' free exercise clause, compelled speech, and internal church governance claims. IT IS FURTHER ORDERED that the Defendants' Motion to Dismiss or, in the alternative, for Summary Judgment 64 on the Diocesan Plaintiffs RFRA claim, and the Plaintiffs' free exercise clause, compelled speech, and internal church governance claims is GRANTED. Defendants' Motion for Reconsideration is DENIED with respect to the Defendants' claim that the Court should reevaluate its

Case: 1:12-cv-3489 As of: 03/13/2018 12:47 PM EDT 19 of 20

05/30/2014 05/30/2014
05/30/2014 07/02/2014 07/15/2014 07/15/2014 07/18/2014 07/18/2014 07/18/2014 07/31/2014 08/14/2014 08/14/2014

RFRA analysis because Plaintiffs did not allege that they operate and maintain a church plan within the meaning of ERISA. Given that the Court's March 26, 2014 Opinion and Order granted the Plaintiffs'Motion for Summary Judgment on the RFRA claim raised by Plaintiffs Catholic Charities and CENGI, and the Plaintiffs' gag−order claim, the Defendants' Motion to Dismiss, or in the alternative, for Summary Judgment on these claims is necessarily DENIED.. Signed by Judge William S. Duffey, Jr on 5/30/2014. (anc) (Entered: 05/30/2014)
Clerks Certificate of Mailing as to John Curtis Thomas re 116 Order and 117 Clerk's Judgment (anc) Modified on 5/30/2014 in order to update docket text (anc). (Entered: 05/30/2014)
117 CLERK'S JUDGMENT entered dismissing case. Defendants are PERMANENTLY RESTRAINED and ENJOINED from enforcing the contraceptive mandate against Plaintiffs CENGI and Catholic Charities. Defendants are PERMANENTLY RESTRAINED and ENJOINED from enforcing the requirement against CENGI and Catholic Charities to execute and deliver a self−certification form to their TPA. Judgment is entered in favor of Plaintiffs Catholic Charities and CENGI and against Defendants on Plaintiffs Catholic Charities and CENGIs gag−order claim and Religious Freedom Restoration Act claim. Judgment is entered in favor of Defendants and against Plaintiffs on Plaintiffs' free exercise clause, compelled speech, internal church governance, Establishment Clause, APA, and unconstitutional delegation of authority claims. Judgment is entered in favor of Defendants and against the Diocesan Plaintiffs on the Diocesan Plaintiffs' Religious Freedom Restoration Act and gag−order claims. (anc)−−Please refer to http://www.ca11.uscourts.gov to obtain an appeals jurisdiction checklist−− (Entered: 05/30/2014)
Civil Case Terminated. (anc) (Entered: 05/30/2014)
118 USCA Acknowledgment of 113 Notice of Appeal, filed by U. S. Department of Treasury, U. S. Department of Labor, Kathleen Sebelius, Thomas Perez, Jacob J. Lew and U. S. Department of Health and Human Services. Case Appealed to USCA− 11th Circuit. Case Number 14−12890−C. (pjm) (Entered: 07/02/2014)
119 TRANSCRIPT ORDER FORM (No transcript is required for appeal purposes) re: 113 Notice of Appeal. FRAP 11 to be entered by 7/28/14 (Bennett, Michelle) Modified on 7/15/2014 to update text (pjm). (Entered: 07/15/2014)
Pursuant to F.R.A.P.11(c), the Clerk certifies that the record is complete for purposes of this appeal, 113 Notice of Appeal. Case Appealed to USCA− 11th Circuit. Case Number 14−12890−CC. The entire record on appeal is available electronically. (pjm) (Entered: 07/15/2014)
120 NOTICE OF APPEAL as to 117 Clerk's Judgment,,,, 116 Order on Motion for Reconsideration, Order on Motion for Clarification,,,,,,,,,, by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U. S. Department of Health and Human Services, U. S. Department of Labor, U. S. Department of Treasury. Transcript Order Form due on 8/1/2014 (Bennett, Michelle) (Entered: 07/18/2014)
121 NOTICE Of Filing of NOA Transmittal Letter re: 120 Notice of Appeal. (pjm) (Entered: 07/18/2014)
122 Transmission of Certified Copy of Notice of Appeal, Judgment, Order and Docket Sheet to US Court of Appeals re: 120 Notice of Appeal. (pjm) (Entered: 07/18/2014)
123 USCA Acknowledgment of 120 Notice of Appeal, filed by U. S. Department of Treasury, U. S. Department of Labor, Kathleen Sebelius, Thomas Perez, Jacob J. Lew and U. S. Department of Health and Human Services. Case Appealed to USCA− 11th Circuit. Case Number 14−13239−C. (pjm) (Entered: 08/01/2014)
124 TRANSCRIPT ORDER FORM (No transcript is required for appeal purposes) re: 120 Notice of Appeal. F.R.A.P.11 Certification due 8/28/14. (Bennett, Michelle) Modified on 8/14/2014 to update text(pjm). (Entered: 08/14/2014)
Pursuant to F.R.A.P.11(c), the Clerk certifies that the record is complete for purposes of this appeal, 120 Notice of Appeal. Case Appealed to USCA− 11th Circuit. Case Number 14−13239−CC. The entire record on appeal is available electronically. (pjm) (Entered: 08/14/2014)

Case: 1:12-cv-3489 As of: 03/13/2018 12:47 PM EDT 20 of 20

10/29/2014
10/29/2014 01/13/2015
01/14/2015 01/16/2015 07/14/2015 11/07/2017

125 ENTRY OF DISMISSAL of USCA DISMISSING 120 Notice of Appeal, filed by U. S. Department of Treasury, U. S. Department of Labor, Kathleen Sebelius, Thomas Perez, Jacob J. Lew and U. S. Department of Health and Human Services for want of prosecution because the appellants have failed to file a brief within the time fixed by the rules. Case Appealed to USCA− 11th Circuit. Case Number 14−13239−CC. (pjm) (Entered: 10/29/2014)
126 Appeal notice from USCA REINSTATING 120 Notice of Appeal. Case Appealed to USCA− 11th Circuit. Case Number 14−13239−CC. (pjm) (Entered: 10/29/2014)
127 NOTICE by Catholic Charities of the Archdiocese of Atlanta, Inc., Catholic Education of North Georgia, Inc., Christ the King Catholic School, The Most Reverend John Hartmayer, The Most Reverend Wilton D. Gregory, The Roman Catholic Archdiocese of Atlanta, The Roman Catholic Diocese of Savannah Notice of Leave of Absence for March 7−15, 2015 (Smith, Edward) (Entered: 01/13/2015)
128 Notice for Leave of Absence for the following date(s): March 7−15, 2015, by Edward Kendrick Smith. (anc) (Entered: 01/14/2015)
129 Notice for Leave of Absence for the following date(s): March 7−15, 2015, by Edward Kendrick Smith. (anc) (Entered: 01/16/2015)
130 Notice for Leave of Absence for the following date(s): August 24−28, 2015, by Edward Kendrick Smith. (Smith, Edward) (Entered: 07/14/2015)
131 Certified copy of USCA ORDER: Motion to voluntarily dismiss appeal filed by Appellants U.S. Department of Labor, U.S. Department of Health and Human Services, Secretary, U.S. Department of the Treasury, U.S. Department of the Treasury, Secretary, U.S. Department of Health and Human Services and Secretary, U.S. Department of Labor is GRANTED. In 14−12890, Motion to voluntarily dismiss appeal filed by Appellants U.S. Department of Labor, U.S. Department of Health and Human Services, Secretary, U.S. Department of the Treasury, U.S. Department of the Treasury, Secretary, U.S. Department of Health and Human Services and Secretary, U.S. Department of Labor is GRANTED re: 113 Notice of Appeal, filed by U. S. Department of Treasury, U. S. Department of Labor, Kathleen Sebelius, Thomas Perez, Jacob J. Lew, U. S. Department of Health and Human Services and 120 Notice of Appeal, filed by U. S. Department of Treasury, U. S. Department of Labor, Kathleen Sebelius, Thomas Perez, Jacob J. Lew, U. S. Department of Health and Human Services. Case Appealed to USCA− 11th Circuit. Case Numbers 14−12890−CC & 14−13239−CC. (pjm) (Entered: 11/07/2017)

 
 Case: 14-12696 Date Filed: 02/18/2016 Page: 1 of 148
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 14-12696 ________________________
D.C. Docket No. 1:13-cv-00521-CG-C
ETERNAL WORD TELEVISION NETWORK, INC.,
Plaintiff - Appellant,
STATE OF ALABAMA,
Plaintiff,
versus
SECRETARY OF THE U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, SECRETARY OF THE U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF LABOR, SECRETARY OF THE U.S. DEPARTMENT OF THE TREASURY, U.S. DEPARTMENT OF THE TREASURY,
Defendants - Appellees. ________________________
Appeals from the United States District Court for the Southern District of Alabama ________________________

Case: 14-12696 Date Filed: 02/18/2016 Page: 2 of 148
________________________
Nos. 14-12890; 14-13239 ________________________
D.C. Docket No. 1:12-cv-03489-WSD
THE ROMAN CATHOLIC ARCHDIOCESE OF ATLANTA, an association of churches and schools, THE MOST REVEREND WILTON D. GREGORY, and his successors, Archbishop of the Roman Catholic Archdiocese of Atlanta, CATHOLIC CHARITIES OF THE ARCHDIOCESE OF ATLANTA, INC., a Georgia non-profit corporation, THE ROMAN CATHOLIC DIOCESE OF SAVANNAH, an ecclesiastical territory, THE MOST REVEREND JOHN HARTMAYER, and his successors, Bishop of the Roman Catholic Diocese of Savannah, et al.,
Plaintiffs - Appellees,
versus
SECRETARY, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY, SECRETARY, U.S. DEPARTMENT OF LABOR, SECRETARY, U.S. DEPARTMENT OF TREASURY,
Defendants - Appellants.
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________________________
Appeals from the United States District Court for the Northern District of Georgia ________________________ (February 18, 2016)
Before TJOFLAT, JILL PRYOR and ANDERSON, Circuit Judges.
JILL PRYOR, Circuit Judge:
The plaintiffs in these consolidated appeals challenge the regulations
implementing what is known as the “contraceptive mandate” of the Affordable
Care Act (“ACA”)—the requirement that employers provide health insurance coverage for preventive care (including contraception) to women.1 Specifically,
the plaintiffs argue that the regulations’ accommodation for nonprofit
organizations with a religious objection to providing contraceptive coverage
violates the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb, et
seq. They claim that the accommodation substantially burdens their religious
exercise in violation of RFRA by forcing them to take actions that cause their
health plan administrators to provide contraceptive coverage and to maintain a
health plan that serves as a conduit for contraceptive coverage. We reject the
1 We consider in this opinion the following district court orders: Eternal World Television Network, Inc. v. Burwell, 26 F. Supp. 3d 1228 (S.D. Ala. 2014); Roman Catholic Archdiocese of Atlanta v. Sebelius, No. 1:12-cv-03489-WSD, 2014 WL 2441742 (N.D. Ga. May 30, 2014); and Roman Catholic Archdiocese of Atlanta v. Sebelius, No. 1:12-cv-03489-WSD, 2014 WL 1256373 (N.D. Ga. Mar. 26, 2014). The government filed separate appeals from the two orders in Roman Catholic Archdiocese, which were consolidated before this Court.
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plaintiffs’ claims because we conclude that the regulations do not substantially burden their religious exercise and, alternatively, because (1) the government has compelling interests to justify the accommodation, and (2) the accommodation is the least restrictive means of furthering those interests.
Eternal Word Television Network (“EWTN”), the plaintiff in the first appeal, also raises several First Amendment challenges to the accommodation. Because the accommodation is a neutral, generally applicable law that does not discriminate based on religious denomination, we reject EWTN’s challenges under the Establishment and Free Exercise Clauses. We also reject EWTN’s challenge under the Free Speech Clause because, as discussed below, any speech restrictions that may flow from the accommodation are justified by a compelling governmental interest and are thus constitutional.
I. BACKGROUND A. The Affordable Care Act and the Contraceptive Mandate
Enacted in 2010, the ACA requires group health insurance plans to provide a minimum floor of coverage without imposing cost sharing (such as deductibles, co-payments, or co-insurance) on plan participants and beneficiaries. 42 U.S.C. § 300gg-13(a). If an employer fails to provide such coverage in its group employee health plan, it is subject to penalties in the form of a tax of $100 per day per affected person. 26 U.S.C. § 4980D(b)(1). The Women’s Health Amendment
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to the ACA added to the minimum coverage requirements a mandate that group health plans provide women with coverage for preventive care and screenings. 42 U.S.C. § 300gg-13(a)(4). The requirement was intended in part to “get[] rid of, or minimiz[e], high copays and high deductibles that are often overwhelming hurdles for women to access screening programs.” 155 Cong. Rec. S11987 (Nov. 30, 2009) (statement of Sen. Mikulski). The ACA tasked the Health Resources and Services Administration (“HRSA”), an agency of the Department of Health and Human Services (“HHS”), with promulgating comprehensive guidelines determining which preventive services and screenings would be required. 42 U.S.C. § 300gg-13(a)(4). HHS commissioned the Institute of Medicine (“IOM”) to assist with HRSA’s development of the guidelines.
The IOM released a full report in 2011 detailing its study of various preventive services and its recommendations for coverage under the mandate. Inst. of Medicine, Clinical Preventive Services for Women: Closing the Gaps (2011) (“IOM Report”). The IOM Report discussed at length the positive public health outcomes associated with reducing unintended pregnancies and giving women more control over birth spacing. The United States has a much higher rate of unintended pregnancies—49 percent of pregnancies in 2001—than other developed countries. Id. at 102. Unintended pregnancies correlate with health problems both for women who experience such pregnancies and for children born
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as a result of them. Id. at 103. And because women may not realize immediately
that they are pregnant, “their entry into prenatal care may be delayed[;] they may
not be motivated to discontinue behaviors that present risks for the developing
fetus; and they may experience depression, anxiety, or other conditions.” Id. Unintended pregnancies also frequently end in abortion. Id. at 102.2
The IOM Report also noted the health consequences of pregnancies
occurring too closely together in time. For infants, “[s]hort interpregnancy
intervals in particular have been associated with low birth weight, prematurity, and
small for gestational age births.” Id. at 103. For women, both pregnancy spacing
and the ability to avoid pregnancy may significantly affect their health because,
among other reasons, some “women with certain chronic medical conditions (e.g.,
diabetes and obesity) may need to postpone pregnancy until appropriate weight
loss or glycemic control has been achieved.” Id. Pregnancy is also contraindicated
for some women with serious medical conditions, for example, pulmonary hypertension or Marfan syndrome.3 Id. at 103-04. The IOM Report also found
2 A 2013 report from the Centers for Disease Control and Prevention estimated that 18 percent of all pregnancies in the United States ended in abortion and noted that “unintended pregnancy precedes nearly all abortions.” Karen Pazol, et al., Centers for Disease Control & Prevention, Abortion Surveillance—United States, 2010 (Nov. 29, 2013), http://www.cdc.gov/mmwr/preview/mmwrhtml/ss6208a1.htm. The IOM Report noted that in 2001, 42 percent of unintended pregnancies in the United States were terminated by abortion. IOM Report at 102.
3 Marfan syndrome is a genetic disorder that affects the body’s connective tissue. Pregnancy can be difficult for women with the condition because of the additional strain
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that “greater use of contraception within the population produces lower unintended pregnancy and abortion rates nationally.” Id. at 105.
Pursuant to its statutory authority, HRSA released binding guidelines, based on the IOM Report, that require coverage for “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” U.S. Dep’t of Health & Human Servs., Health Res. & Servs. Admin., Women’s Preventive Services Guidelines (“HRSA guidelines”), http://www.hrsa.gov/womensguidelines (last visited Feb. 12, 2016); see also 77 Fed. Reg. 8725, 8725-26 (Feb. 15, 2012) (quoting the language in the HRSA guidelines regarding coverage). Implementing regulations developed by the Department of Labor, the Department of the Treasury, and HHS (collectively, the “Departments”) reiterate the contraceptive mandate’s requirement that health plans cover all services listed in the HRSA guidelines. 26 C.F.R. § 54.9815-2713(a)(1)(iv) (Treasury Regulation); 29 C.F.R § 2590.715-2713(a)(1)(iv) (Labor Regulation); 45 C.F.R. § 147.130(a)(1)(iv) (HHS Regulation).4
pregnancy places on the cardiovascular system. Nat’l Heart, Lung, & Blood Inst., What is Marfan Syndrome? (Oct. 1, 2010), http://www.nhlbi.nih.gov/health/health-topics/topics/mar/.
4 The Departments have jointly developed regulations carrying out the ACA. To be concise, whenever possible we cite only to the regulations issued by HHS, codified at 45 C.F.R. pt. 147, and not to the corresponding identical regulations issued by the Departments of Labor and the Treasury.
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Mindful of religious freedom and the importance of respect for “the unique relationship between a house of worship and its employees in ministerial positions,” the Departments promulgated interim regulations that gave HRSA discretion to exempt from the contraceptive mandate certain group health plans established or maintained by religious employers. See 76 Fed. Reg. 46621, 46623 (Aug. 3, 2011). The Departments defined “religious employer” by incorporating the Internal Revenue Service’s definition of a church or integrated auxiliary from 26 U.S.C. § 6033(a)(3)(A)(i) and (iii). 45 C.F.R. § 147.130(a)(1)(iv)(B) (2011). The definition also required a religious employer to have a religious purpose and to both serve and employ primarily persons who share the religious tenets of the organization. Id. Exercising the discretion the regulations provided, HRSA amended its guidelines to exempt religious employers from the contraceptive mandate. The guidelines, issued on August 1, 2011, required compliance beginning on August 1, 2012. See id. § 147.130(b)(1).
The Departments finalized the implementing regulations in February 2012. See 77 Fed. Reg. 8725. At the same time, the Departments established a temporary safe harbor from the contraceptive mandate for nonprofit organizations with religious objections to providing contraceptive coverage. See Dep’t of Health & Human Servs., Guidance on the Temporary Enforcement Safe Harbor for Certain Employers, Health Plans & Group Health Insurance Issuers with Respect to the
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Requirement to Cover Contraceptive Services Without Cost Sharing (Feb. 10, 2012). The safe harbor remained in effect for the 2012 plan year, ending on August 1, 2013. See id. at 2.
The Departments intended to use the safe harbor period to “expeditiously develop and propose changes to the final regulations implementing” the contraceptive mandate. 77 Fed. Reg. 16501, 16503 (Mar. 21, 2012). The changes to the regulations needed to “meet two goals—accommodating non-exempt, nonprofit religious organizations’ religious objections to covering contraceptive services and assuring that participants and beneficiaries covered under such organizations’ plans receive contraceptive coverage without cost sharing.” Id. In March 2012, the Departments began the rulemaking process and solicited comments on potential regulations that could achieve these two goals. Id. at 16501.
At the conclusion of the rulemaking process in July 2013, the Departments promulgated revised regulations that retained HRSA’s authority to exempt religious employers. See 78 Fed. Reg. 39870 (July 2, 2013). The same day, HRSA released revised guidelines that tracked the Departments’ changes to the religious employer exemption. The final regulations simplified the definition of a “religious employer,” making the term coextensive with the IRS’s statutory definition and removing the additional qualifications regarding a religious
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employer’s mission, programs, and employees. 45 C.F.R. § 147.131(a) (2013); see also 78 Fed. Reg. at 39873-74. Religious employers remained categorically exempt from the contraceptive mandate out of “respect [for] the religious interests of houses of worship and their integrated auxiliaries.” 78 Fed. Reg. at 39874. The Departments noted that the exemption did not undermine their goal of making contraceptive coverage available because religious employers and their integrated auxiliaries “are more likely than other employers to employ people of the same faith who share the same objection, and who would therefore be less likely than other people to use contraceptive services even if such services were covered under their plan.” Id.
The revised regulations, which took effect on Aug. 1, 2013, added an accommodation for organizations that do not qualify as religious employers under the exemption. See 45 C.F.R. § 147.131(b) (2013). So long as an organization is a nonprofit entity holding itself out as a religious organization and has a religious objection to providing contraceptive coverage (we refer to such entities as “eligible organizations”), it may opt out of the contraceptive mandate. Id.5
5 Under 45 C.F.R. § 147.131(b), an organization is eligible for the accommodation if: (1) The organization opposes providing coverage for some or all of any contraceptive items or services required to be covered under § 147.130(a)(1)(iv) on account of religious objections. (2) (i) The organization is organized and operates as a nonprofit entity and holds itself out as a religious organization; or
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Eligible organizations can take advantage of the accommodation via one of
two procedures. The first procedure requires the organization to complete
Employee Benefits Security Administration Form 700 (“Form 700”). See EBSA
Form 700–Certification (Aug. 2014),
http://www.dol.gov/ebsa/preventiveserviceseligibleorganizationcertificationform.doc. 6 To complete the two-page form, the eligible organization must provide its name
and the name, title, and contact information of the individual signing the form on
behalf of the organization. The person signing the form must certify that the
organization “has a religious objection to providing coverage for some or all of any
contraceptive services that would otherwise be required to be covered.” Id.
(ii) The organization is organized and operates as a closely held for-profit entity, as defined in paragraph (b)(4) of this section, and the organization’s highest governing body (such as its board of directors, board of trustees, or owners, if managed directly by its owners) has adopted a resolution or similar action, under the organization’s applicable rules of governance and consistent with state law, establishing that it objects to covering some or all of the contraceptive services on account of the owners’ sincerely held religious beliefs. (3) The organization must self-certify in the form and manner specified by the Secretary of Labor or provide notice to the Secretary of Health and Human Services as described in paragraph (c) of this section. The organization must make such self-certification or notice available for examination upon request by the first day of the first plan year to which the accommodation in paragraph (c) of this section applies. The self-certification or notice must be executed by a person authorized to make the certification or notice on behalf of the organization, and must be maintained in a manner consistent with the record retention requirements under section 107 of ERISA. 6 Form 700 is included as the appendix to this opinion.
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The form’s recipient depends on the type of health plan the eligible organization maintains. Employers can provide health benefits either through an insured health plan or a self-insured health plan.7 See Cong. Budget Office, Key Issues in Analyzing Major Health Insurance Proposals 6 (2008). If the eligible organization has an insured plan, it gives Form 700 to the insurance company that provides its health plan (“plan provider”); if the organization has a self-insured plan, it gives Form 700 to its third-party administrator (“TPA”). The plaintiffs in both cases before us provide health benefits to their employees through selfinsured group health plans, and all employ TPAs to administer their plans.
Alternatively, an eligible organization may directly notify HHS of its religious objection to complying with the contraceptive mandate. This more recently developed method of taking advantage of the accommodation arose from the United States Supreme Court’s order granting a preliminary injunction in Wheaton College v. Burwell, 134 S. Ct. 2806 (2014). After the regulations concerning the exemption and accommodation procedures were finalized, the Supreme Court in Burwell v. Hobby Lobby Stores, 134 S. Ct. 2751, 2759-60 (2014), extended the accommodation for nonprofit religious organizations to
7 For insured health plans, the employer contracts with an insurance company that administers the group plan and pays claims. For self-insured plans, the financial risk of providing health insurance lies with the organization itself; the organization directly pays for the plan participants’ and beneficiaries’ claims. Usually, organizations with self-insured plans hire a third party to handle administrative tasks, such as developing provider networks and processing claims.
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closely held for-profit corporations whose owners have religious objections to complying with the contraceptive mandate. Three days after the Hobby Lobby decision was issued, the Supreme Court in Wheaton College granted a request for a preliminary injunction pending appellate review to a plaintiff challenging the accommodation itself under RFRA, the same challenge the plaintiffs mount here. Wheaton Coll., 134 S. Ct. at 2807. The Supreme Court’s order enjoined HHS from enforcing the accommodation procedure against the college, so long as the college “inform[ed] the Secretary of Health and Human Services in writing that it is a nonprofit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services.” Id. The Supreme Court warned, however, that the injunction order “should not be construed as an expression of the Court’s views on the merits.” Id.8
In response to the order in Wheaton College, the Departments issued interim final regulations in August 2014 to allow an eligible organization to opt out by sending a letter to HHS, instead of giving Form 700 to its plan provider or TPA. 79 Fed. Reg. 51092, 51094-95 (Aug. 27, 2014); see Ctr. for Medicare & Medicaid Servs., Model Notice, https://www.cms.gov/CCIIO/Resources/Regulations-and-
8 The Seventh Circuit recently resolved Wheaton College’s appeal, affirming the district court’s denial of the college’s request for a preliminary injunction. Wheaton Coll. v. Burwell, 791 F.3d 792 (7th Cir. 2015).
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Guidance/Downloads/Model-Notice-8-22-14.pdf (last visited Feb. 12, 2016).9
There is no prescribed format for the letter, but it must include:
the name of the eligible organization and the basis on which it qualifies for an accommodation; its objection based on its sincerely held religious beliefs to coverage of some or all contraceptive services, as applicable (including an identification of the subset of contraceptive services to which coverage the eligible organization objects, if applicable); the plan name and type . . . ; and the name and contact information for any of the plan’s third party administrators and health insurance issuers.
45 C.F.R. § 147.131(c)(1)(ii).
The regulations became final, without substantial changes, in a set of new
rules effective on September 14, 2015. 80 Fed. Reg. 41318 (July 14, 2015). Under
the current rules, if an eligible organization directly notifies HHS of its intent to
opt out of the contraceptive mandate, the government then alerts the organization’s
health plan provider or TPA that the organization has opted out and describes the
plan provider’s or TPA’s resulting obligations. See 26 C.F.R. § 54.9815-
2713A(b)(1)(ii)(B), (c)(1)(ii).
For insured plans, once an eligible organization avails itself of the
accommodation, the plan provider must (1) “[e]xpressly exclude contraceptive
9 The interim final regulations also removed a provision (known as the non-interference provision) requiring that eligible organizations “‘must not, directly or indirectly[,] seek to interfere with a third party administrator’s arrangements to provide or arrange for separate payments for contraceptive services,’ and ‘must not, directly or indirectly, seek to influence a third party administrator’s decision to make any such arrangements.’” 79 Fed. Reg. at 51095 (quoting 26 C.F.R. § 54.9815-2713A(b)(1)(iii); 29 C.F.R. § 2590.715-2713A(b)(1)(iii)).
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coverage from the group health insurance coverage” and (2) “[p]rovide separate payments for any contraceptive services required to be covered” for the plan participants and beneficiaries. 45 C.F.R. § 147.131(c)(2)(i).
For self-insured plans, the regulations provide that when an eligible organization invokes the accommodation, its TPA is designated as the plan administrator under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1002(16), with respect to contraceptive services. Under the regulations, the TPA is designated as the plan administrator in one of two ways. If the eligible organization provides a copy of Form 700 to its TPA, then the regulations treat the form “as a designation of the [TPA] as the plan administrator” for ERISA purposes. 29 C.F.R. § 2510.3-16(b). If the eligible organization instead notifies HHS of its intent to opt out, then the Department of Labor notifies the TPA that it shall be the plan administrator with respect to contraceptive services for ERISA purposes. Id.
Upon receiving notification, the TPA has the option of terminating its contractual relationship with the eligible organization.10 See 26 C.F.R. § 54.9815-
10 If the TPA terminates the relationship, the organization must (1) contract with a new TPA to administer its self-insured plan, (2) convert to an insured plan by contracting with a plan provider, or (3) administer the plan itself. If the eligible organization contracts with a new TPA, then it remains subject to the mandate and must provide contraceptive coverage, seek an accommodation, or pay a penalty. Alternatively, the organization could restructure its plan and contract with a plan provider that would assume the risk of providing health insurance (that is, change from a self-insured to an insured plan). In this scenario, the organization would have to
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2713A(b)(2). If it remains as the TPA, then it must provide (or arrange for another
insurer to provide) contraceptive benefits to participants and beneficiaries of the
self-insured plan. Id.; 29 C.F.R. § 2510.3-16(c).11
Significantly, plan providers and TPAs “may not impose any cost-sharing
requirements (such as a copayment, coinsurance, or a deductible), or impose any
premium, fee, or other charge, or any portion thereof, directly or indirectly, on the
eligible organization, the group health plan, or plan participants or beneficiaries.”
26 C.F.R. § 54.9815-2713A(c)(2)(i); 45 C.F.R. § 147.131(c)(2)(ii).12 Plan
providers “must segregate premium revenue collected from the eligible
organization from the monies used to provide payments for contraceptive
comply with the mandate, seek an accommodation, or pay a penalty. Finally, the organization could continue with its self-insured plan without a TPA, meaning the organization would assume responsibility for administering claims. Although the Departments are unaware of the existence of a single self-insured plan without a TPA, they have created a safe harbor that excuses such a plan from complying with the contraceptive mandate so long as it annually notifies HHS that it has no TPA and plan participants and beneficiaries that contraceptive coverage is not provided. The Departments will provide this safe harbor while considering an additional accommodation. 78 Fed. Reg. at 39880-81.
11 Self-insured plans run by houses of worship and certain organizations controlled by or associated with a house of worship, known as “church plans,” are not subject to the provisions of ERISA unless they elect otherwise. See 26 U.S.C. §§ 410(d), 414(e). The government lacks authority to compel the TPA of a church plan not subject to ERISA to provide contraceptive coverage. See 29 U.S.C. § 1003(b)(2). Nonetheless, the TPA for a church plan may voluntarily provide contraceptive services; the government incentivizes these TPAs to provide the coverage by offering larger reimbursements. See 80 Fed. Reg. at 41323 n.22; 45 C.F.R. § 156.50(d).
12 The government reimburses plan providers and TPAs for providing contraception benefits. Plan providers receive a downward adjustment to the user fees they must pay to the federal government to sell plans on the federally-facilitated health exchanges. The process for TPAs can be more complicated. If the TPA is not itself a participating insurer, then it must contract for contraceptive coverage with a participating insurer, and the insurer then passes on the reimbursement to the TPA. See 80 Fed. Reg. at 41328.
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services.” 45 C.F.R. § 147.131(c)(2)(ii). A plan provider or TPA also must notify plan participants and beneficiaries (contemporaneously with the delivery of other plan materials, if possible) “that the eligible organization does not administer or fund contraceptive benefits,” but that the plan provider or TPA instead “provides separate payments for contraceptive services.” 26 C.F.R. § 54.9815-2713A(d); 45 C.F.R. § 147.131(d). B. The Parties and Procedural History
This opinion addresses two cases: one brought by EWTN and one brought by two Catholic Dioceses and a group of related persons and entities. Below, we briefly discuss the plaintiffs and the procedural history of each case in turn.
1. Eternal Word Television Network Plaintiff-appellant EWTN is a non-profit worldwide Catholic media network founded in 1981 by Mother Mary Angelica, a Catholic nun. EWTN, based in Irondale, Alabama, has approximately 350 employees. The network consists of 11 television feeds and two radio stations that reach 230 million homes in 144 countries and territories. Its programming includes daily Mass, Catholic devotions, coverage of Catholic Church events, documentaries, children’s programs, educational series, and other television and radio shows that support EWTN’s mission of “serv[ing] the orthodox belief and teaching of the Church as proclaimed by the Supreme Pontiff and his predecessors.” Compl. at 5, No. 1:13-cv-00521-
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CG-C, Doc. 1. EWTN has a self-insured group health plan to provide health insurance benefits to its employees. Blue Cross Blue Shield of Alabama serves as the TPA for the plan.
EWTN, together with the State of Alabama,13 filed a complaint challenging the contraceptive mandate and accompanying regulations under RFRA, the First Amendment, the Due Process Clause of the Fifth Amendment, and the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. The complaint alleged that “EWTN cannot facilitate access to health care insurance . . . that covers artificial contraception, sterilization, or abortion, or related education and counseling, without violating its deeply held religious beliefs.” Compl. at 7, No. 1:13-cv-00521-CG-C, Doc. 1. To EWTN, this means that its religious beliefs prevent it both from providing contraceptive coverage in its health plan and from using the accommodation. As a result, EWTN alleged, the contraceptive mandate “imposes government pressure and coercion on EWTN to change or violate its religious beliefs” because if it does not provide coverage or use the accommodation, it faces fines for non-compliance with the mandate. Id. at 27.
EWTN and Alabama moved for partial summary judgment on five of the 17 counts in the complaint, including: Count One, alleging a violation of RFRA
13 Alabama was a party throughout the district court proceedings, but the State did not join EWTN in this appeal.
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based on the regulations’ burden on religious exercise; Count Two, alleging a violation of the Free Exercise Clause based on the same burden; Count Three, alleging a violation of the Free Exercise Clause based on intentional discrimination among religious organizations; Count Five, alleging a violation of the Establishment Clause based on the selective imposition of a burden on some religious organizations; and Count Nine, alleging a violation of the Free Speech Clause based on compelled speech. Alabama joined in EWTN’s motion and additionally moved for summary judgment on Count Seventeen, which sought a declaration that the contraceptive mandate does not preempt Alabama law.
The defendants-appellees—the Departments and their Secretaries—filed a motion to dismiss the complaint or, in the alternative, for summary judgment on all of the plaintiffs’ claims. The district court denied EWTN’s and Alabama’s motions for summary judgment and granted the defendants’ motion for summary judgment as to Counts One, Two, Five, and Nine. On a motion by the plaintiffs, the district court entered a final judgment on those four counts pursuant to Federal Rule of Civil Procedure 54(b) and stayed litigation of the remaining claims pending appeal.
EWTN timely appealed. On EWTN’s motion, we issued an injunction pending appeal, preventing the defendants from enforcing the mandate or the
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accommodation against EWTN. Eternal Word Television Network, Inc. v. Sec’y, U.S. Dep’t of Health & Human Servs., 756 F.3d 1339 (11th Cir. 2014).
2. The Diocesan Plaintiffs, CENGI, and Catholic Charities A group of Catholic entities—the Roman Catholic Archdiocese of Atlanta, the Archbishop of Atlanta, Christ the King Catholic School, Catholic Charities of the Archdiocese of Atlanta (“Catholic Charities”), the Roman Catholic Diocese of Savannah, and the Bishop of Savannah—filed a lawsuit against the Departments and their Secretaries. Both the Archdiocese of Atlanta and the Diocese of Savannah (collectively with the Bishop and Archbishop, “the Dioceses”) are associations of Catholic parishes and organizations, including Catholic schools. Catholic Charities is a nonprofit organization that provides social services, including immigration counseling, mental health counseling, marriage counseling, and pregnancy support services. The second amended complaint added as a plaintiff Catholic Education of North Georgia (“CENGI”) and removed Christ the King Catholic School. CENGI is a nonprofit organization that oversees five Catholic schools in the Atlanta area. The Atlanta Archdiocese operates a self-insured health plan, which covers employees of the Archdiocese, Catholic Charities, and CENGI. The Savannah
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Diocese operates two self-insured health plans for its employees. Meritain Health
serves as the TPA for all three plans.14
The second amended complaint alleged that the contraceptive mandate and
accompanying regulations violate RFRA, the First Amendment, the non-delegation
doctrine,15 and the APA. The plaintiffs alleged that the regulations require them
“to provide, pay for, and/or facilitate insurance coverage for abortion-inducing
drugs, sterilization, and contraception, in violation of their religious beliefs.”
Second Am. Compl. at 6, No. 1:12-cv-03489-WSD, Doc. 56. They alleged that the
regulations further burden religious exercise “by driving a wedge between
religious organizations, like the Atlanta Archdiocese, and their equally religious
charitable arms, such as Plaintiffs Catholic Charities and CENGI.” Id. Because
the charitable arms do not qualify as “religious employers,” the Dioceses alleged
14 The parties disagree over whether these health plans qualify as “church plans” for purposes of ERISA. We need not decide whether the plans at issue are church plans because their ERISA status does not impact our conclusion that the accommodation does not substantially burden religious exercise. If the plans are not church plans, then our analysis as to EWTN’s self-insured plan applies, and the accommodation presents no burden on religious exercise. See infra Part III.A.2.b. If the plans are church plans, then the government lacks authority to enforce the contraceptive mandate against the plaintiffs’ TPAs, rendering the plaintiffs’ assertion that their actions trigger such coverage even weaker. See, e.g., Little Sisters of the Poor Home for the Aged v. Burwell, 794 F.3d 1151, 1188 (10th Cir.) (“The lack of enforcement authority makes any burden on plaintiffs with church plans even less substantial than the burden on plaintiffs with self-insured plans that are subject to ERISA.”), cert. granted sub nom., S. Nazarene Univ. v. Burwell, 136 S. Ct. 445, and cert. granted, 136 S. Ct. 446 (2015).
15 The non-delegation doctrine is the constitutional principle that prevents Congress from delegating its legislative authority to another body with “unfettered discretion to make whatever laws” the body sees fit. A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 537-38 (1935).
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they must expel the charities’ employees from their health plans if the Dioceses wish to take advantage of the religious exemption.16
The Departments filed a motion to dismiss the second amended complaint or, alternatively, for summary judgment on all counts. The plaintiffs cross-moved for summary judgment as to seven of their eight counts, which alleged that the mandate and accompanying regulations: burden religious exercise in violation of RFRA (Count One); violate the Free Exercise Clause, based on the same burden (Count Two); compel speech in violation of the Free Speech Clause (Count Three); prohibit speech in violation of the Free Speech Clause (Count Four); favor certain religious groups and entangle the government in religion in violation of the Establishment Clause (Count Five); interfere with internal church governance in violation of both the Free Exercise and Establishment Clauses (Count Six); and involve an impermissible delegation of unchecked legislative authority to the Departments (Count Seven).
The district court granted summary judgment to Catholic Charities and CENGI on their RFRA claims, holding that the contraceptive mandate and accommodation substantially burden the organizations’ religious exercise and are not the least restrictive means to accomplish a compelling governmental interest.
16 We note that there is no dispute that EWTN, CENGI, and Catholic Charities qualify for the accommodation and not for the religious employer exemption.
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The court enjoined the Departments from enforcing the mandate or the accommodation against Catholic Charities and CENGI. In addition, the court granted the plaintiffs’ motion for summary judgment on their claim that the noninterference provision created a content-based speech restriction in violation of the First Amendment.
As to the Dioceses’ RFRA claim, the court granted summary judgment to the Departments. The Dioceses had argued first that they might at some point have to pay more in premiums to help cover their plan providers’ cost of contraceptive coverage, in violation of their religious beliefs, and second that the distinction between religious employers and organizations eligible for the accommodation would force the Dioceses to remove unaffiliated Catholic schools from their insurance plans. Rejecting both arguments, the district court ruled that the first argument was merely speculative (and the outcome on which the Dioceses speculated would, in any event, be prohibited by law) and the second argument failed to assert a legitimate religious exercise. The district court granted the Departments’ summary judgment motion as to all of the plaintiffs’ remaining claims based on the First Amendment, the non-delegation doctrine, and the APA.
Despite the split judgment, only the Departments appealed the district court’s decision. Because revisions to the regulations have rendered the plaintiffs’
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compelled speech claim based on the non-interference provision moot,17 the appeal in this case concerns only the district court’s grant of summary judgment to Catholic Charities and CENGI on their RFRA claim.
II. STANDARD OF REVIEW “This court reviews the district court’s disposition of cross-motions for summary judgment de novo, applying the same legal standards used by the district court, viewing the evidence and all factual inferences therefrom in the light most favorable to the non-movant, and resolving all reasonable doubts about the facts in favor of the non-moving party.” Am. Bankers Ins. Group v. United States, 408 F.3d 1328 (11th Cir. 2005). Summary judgment is proper if the movant can show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Where the material facts are undisputed and all that remains are questions of law, summary judgment may be granted. See Saregama India Ltd. v. Mosley, 635 F.3d 1284, 1290 (11th Cir. 2011).
17 As noted above, in 2014 the Departments removed the regulations’ requirement that organizations “must not, directly or indirectly, seek to influence the third party administrator’s decision to” provide contraceptive coverage to the objecting organization’s health plan participants and beneficiaries. 26 C.F.R. § 54.9815-2713A(b)(1)(iii) (2013); see 79 Fed. Reg. at 51095; supra note 9.
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III. DISCUSSION A. RFRA Claims
1. Legal Background a. RFRA
RFRA provides that the federal government “shall not substantially burden a person’s exercise of religion” unless it demonstrates that the burden “is in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb1(a)-(b). Congress passed RFRA in 1993 in response to the Supreme Court’s decision in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), which held that “a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.” Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993) (characterizing Smith). In Smith, the Supreme Court reasoned that “[t]o make an individual’s obligation to obey [a neutral and generally applicable] law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is ‘compelling[,]’ . . . contradicts both constitutional tradition and common sense.” Smith, 494 U.S. at 885 (internal quotation marks and citation omitted).
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Congress stated that the purpose of RFRA was “to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972).” 42 U.S.C. § 2000bb(b)(1). Congress declared the strict scrutiny standard provided “a workable test for striking sensible balances between religious liberty and competing prior governmental interests.” Id. § 2000bb(a)(5). Indeed, RFRA “provide[s] even broader protection for religious liberty than was available under” Sherbert or Yoder because the government must also show that it used the least restrictive means to achieve its compelling interest. Hobby Lobby, 134 S. Ct. at 2761 n.3.
b. Hobby Lobby In Hobby Lobby, the Supreme Court held that enforcing the contraceptive mandate without an accommodation against closely held for-profit corporations that objected on religious grounds to providing contraceptive coverage violated RFRA. The corporations and their owners challenged the mandate as substantially burdening their religious exercise. Id. at 2764-66. The owners of the corporations sincerely believed that life begins at conception and that it is a sin to facilitate access to contraceptive drugs or devices that could destroy an embryo. Id. It was undisputed that the mandate required the plaintiffs to provide health insurance that covered methods of contraception that could result in the destruction of an embryo. Id. at 2775. The plaintiffs asserted that the mandate left them with only two
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options: (1) provide coverage for contraception in violation of their religious beliefs or (2) pay significant penalties. Given these choices, the Supreme Court held that the mandate “impose[d] a substantial burden.” Id. at 2779.
The government argued there was no substantial burden because the connection between what the mandate required the plaintiffs to do (provide health insurance that covered contraception) and the end that they found morally wrong (the destruction of an embryo) was too attenuated. Id. at 2777. The premise of the government’s attenuation argument was 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 [contraceptive] methods at issue.” Id. In other words, the government asserted that the plaintiffs’ belief—that providing insurance coverage for contraception facilitated the destruction of embryos—was unreasonable. The Supreme Court rejected this argument, which would have required the Court to determine 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.” Id. at 2778. The Supreme Court cautioned that “federal courts have no business addressing” such questions of religion and moral philosophy. Id. Instead, the Supreme Court deferred to the plaintiffs’ religious belief that the coverage “is
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connected to the destruction of embryo in a way that is sufficient to make it
immoral for them to provide the coverage.” Id.
The Court then considered whether the mandate survived strict scrutiny.
The majority assumed that the mandate furthered a compelling governmental
interest18 but held that it was not the least restrictive means of doing so. Id. at
2779-80. The Court pointed to the accommodation, which at the time applied only
to nonprofit organizations with religious objections, as a less restrictive alternative.
18 The majority opinion assumed without deciding that the government has a compelling interest. In separate opinions, five members of the Court appeared to go further, suggesting that a majority of the Court would agree that there is, in fact, a compelling interest.
The four dissenting justices concluded that the government carried its burden in showing that the mandate “furthers compelling interests in public health and women’s well being.” Hobby Lobby, 134 S. Ct. at 2799 (Ginsburg, J., dissenting). Justice Kennedy, who joined the majority, offered a separate concurrence in which he emphasized the importance of the majority’s assumption that there is a compelling interest without explicitly stating that he agreed with that premise: “[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.” Id. at 2786 (Kennedy, J., concurring). He also reiterated the government’s position that the mandate “provid[ed] insurance coverage that is necessary to protect the health of female employees, coverage that is significantly more costly than for a male employee.” Id. at 2785-86.
Justice Ginsburg in her dissent and other courts have treated Justice Kennedy’s concurrence as recognizing that the government has a compelling interest. See id. at 2800 n.23 (Ginsburg, J., dissenting) (writing that Justice Kennedy “recognize[d], without reservation,” the existence of a compelling interest); Univ. of Notre Dame v. Burwell, 786 F.3d 606, 624 (7th Cir. 2015) (Hamilton, J., concurring) (“Justice Kennedy’s concurring opinion made clear that he viewed the governmental interests as compelling.”); Priests for Life v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229, 257 (D.C. Cir. 2014) (explaining why Justice Kennedy’s concurrence was “more affirmative” than the majority opinion in recognizing a compelling interest), cert. granted sub nom., Roman Catholic Archbishop of Wash. v. Burwell, 136 S. Ct.
444 (2015), and cert. granted, 136 S. Ct. 446 (2015). We are inclined to agree that Justice
Kennedy’s concurring opinion can be read as recognizing a compelling interest. Nonetheless, even if Justice Kennedy merely assumed (but did not decide) there is a compelling interest, such that a majority of the Supreme Court has not reached that conclusion, we conclude that there is a compelling interest here. See infra Part III.B.2.c.(i).
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The Court explained that after an organization opts out, the plan provider (for insured plans) or TPA (for self-insured plans) must exclude contraceptive coverage from the group health plan and provide separate payments for contraceptive coverage without imposing cost sharing requirements on the organization, plan, or plan participants or beneficiaries. Id. at 2782. Although the Court declined to answer whether the accommodation complied with RFRA, it lauded the accommodation as “seek[ing] 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.” Id. at 2759. The Court further recognized that “[t]he 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.”19 Id. at 2760.
c. Wheaton College After Hobby Lobby, the Court considered the accommodation itself in the context of an injunction sought under RFRA in Wheaton College. The Court enjoined the government from enforcing the mandate but required the plaintiff to
19 Justice Kennedy praised how the accommodation reconciled the competing priorities of ensuring that “no person may be restricted or demeaned by government in exercising his or her religion” and that the same exercise does not “unduly restrict other persons . . . in protecting their own interests, interests the law deems compelling.” Hobby Lobby, 134 S. Ct. at 2786-87 (Kennedy, J., concurring).
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inform HHS in writing that it had religious objections to providing coverage for contraceptive services. 134 S. Ct. at 2807. The Court explained that the government could “rely[] on this notice . . . to facilitate the provision of full contraceptive coverage.” Id. The practical effect of the Wheaton College decision was twofold: the plaintiff received an accommodation, and HHS could rely on the notification to provide contraceptive coverage to the participants and beneficiaries of the plaintiff’s plan.
d. Other RFRA Challenges to the Accommodation After Hobby Lobby and Wheaton College, federal courts around the country considered RFRA challenges to the accommodation. Applying these two Supreme Court decisions, seven of the eight circuits to review these cases held that the accommodation does not violate RFRA. See Mich. Catholic Conf. & Catholic Family Servs. v. Burwell, 807 F.3d 738 (6th Cir. 2015); Catholic Health Care Sys. v. Burwell, 796 F.3d 207 (2d Cir. 2015); Little Sisters of the Poor Home for the Aged v. Burwell, 794 F.3d 1151 (10th Cir.), cert. granted sub nom., S. Nazarene Univ. v. Burwell, 136 S. Ct. 445, and cert. granted, 136 S. Ct. 446 (2015); E. Tex. Baptist Univ. v. Burwell, 793 F.3d 449 (5th Cir.), cert. granted, 136 S. Ct. 444 (2015); Univ. of Notre Dame v. Burwell (“Notre Dame II”), 786 F.3d 606 (7th Cir.
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2015);20 Geneva Coll. v. Sec’y U.S. Dep’t of Health & Human Servs., 778 F.3d 422
(3d Cir.), cert. granted sub nom., Zubik v. Burwell, 136 S. Ct. 444, and cert.
granted, 136 S. Ct. 445 (2015); Priests for Life v. U.S. Dep’t of Health & Human
Servs. (“Priests for Life I”), 772 F.3d 229 (D.C. Cir. 2014), reh’g en banc denied,
(“Priests for Life II”), 808 F.3d 1 (D.C. Cir. 2015), cert. granted sub nom., Roman
Catholic Archbishop of Wash. v. Burwell, 136 S. Ct. 444 (2015), and cert. granted,
136 S. Ct. 446 (2015). These circuits concluded that the accommodation does not substantially burden religious exercise.21 The Eighth Circuit disagreed, holding
that the accommodation substantially burdens religious exercise and cannot survive
strict scrutiny. Sharpe Holdings, Inc. v. U.S. Dep’t of Health & Human Servs.,
801 F.3d 927 (8th Cir. 2015), petition for cert. filed, 84 U.S.L.W. 3350 (U.S. Dec.
15, 2015) (No. 15-775). Recently, the Supreme Court granted certiorari in several
of these cases.
The seven circuits that upheld the accommodation recognized that the RFRA
claim in Hobby Lobby was fundamentally different from challenges to the
20 Before Hobby Lobby was decided, the Seventh Circuit affirmed the denial of a preliminary injunction to enjoin the enforcement of the mandate and accommodation in University of Notre Dame v. Sebelius (“Notre Dame I”), 743 F.3d 547 (7th Cir. 2014). Subsequently, the Supreme Court granted certiorari, vacated the Seventh Circuit’s judgment in Notre Dame I, and remanded for consideration in light of Hobby Lobby. Univ. of Notre Dame v. Burwell, 135 S. Ct. 1528 (2015). After considering Hobby Lobby, the Seventh Circuit issued Notre Dame II again affirming the denial of a preliminary injunction.
21 Two circuits have held, in the alternative, that even assuming the accommodation imposes a substantial burden, it survives strict scrutiny under RFRA. See Notre Dame II, 786 F.3d at 616-17; Priests for Life I, 772 F.3d at 256-57.
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accommodation itself. In Hobby Lobby, the plaintiffs challenged the mandate— that is, the requirement that they provide contraceptive coverage—when their only options were to provide the coverage or pay significant penalties. But in the accommodation cases, the plaintiffs have challenged the regulatory scheme that allows them to opt out of the mandate without penalty. Put another way, the plaintiffs in the accommodation cases “do not challenge the general obligation under the ACA to provide contraceptive coverage. They instead challenge the process they must follow to get out of complying with that obligation.” Little Sisters of the Poor, 794 F.3d at 1160. Because they assert that “the exemption process itself imposes a substantial burden on their religious faiths,” their challenges are somewhat “paradoxical and virtually unprecedented.” Priests for Life I, 772 F.3d at 246 (internal quotation marks omitted).
The circuits upholding the accommodation recognized that the question of whether there is a substantial burden involves an objective inquiry. After interpreting the ACA and its regulations, they held that the act of opting out does not trigger contraceptive coverage. See, e.g., Notre Dame II, 786 F.3d at 614 (explaining that “[i]t is federal law, rather than the religious organization’s signing and mailing the form, that requires . . . third-party administrators of self-insured health plans[] to cover contraceptive services”). Although the eligible organizations asserted that the act of opting out makes them complicit in providing
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coverage, these courts explained that this objection could not constitute a substantial burden because individuals “have no RFRA right to be free from the unease, or even anguish, of knowing that third parties are legally privileged or obligated to act in ways their religion abhors.” Priests for Life I, 772 F.3d at 246.
In Sharpe Holdings, the Eighth Circuit reached the opposite conclusion, holding that the accommodation substantially burdened religious exercise, and enjoined the government from enforcing the accommodation. Relying on Hobby Lobby, the Eighth Circuit held that it was bound to accept the plaintiffs’ “assertion that self-certification under the accommodation process—using either Form 700 or HHS Notice—would violate their sincerely held religious beliefs.”22 Sharpe Holdings, 801 F.3d at 941. Because the plaintiffs faced a substantial penalty if they failed to seek an accommodation or provide contraceptive coverage, the Eighth Circuit concluded there was a substantial burden. Id. at 942.
The Eighth Circuit then applied strict scrutiny. The court assumed that the government had a compelling interest but held that the government had failed to carry its burden to show that it lacked other means to achieve its interest without imposing a substantial burden on religion. Id. at 943. The Eighth Circuit
22 Although the Eighth Circuit deferred to the plaintiffs’ understanding of how the accommodation functioned, it agreed that the act of opting out triggered coverage. See Sharpe Holdings, 801 F.3d at 942 (TPAs have no “wholly independent obligation” to provide contraceptive coverage).
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concluded that less restrictive alternatives included the government: (1) requiring less information from eligible organizations seeking an accommodation; (2) assuming the cost of providing contraceptives through subsidies, reimbursements, tax credits, or tax deductions to employees; (3) paying for distribution of contraceptives at community health centers, public clinics, and hospitals; or (4) making contraceptive coverage available through the healthcare exchanges. Id. at 944-45. Given these alternatives, the Eighth Circuit concluded that the accommodation failed to survive strict scrutiny.
2. RFRA Analysis With this legal landscape in mind, we now consider the plaintiffs’ RFRA challenge. We hold that their challenge fails because (1) the accommodation does not substantially burden their religious exercise, and (2) in the alternative, even if there is a substantial burden, the accommodation survives strict scrutiny.
a. The Plaintiffs Allege a Sincere Religious Belief. A threshold question we must ask is whether the plaintiffs’ religious beliefs on which their RFRA claims are based are sincere. See Hobby Lobby, 134 S. Ct. at 2774 n.28 (“To qualify for RFRA’s protection, an asserted belief must be ‘sincere’. . . .”). It is well established that we defer to a plaintiff’s statement of its own belief, so long as the plaintiff actually holds that belief. See id. at 2779 (“[I]t is not for [courts] to say that [the plaintiffs’] religious beliefs are mistaken or
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insubstantial.”); Davila v. Gladden, 777 F.3d 1198, 1204 (11th Cir.) (“[W]e look only to see whether the claimant . . . actually holds the beliefs he claims to hold.” (internal quotation marks omitted)), cert. denied sub nom., Davila v. Hayes, 136 S. Ct. 78 (2015).
Each plaintiff states that its religious beliefs prevent it from paying for, providing, or facilitating the distribution of contraceptives. Each plaintiff also asserts that it cannot be complicit in the provision of contraception. The government does not contest the sincerity of these religious beliefs, nor is there any indication whatsoever in the record that the stated beliefs are insincere. We thus conclude that the plaintiffs’ religious beliefs at issue are sincere.
b. The Accommodation Does Not Substantially Burden the Plaintiffs’ Religious Exercise.
We now consider whether, accepting the plaintiffs’ sincere religious beliefs, the accommodation substantially burdens their religious exercise. The plaintiffs assert that the act of notifying HHS or their TPAs of their religious objection will either trigger contraceptive coverage or make them complicit in a system that provides such coverage. Due to the significance they attach to opting out, the plaintiffs contend that the accommodation itself imposes a substantial burden because it puts them to the choice of violating their sincerely held religious beliefs or paying a substantial penalty. We accept the plaintiffs’ sincere belief that triggering coverage or being complicit in coverage violates their religious beliefs
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and that the accommodation puts them to a choice between honoring their religious beliefs and facing significant penalties. We nonetheless conclude that the accommodation imposes no substantial burden.
(i) The Substantial Burden Analysis Involves an Objective Inquiry.
“[A] ‘substantial burden’ must place more than an inconvenience on religious exercise.” Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004).23 A law is substantially burdensome when it places “significant pressure” on an adherent to act contrary to her religious beliefs, meaning that it “directly coerces the religious adherent to conform . . . her behavior.” Id. Thus, the government imposes a substantial burden when it places “pressure that tends to force adherents to forego religious precepts.” Id.
This inquiry involves both subjective and objective dimensions. Hobby Lobby made clear that there is a subjective aspect to this inquiry: courts must accept a religious adherent’s assertion that his religious beliefs require him to take or abstain from taking a specified action. See 134 S. Ct. at 2779. But the
23 Midrash concerned the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), which Congress enacted after the Supreme Court struck down RFRA as applied to the states in City of Boerne v. Flores, 521 U.S. 507 (1997). RLUIPA imposes the same requirement as RFRA—that the government refrain from substantially burdening religious exercise unless the burden is the least restrictive means of achieving a compelling government interest—on programs and activities that receive federal funding. 42 U.S.C. § 2000cc-1. We apply the same substantial burden analysis under both RLUIPA and RFRA. See generally Davila, 777 F.3d at 1204; Midrash, 366 F.3d at 1237.
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substantial burden analysis does not end there. We agree with our seven sister circuits that the question of substantial burden also presents “a question of law for courts to decide.” Priests for Life I, 772 F.3d at 247.
The objective inquiry requires courts to consider whether the government actually “puts” the religious adherent to the “choice” of incurring a “serious” penalty or “engag[ing] in conduct that seriously violates [his] religious beliefs.” Holt v. Hobbs, 135 S. Ct. 853, 862 (2015) (second alteration in original and internal quotation marks omitted). Put another way, courts must determine what the challenged law actually requires of the plaintiff. For example, in Holt, a Muslim inmate asserted that prison grooming policy substantially burdened his religious exercise because it prohibited him from growing a beard, which his religion required. The Supreme Court explained that because the “grooming policy requires petitioner to shave his beard,” the policy “put[]” him to the choice of violating his religious beliefs or facing serious disciplinary action. Id. In Holt, as in many RFRA cases, this inquiry was straightforward because there was no dispute about what the government’s policy objectively required of the religious adherent. But when there is a dispute about what a law or governmental policy objectively requires, it is for the courts to construe the law or policy.
The plaintiffs here contend that under Hobby Lobby no such objective inquiry is required. In their view, a religious adherent’s mere assertion that she is
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being compelled to violate her sincerely held religious belief means that the
government has put her to such a choice, regardless of what the law objectively requires.24 We disagree. In Hobby Lobby, the plaintiffs challenged the
contraceptive mandate. It was undisputed that the mandate gave the plaintiffs just
two options: provide contraceptive coverage or pay a substantial penalty.
Although the Supreme Court engaged in no objective analysis about what the
mandate required, such analysis was unnecessary because the parties agreed that
the government, through the mandate, put the plaintiffs to the choice of providing
contraceptive coverage or paying a hefty fine. See Hobby Lobby, 134 S. Ct. at
2777-79; see also Priests for Life II, 808 F.3d at 2 (Pillard, J.) (concurring in denial
of reh’g en banc) (“The parties in Hobby Lobby did not dispute what the law
required, nor its practical effects . . . .”).
Here, the parties agree that the plaintiffs have at least three options: provide
contraceptive coverage, pay a penalty, or use the accommodation to opt out of providing contraceptive coverage.25 But they disagree about whether opting out
24 The Eighth Circuit similarly interpreted Hobby Lobby as requiring courts to “accept [the plaintiffs’] assertion that self-certification under the accommodation process . . . would violate their sincerely held religious beliefs.” Sharpe Holdings, 801 F.3d at 941.
25 We agree with the dissent that the plaintiffs have a fourth option, as well: to terminate their TPAs and take over the costs and responsibilities of running their self-insured plans. See Dissent at 109-10. But, the Departments contend there is no evidence of the existence of any self-insured plan without a TPA. See 78 Fed. Reg. at 39880 (“[T]he Departments continue to believe that there are no self-insured group health plans in this circumstance.”). If an eligible organization elected to become the first self-insured plan without a TPA, it would enjoy at least a
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puts the plaintiffs to the choice of violating their religious beliefs or paying a substantial fine. The plaintiffs contend that because an eligible organization’s TPA only becomes obligated to provide coverage when the organization opts out, by opting out they will be triggering coverage. The government argues to the contrary that plan participants and beneficiaries are entitled to contraceptive coverage under the ACA regardless of any opt out. We conclude that it is for the courts to determine objectively what the regulations require and whether the government has, in fact, put plaintiffs to the choice of violating their religious beliefs by seeking the accommodation or incurring a substantial penalty.
We reject a framework that takes away from courts the responsibility to decide what action the government requires and leaves that answer entirely to the religious adherent. Such a framework improperly substitutes religious belief for legal analysis regarding the operation of federal law. Indeed, the plaintiffs have identified nothing in RFRA or case law that allows a religious adherent to dictate to the courts what the law requires. The plain language of RFRA simply does not support reducing the role of federal courts to “rubber stamps” that automatically
temporary safe harbor so long as the plan notifies (1) HHS that it has no TPA and (2) plan participants and beneficiaries that the plan provides no benefits for contraceptive services. Id.
We assume for purposes of this appeal that if the government forced an eligible organization to have a self-insured plan without a TPA, it would be imposing a substantial burden. Nonetheless, we conclude there is no substantial burden because eligible organizations can instead select the accommodation.
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recognize a substantial burden whenever a religious adherent asserts there is one. Catholic Health Care Sys., 796 F.3d at 218. If Congress had intended strict scrutiny to be triggered in all circumstances by a religious adherent’s claim that there is a burden, it would have said so. Instead, it required that the federal government “substantially burden” the adherent’s religious exercise.
Our dissenting colleague concedes that the question of substantial burden involves an objective inquiry but asserts that the inquiry should be limited to whether the government has imposed a substantial penalty. See Dissent at 113-15. This analysis would require courts to defer to a religious adherent’s sincere belief that the government is forcing her to choose between her religious belief and paying a substantial fine, even when the religious adherent is objectively wrong about how the law operates and what action the government requires her to take. The dissent’s view is flawed because any burden (even an objectively insubstantial one) becomes a substantial burden if the penalty is heavy enough.
We acknowledge that in Hobby Lobby the Supreme Court cautioned courts against dictating to religious adherents “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.” 134 S. Ct. at 2778. In some cases, a court’s objective analysis interpreting a statute or regulation may contradict a religious adherent’s sincerely held belief about what
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that law requires. But such questions about what a law means are not the type of “difficult and important question of religion and moral philosophy” for which courts must defer to religious adherents. Id.; see Notre Dame II, 786 F.3d at 623 (Hamilton, J., concurring) (explaining that the interpretation of the regulations that give rise to the accommodation “is an issue not of moral philosophy but of federal law”).
Deciding how the law functions is not the only objective part of the substantial burden inquiry. The Supreme Court’s free exercise cases (prior to Smith) distinguished between substantial burdens on religious exercise, which are protected, and de minimis burdens, which are not. For example, a religious adherent may not “require the Government to conduct its own internal affairs in ways that comport” with the person’s religious beliefs, even if the government action interferes with that person’s religious exercise. Bowen v. Roy, 476 U.S. 693, 699-700 (1986); see Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 451 (1988) (recognizing that government’s decision to log and build roads would “have severe adverse effects” on practice of Native American religion but concluding this burden was not “heavy enough” to trigger strict scrutiny under the Free Exercise Clause).
In Bowen, Native American parents challenged federal statutes requiring them to provide their daughter’s social security number to state welfare agencies as
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a condition of seeking benefits on the ground that it impinged upon their free exercise of religion. They sought an accommodation to keep the government from using her social security number in administering benefits, which they believed would rob their daughter of her spirit. 476 U.S. at 695-96.
Even recognizing that the parents had a sincere belief that by using her social security number the government would be stealing their daughter’s spirit, the Supreme Court rejected their claim, holding that the government’s “use of a Social Security number . . . does not itself in any degree impair [the parents’] freedom to believe, express, and exerc[ise their] religion.’” Id. at 700 (internal quotation marks omitted). The Court rejected the parents’ attempt to use the Free Exercise Clause to “demand that the Government join in their chosen religious practices.” Id. at 699-700. The Court explained that “[t]he Free Exercise Clause affords an individual protection from certain forms of governmental compulsion,” yet does not extend so far to “afford an individual a right to dictate the conduct of the Government’s internal procedures.” Id. at 700. The Court acknowledged that the parents’ “religious views may not accept” the line that the Court drew “between individual and governmental conduct,” but it drew a line nonetheless.
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Id. at 701 n.6. Likewise, under RFRA courts must determine whether the burden
on a religious adherent is, in fact, substantial.26
As we alluded to above, the plain language of RFRA supports our
conclusion that there is a distinction between a burden and a substantial burden.
RFRA requires strict scrutiny only when the government “substantially burden[s] a
person’s exercise of religion.” 42 U.S.C. § 2000bb-1(a). Congress chose to
modify “burden” with “substantial[],”27 and we must of course interpret RFRA to
give full effect to its every word. See TRW Inc. v. Andrews, 534 U.S. 19, 31
(2001) (recognizing that statutes should be construed whenever possible so that
“no clause, sentence, or word shall be superfluous, void, or insignificant” (internal
quotation marks omitted)).
26 We reiterate that in Hobby Lobby the Supreme Court did not grapple with this aspect of the substantial burden analysis. But it was plain that the action required of the plaintiffs in that case—paying to provide health insurance that included contraceptive coverage—imposed a substantial burden. Accordingly, the Court had no occasion to address the more difficult question presented here, where the plaintiffs’ claims of substantial burden rest on their assertion that seeking an accommodation results in another entity (the TPA) providing contraceptive coverage and thus makes them complicit in a system that achieves an end to which they have a religious objection. In other words, Hobby Lobby did not pose the issue whether courts must defer to a religious adherent’s assertion that seeking an accommodation (opting out) itself imposes a substantial burden.
27 Congress used “substantial burden” instead of “burden” in order “to clarify [that] the compelling interest required by the Religious Freedom [Restoration] Act applies only where there is a substantial burden placed on the individual free exercise of religion.” 139 Cong. Rec. S14352 (daily ed. Oct. 26, 1993) (statement of Sen. Hatch) (emphasis added). Limiting RFRA’s application to substantial burdens was intended to ensure that the government was not required “to justify every action that has some effect on religious exercise.” Id.
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We recognize that the distinction between burden and substantial burden is not implicated in every RFRA case. Nonetheless, there are cases brought under RFRA in which the purported burden is too slight to trigger strict scrutiny. For example, in Kaemmerling v. Lappin, an inmate challenged under RFRA the Bureau of Prison’s collection and analysis of his DNA. 553 F.3d 669, 673-74 (D.C. Cir. 2008). He claimed that the government’s sampling, collection, and analysis of his DNA violated his sincerely held religious beliefs about the proper use of DNA. The D.C. Circuit concluded there was no substantial burden. Importantly, the inmate had no religious objection to the collection of his bodily material; he challenged only how the government would subsequently use that specimen to extract his DNA information. Id. at 678-79. There was no question that the Bureau of Prisons required the inmate to submit a bodily specimen that would be used for an end to which he had a strong religious objection (that is, the collection and analysis of his DNA). But the D.C. Circuit held there was no substantial burden because the inmate “suggest[ed] no way in which these government acts pressure[d] him to modify his own behavior in any way that would violate his beliefs.” Id. at 679. Kaemmerling reinforces that a religious adherent cannot use RFRA to stop the government or third parties from taking subsequent actions to which he objects when the acts required of him impose a de minimis burden.28
28 Our dissenting colleague worries that our framework creates a “Bizarro World” in 44

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(ii) No Substantial Burden Exists.
To determine whether the accommodation objectively puts plaintiffs to the
choice of violating their religious beliefs or paying a significant fine, we must
understand how the accommodation functions and what it requires of these
plaintiffs. The only act that the regulations require the plaintiffs to take is to seek
the accommodation—that is, filling out and sending Form 700 to their TPAs or
writing a letter to HHS letting it know of their objections. The plaintiffs do not
contend that notifying HHS or their TPAs itself constitutes a substantial burden
because of the time or effort involved. Rather, their objection is based on the
significance they attribute to this act. They contend that the act of opting out
triggers contraceptive coverage for plan participants and beneficiaries or makes
them complicit in a system that provides contraceptive coverage. We accept that
the plaintiffs truly believe that triggering contraceptive coverage or being complicit
in a system providing contraceptive coverage violates their religious beliefs. But
which courts determine whether the burden imposed by a law or regulation violates the adherent’s beliefs. Dissent at 117-18. The dissent overstates our position. We are not saying that courts may determine that when a prison requires a Muslim inmate to shave his beard or the government forces a Seventh-Day Adventist to work on the Sabbath, the religious adherent’s claim that the government is coercing him to forego his religious precepts is wrong. But when a dispute exists about whether the challenged governmental policy actually requires an inmate to shave his beard or a person to work on Saturday, it is for the courts to determine what the law requires. See, e.g., Sherbert, 374 U.S. at 403-04 (Supreme Court performed its own analysis to determine whether challenged policy compelled Seventh-Day Adventist to work on Saturdays). Likewise, when a religious adherent challenges an accommodation scheme as imposing a substantial burden on the religious adherent based on subsequent actions taken by the government or third parties, it is for the courts to determine whether the burden is substantial.
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our objective inquiry leads us to conclude that the government has not put plaintiffs to the choice of violating their religious beliefs or facing a significant penalty. We hold there is no substantial burden.
Here’s why: the ACA and HRSA guidelines are what entitle plan participants and beneficiaries to contraceptive coverage. The ACA provides that the plaintiffs’ self-insured plans “shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for . . . with respect to women, such additional preventative care and screenings . . . as provided for in” the HRSA guidelines. 42 U.S.C. § 300gg-13(a)(4). The HRSA Guidelines, in turn, “require coverage, without cost sharing, for ‘[a]ll . . . [FDA] approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.’” 77 Fed. Reg. at 8725 (alterations in original) (quoting HRSA guidelines).
The plaintiffs and the dissent take a different view of the statutory and regulatory scheme, contending that an eligible organization’s act of opting out triggers the TPA’s designation as plan administrator and, without it, plan participants or beneficiaries would not receive contraceptive coverage.29 Indeed,
29 Because the plaintiffs here have only self-insured plans, we consider only the accommodation procedures that apply to self-insured health plans.
For an eligible organization with a plan insured by a third party, the accommodation imposes no new coverage obligation. The eligible organization’s act of opting out simply makes
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the dissent asserts that opting out requires an eligible organization’s “affirmative participation” because the act of opting out is the “linchpin on which the contraceptive mandate rests.” Dissent at 125. We disagree.
The ACA and the HRSA guidelines—not the opt out—are, to borrow the dissent’s term, the “linchpins” of the contraceptive mandate because they entitle women who are plan participants and beneficiaries covered by group health insurance plans to contraceptive coverage without cost sharing. In other words, women are entitled to contraceptive coverage regardless of their employers’ action (or lack of action) with respect to seeking an accommodation. Because a woman’s entitlement to contraceptive benefits does not turn on whether her eligible organization employer chooses to comply with the law (by providing contraceptive coverage or seeking an accommodation) or pay a substantial penalty (in the form of a tax) for noncompliance, we cannot say that the act of opting out imposes a substantial burden.30
the coverage the plan provider’s “sole responsibility rather than one shared with the group health plan itself.” Little Sisters of the Poor, 794 F.3d at 1181.
30 The dissent complains that our reading renders the act of opting out “meaningless.” Dissent at 128 (internal quotation marks omitted). The dissent misses our point. Although plan participants and beneficiaries are entitled to contraceptive coverage under federal law regardless of any opt out, notification of the opt out allows the government to identify the plan participants and beneficiaries who will not receive contraceptive coverage from a self-insured eligible organization because of that organization’s religious objection to the mandate. In other words, the act of opting out aids the government in identifying these women and making sure that they receive the contraceptive coverage to which they are legally entitled. Thus, the act of opting out
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We do not mean to imply that the act of opting out plays no causal role in the ultimate provision of contraceptive coverage. We acknowledge that an eligible organization’s act of notifying HHS or its TPA of its objection results in the TPA’s designation as the plan administrator and gives rise to the TPA’s obligation to provide contraceptive coverage.31 See 29 C.F.R. § 2510.3-16(b). But we view an eligible organization’s act of opting out as, at most, an incidental cause of plan participants and beneficiaries receiving contraceptive coverage because these women are entitled to contraceptive coverage under the ACA and HRSA guidelines regardless of whether the eligible organization opts out. Accordingly, even if the act of opting out in some way leads to women receiving the contraceptive coverage to which they were entitled under federal law, the plaintiffs have failed to establish that the act of opting out substantially burdens their religious exercise. Importantly, the government does not force an eligible organization to provide contraceptive coverage, pay costs related to contraceptive coverage, notify plan participants and beneficiaries of the existence of such coverage, or even include the availability of such coverage from a separate source in information the plan provides to plan participants and beneficiaries. Instead, all
has significance in the regulatory scheme, but not because it creates a woman’s entitlement to contraceptive coverage.
31 Indeed, the government has admitted that an eligible organization’s opt out results in a TPA’s designation as plan administrator and the TPA providing plan participants and beneficiaries contraceptive benefits.
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of these responsibilities fall upon the TPA. Rather, the only action required of the eligible organization is opting out: literally, the organization’s notification of its objection. Such an opt out requirement is “typical of religious objection accommodations that shift responsibility to non-objecting entities only after an objector declines to perform a task on religious grounds.” Little Sisters of the Poor, 794 F.3d at 1183.
The plaintiffs’ challenge is in substance indistinguishable from an objection to the government’s requiring another entity to provide coverage in their stead. See Catholic Health Care Sys., 796 F.3d at 224 (characterizing an identical challenge as seeking a “blanket religious veto over the government’s interactions with others”). Put differently, the plaintiffs’ opposition to opting out is an objection to their inability to keep the TPA with which they have contracted to provide services in connection with healthcare coverage from complying with the relevant regulations. The plaintiffs point to a but-for causal relationship between their opting out and the conduct that they find religiously objectionable. But, as the Supreme Court has explained, a religious adherent cannot claim a substantial burden based on the subsequent conduct of another party.32 See Bowen, 476 U.S.
32 The plaintiffs argue that under the accommodation they are facilitating access to contraceptives because their ongoing contractual relationship with their TPA leads the TPA to continue to provide contraceptive coverage to plan participants and beneficiaries. It is true that a TPA remains as plan administrator for purposes of contraceptive coverage only so long as the organization serves as the plan’s TPA. Nonetheless, the plaintiffs cannot show a substantial
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at 699-700 (“Just as the government may not insist that appellees engage in any set form of religious observance, so appellees may not demand that the Government join in their chosen religious practices by refraining from using a number to identify their daughter.”).33
We recognize that the plaintiffs sincerely abhor and object to the subsequent acts taken by the government and their TPA, which ultimately result in the TPA providing contraceptive coverage to their plan participants and beneficiaries. We acknowledge that they “may not accept [the] distinction” that we draw here between their conduct and the downstream, separate conduct of HHS and the TPAs to provide coverage. Id. at 701 n.6. But we simply cannot say that RFRA affords the plaintiffs the right to prevent women from obtaining contraceptive coverage to which federal law entitles them based on the de minimis burden that the plaintiffs face in notifying the government that they have a religious objection.
As the Seventh Circuit first articulated, an analogy to a conscientious objector to the military draft illustrates why the accommodation does not impose a
burden because, as explained above, their challenge is an objection to the TPA’s subsequent conduct.
33 The dissent dismisses Bowen as distinguishable because the plaintiffs here object only to their own participation in the accommodation, not to any acts taken by the government. See Dissent at 126-27 n.32. We are not persuaded. The dissent’s position ignores that the plaintiffs object to opting out because it requires them to play a causal role (albeit, a small one) in a system in which the government requires contraceptive coverage. Put another way, their religious objection is, at its core, an objection to the government requiring the TPAs to provide coverage upon their opting out.
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substantial burden. See Notre Dame I, 743 F.3d at 556. A religious conscientious objector to the military draft may opt of military service based on his belief that war is immoral. The objector sincerely believes that his act of opting out triggers the drafting of another person in his place, and thus renders him complicit in the very thing to which he objects. But we would reject the assertion that the government’s subsequent act of drafting another person in his place—even though the drafting was in some sense caused by the objector’s act of opting out— transforms the act of lodging a conscientious objection into a substantial burden. See id. Likewise, we reject the plaintiffs’ assertion that opting out imposes a substantial burden because the government requires a third party to provide contraceptive coverage after an eligible organization opts out.
Accordingly, we conclude that through the accommodation the government has imposed no substantial burden on the plaintiffs. We thus hold that the accommodation does not violate RFRA.
c. The Accommodation Survives Strict Scrutiny. Even assuming that the accommodation imposes a substantial burden on plaintiffs’ religious exercise, RFRA allows the government to impose such a burden when it demonstrates that the burden “is in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(b). Because the
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government has carried its burden of showing that the accommodation is the least restrictive means of furthering its compelling interests, we hold in the alternative that the accommodation survives strict scrutiny under RFRA.
(i) Compelling Interests Justify the Accommodation. In applying RFRA’s strict scrutiny test, we must first determine whether the accommodation is “in furtherance of a compelling governmental interest.” Id. Because the mandate and accommodation require the provision of cost-free contraceptive coverage with little to no administrative burden on women, these regulations further compelling government interests in avoiding the adverse public health consequences of unintended pregnancies and in assuring women the equal benefit of preventative care by requiring coverage for their distinctive health needs.34 See Priests for Life I, 772 F.3d at 258-59.
34 As we explained above, the majority in Hobby Lobby assumed without deciding that there was a compelling governmental interest. There is, however, an argument that five justices concluded there was a compelling interest. See supra note 18. But even if Justice Kennedy’s concurring opinion in Hobby Lobby did not recognize a compelling governmental interest, we would hold that the compelling interest test is satisfied here.
We acknowledge that the majority opinion in Hobby Lobby criticized the government’s purported interests in “promoting public health and gender equality” as “broadly framed.” 134 S. Ct. at 2779 (internal quotation marks omitted). But we agree with the D.C. Circuit that the government has now provided a more focused analysis “by explaining how those larger interests inform and are specifically implicated in its decision to support women’s unhindered access to contraceptive coverage.” Priests for Life I, 772 F.3d at 259.
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(a) The Government’s Interests in Reducing the Rate of Unintended Pregnancies Are Compelling.
We begin our analysis with the facts: unintended or poorly spaced pregnancies have a host of negative impacts on women and children. See supra Part I.A. Women who experience unintended pregnancies are often unaware of their condition in the early stages of their pregnancy, which leads them to delay prenatal care and cessation of behaviors such as smoking or alcohol consumption. 78 Fed. Reg. at 39872. Babies born as a result of unintended pregnancies are at a greater risk of premature birth and low birth weight. Id. Short interpregnancy intervals also result in a greater risk of prematurity and low birth weight. Id. Contraceptive use can alleviate these public health problems.35 “[G]reater use of contraception within the population produces lower unintended pregnancy and abortion rates nationally.” IOM Report at 105.
During debate over the ACA, Congress was informed that “[i]n America today, too many women are delaying or skipping preventive care because of the costs of copays and limited access.” 155 Cong. Rec. S12027 (Dec. 1, 2009) (statement of Sen. Gillibrand). The IOM Report also found that “cost-sharing
35 Many contraceptives also carry significant positive health side effects. “[T]he noncontraceptive benefits of hormonal contraception include treatment of menstrual disorders, acne or hirsutism, and pelvic pain. Long-term use of oral contraceptives has been shown to reduce a woman’s risk of endometrial cancer, as well as protect against pelvic inflammatory disease and some benign breast diseases.” IOM Report at 107 (internal citations omitted).
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requirements, such as deductibles and copayments, can pose barriers to care and result in reduced use of preventive and primary care services, particularly for lowincome populations.” IOM Report at 109. The Women’s Health Amendment, which added to the ACA the requirement that group and individual health plans provide women with coverage for preventative care and screenings, aimed to increase women’s use of preventive care by removing administrative and financial barriers. See 155 Cong. Rec. S12027 (statement of Sen. Shaheen) (“Too often, women forgo their health care needs because they are not affordable. We know cost plays a greater role in preventing women from accessing health care than it does men. In 2007, more than half of all women reported problems accessing needed health care because of costs.”); see also Priests for Life I, 772 F.3d at 260 (explaining that Congress and the Executive branch determined with the ACA and its regulations that “serving the government’s compelling public health interests depends on overcoming the human behavioral tendencies of denial and delay documented in the legislative and regulatory record”).
Moreover, the Women’s Health Amendment, which added the contraceptive mandate to the ACA’s minimum coverage requirements, specifically addressed the need to provide preventive care to women to rectify past gender discrimination in health insurance. As the Departments noted, “the statute acknowledges that both existing health coverage and existing preventive services recommendations often
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did not adequately serve the unique health needs of women. This disparity placed women in the workforce at a disadvantage compared to their male coworkers.”36 78 Fed. Reg. at 39873; see also 155 Cong. Rec. S12027 (statement of Sen. Gillibrand) (“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.”). Indeed, before the ACA, “women of childbearing age spent 68 percent more on out-of-pocket health care costs than men.” 78 Fed. Reg. at 39887. The Departments explained that this “disproportionate” financial burden “prevented women from achieving health outcomes on an equal basis with men.” Id. The Departments intended the contraceptive coverage requirement to “help[] to equalize the provision of preventative health care services to women and, as a result, help[] women contribute to society to the same degree as men.” Id. As the Departments explained, “[r]esearch shows that access to contraception improves the social and economic status of women.” Id. at 39873; see generally Claudia Goldin & Lawrence F. Katz, The Power of the Pill: Oral Contraceptives & Women’s Career & Marriage Decisions, 110 J. of Pol. Econ. 731 (2002).
36 See also 155 Cong. Rec. S11987 (statement of Sen. Mikulski) (“Women are often faced with the punitive practices of insurance companies. No. 1 is gender discrimination. Women often pay more and get less. For many insurance companies, simply being a woman is a preexisting condition. . . . We pay more because of our gender, anywhere from 2 percent to over 100 percent.”).
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Based on this evidence, we conclude that the government’s interests in the public health of women and children, as well as in assuring women equal preventative care, are compelling.
(b) The Mandate and Accommodation Further These Compelling Interests.
The mandate and accommodation achieve the government’s goals by making contraceptives affordable and otherwise accessible to women. As explained above, federal law generally guarantees women contraceptive coverage without cost sharing. See 42 U.S.C. § 300gg-13(a)(4); 77 Fed. Reg. at 8725 (discussing HRSA guidelines). Importantly, under the mandate and accommodation, women covered by group health insurance plans generally are required to take no additional action to obtain this contraceptive coverage. This is because the coverage is delivered “through the existing employer-based system of health coverage.” 78 Fed. Reg. at 39888. Thus, under the mandate, women need not complete extra paperwork or sign up for an additional program because the contraceptive coverage is delivered with the health insurance they already have through their employers.
This is true even when an employer opts out of providing contraceptive coverage by seeking an accommodation. Although objecting employers are not obligated to provide or pay for contraceptives, the women covered by their plans seamlessly receive contraceptive coverage from the plans’ TPAs. This system was
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carefully designed to make contraceptive coverage accessible by not requiring women to research plans that offer contraceptive coverage, purchase separate contraceptive coverage, or even sign up with a different entity or program. See id. As the Supreme Court acknowledged in Hobby Lobby, the Departments designed the accommodation so that it has “precisely zero” impact on female plan participants and beneficiaries. 134 S. Ct. at 2760; see also id. at 2759 (explaining the accommodation “ensur[es] that the employees of [eligible organizations] have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage”).37
Providing women with such seamless coverage should result in a lower unintended pregnancy rate. Medical evidence reflects a causal relationship between the accessibility of contraceptives and the unintended pregnancy rate: “progress in reducing the rate of unintended pregnancy would be possible by making contraceptives more available, accessible, and acceptable.” IOM Report at 104 (internal quotation marks omitted); see also id. at 109 (“[C]ost-sharing requirements, such as deductibles and copayments, can pose barriers to care and result in reduced use of preventative and primary care services, particularly for
37 We acknowledge that the Supreme Court in Hobby Lobby expressly declined to decide whether the accommodation violated RFRA. Nonetheless, our analysis is consistent with the Court’s dicta.
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low-income populations.”); Dianne Greene Foster, et al., Number of Oral
Contraceptive Pill Packages Dispensed & Subsequent Unintended Pregnancies,
Obstetrics & Gynecology, March 2011, at 566 (concluding that when receipt of
oral contraceptives was made more convenient by dispensing them annually rather
than quarterly the unintended pregnancy rate dropped by 30% and the abortion rate
dropped by 46%).38 Because the government has demonstrated that the mandate
and accommodation increase access to contraception, we conclude that the
mandate and accommodation are effective ways to reduce the unintended
pregnancy rate. Accordingly, they serve the government’s compelling interests of
38 The government’s evidence further shows that when contraception is easily accessible, women not only use it more often, they select more effective methods of contraception. In research studies, “when out-of-pocket costs for contraceptives were eliminated or reduced, women were more likely to rely on more effective long-acting contraceptive methods.” IOM Report at 109. These methods include intrauterine devices and contraceptive implants, which are long-lasting and have the additional advantage of not being dependent on user compliance. See Birth Control Methods Fact Sheet, Dep’t of Health & Hum. Servs., Office on Women’s Health, http://www.womenshealth.gov/publications/our-publications/fact-sheet/birth-controlmethods.html (July 16, 2012) (showing that implants and intrauterine devices have a failure rate of less than 1 percent, compared to 5 percent for oral contraceptives and 11 to 16 percent for male condoms).
These longer-acting contraceptive methods have been underutilized in the United States compared to other developed countries where unintended pregnancy rates are lower, Jeffrey F. Peipert, et al., Preventing Unintended Pregnancies by Providing No-Cost Contraception, Obstetrics & Gynecology, Dec. 2012, at 1291, in large part because they pose higher up-front costs that discourage use. See IOM Report at 108. Evidence shows that women’s use of longacting contraceptive methods easily can be increased by making the methods cheaper and more readily available. In a study that provided intrauterine devices and implanted contraceptives at no cost to study participants, researchers found a significant decrease in unintended pregnancy and abortion rates in the study population. The study concluded that “[u]nintended pregnancies may be reduced by providing no-cost contraception and promoting the most effective contraceptive methods.” See Peipert, supra, at 1291.
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improving the health of women and children and assuring that women receive health benefits that meet their needs as well as the health care provided to men does.
Of course, a compelling interest alone is insufficient to satisfy RFRA; we must also assess “the marginal interest in enforcing” the challenged law against the religious adherents in question. Hobby Lobby, 134 S. Ct. at 2779. “RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430-31 (2006) (quoting 42 U.S.C. § 2000bb-1(b)); see also Yoder, 406 U.S. at 221 (“Where fundamental claims of religious freedom are at stake, however, we cannot accept such a sweeping claim [of compelling interest]; despite its admitted validity in the generality of cases, we must searchingly examine the interests that the State seeks to promote . . . and the impediment to those objectives that would flow from recognizing the claimed . . . exemption.”).
Yoder provides a good example of the application of this principle. There, the Amish plaintiffs challenged Wisconsin’s law requiring high school attendance until the age of 16. Yoder, 406 U.S. at 207-08. The government asserted that the law was justified by a general interest in the virtues of universal education. Id. at
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213-14. The Supreme Court was unsatisfied with this interest as it applied to the plaintiffs. “[T]he evidence adduced by the Amish . . . [was] persuasively to the effect that an additional one or two years of formal high school for Amish children in place of their long-established program of informal vocational education would do little to serve [the government’s stated] interests.” Id. at 222 (emphasis added).
Similarly, the government’s argument in O Centro exemplifies an overly generalized interest. The plaintiffs, a religious sect with origins in the Amazon rainforest, challenged the Controlled Substances Act’s regulation of hoasca, a hallucinogenic tea they used in religious ceremonies. The federal government argued that it had “a compelling interest in the uniform application of the Controlled Substances Act, such that no exception to the ban on use of the hallucinogen can be made to accommodate the sect’s sincere religious practice.” O Centro, 546 U.S. at 423. The Supreme Court dismissed this slippery slope argument, which it said “could be invoked in response to any RFRA claim for an exception to a generally applicable law,” because it failed to consider the limited effect of an exception for the particular plaintiffs, and its stated need for universal application was undermined by the existence of other exceptions. Id. at 435-36.
In contrast to Yoder and O Centro, here the government’s stated interests all concern the law’s application to these particular plaintiffs. The government argues that applying the accommodation procedure to the plaintiffs in these cases furthers
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its interests because the accommodation ensures that the plaintiffs’ female plan participants and beneficiaries—who may or may not share the same religious beliefs as their employer—have access to contraception without cost sharing or additional administrative burdens as the ACA requires. Unlike the exception made in Yoder for Amish children, whom the Supreme Court found had an adequate substitute for additional formal education to refute the government’s compelling interest, here the IOM Report’s findings of poor health outcomes related to unintended or poorly timed pregnancies apply to the plaintiffs’ female plan participants or beneficiaries and their children just as they do to the general population.
Moreover, the accommodation’s requirement that the plaintiffs inform their TPAs or HHS of their religious objection is essential to achieving the government’s compelling interests. It ensures that a TPA is aware when it has an obligation to provide contraceptive coverage so that the women covered by these plans can receive coverage if they want it, without gaps in such coverage. The notification also guarantees that the Departments will be able to identify objecting organizations, like the plaintiffs, to make sure that the accommodation procedures work (that is, to independently ensure that the women covered by the plaintiffs’ plans are receiving the coverage to which they are entitled). Thus, the government’s interests are sufficiently particular to satisfy the O Centro standard.
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(c) The Exceptions to the Mandate and Accommodation Do Not Undermine the Government’s Compelling Interest.
The plaintiffs argue that the government’s interests in providing broad contraceptive coverage cannot be compelling because the ACA provides exemptions from the mandate for other types of employers—namely, those (1) with grandfathered health plans, (2) with fewer than 50 employees, and (3) that qualify as “religious employers.” We disagree.
First, the existence of grandfathered plans does not undermine the government’s compelling interest in providing contraceptive coverage because grandfathered plans are only a short-lived, transitional measure intended to ease the burden of compliance with the ACA’s sweeping reforms. 78 Fed. Reg. at 39887 n.49 (“[T]he Affordable Care Act’s grandfathering provision is only transitional in effect, and it is expected that a majority of plans will lose their grandfathered status by the end of 2013.”). To be grandfathered, a plan must continue to provide virtually the same benefits for the same percentage cost sharing as the plan had in effect on March 23, 2010. 45 C.F.R. § 147.140(g)(1)(ii). It becomes difficult to comply with these requirements over time. See, e.g., Second Am. Compl. at 23-24, No. 1:12-cv-03489, Doc. 56 (describing the Atlanta Archdiocese’s inability to afford to maintain its grandfathered plan past January 1, 2014).
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Research by the Kaiser Family Foundation demonstrates that the percentage of workers covered by grandfathered plans has rapidly declined: 26 percent in 2014, down from 36 percent in 2013, 48 percent in 2012, and 56 percent in 2011. Kaiser Family Found. & Health Research & Ed. Trust, Employer Health Benefits 2015 Annual Survey at 218 (Sept. 22, 2015).39 In addition, some employees covered by grandfathered plans may in fact be receiving contraceptive benefits without cost sharing because, though not required to do so, their plans may include such a benefit.
As an additional consideration, we do not wish to penalize the government for phasing in the ACA’s requirements to help businesses adjust to a new health care regulatory landscape. Cf. Heckler v. Mathews, 465 U.S. 728, 746 (1984) (“We have recognized, in a number of contexts, the legitimacy of protecting reasonable reliance on prior law even when that requires allowing an unconstitutional statute to remain in effect for a limited period of time. . . . The protection of reasonable reliance interests is . . . a legitimate governmental objective.”). Accordingly, even if the mandate and accommodation are phased in
39 We acknowledge that the Kaiser Family Foundation’s 2015 data shows that 25% of covered workers are enrolled in a grandfathered plan, which is not much less than the 26% in 2014. But the Foundation reported that many employers were confused and unsure about whether their plans remained grandfathered, suggesting that employers may have inaccurately reported that they had grandfathered plans. Kaiser Family Found., supra, at 214.
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over time, the gradual implementation is insufficient to undermine the government’s compelling interest.
Second, the ACA’s treatment of employers with 50 or fewer employees as exempt from the “employer mandate” and therefore not required to provide employees with health insurance at all, see 26 U.S.C. § 4980H(a)(c)(2)(A), does not undercut the government’s compelling interests. If, on the one hand, smaller employers do not provide insurance coverage, then their employees must purchase health plans on the health insurance exchanges or face tax penalties. See id. § 5000A(a), (b)(1). And plans purchased on the exchanges will include contraceptive coverage. See 42 U.S.C. § 300gg-13(a)(4). If, on the other hand, smaller employers choose to provide health insurance, then their plans are subject to the contraceptive mandate. See id. The employees of small businesses therefore will receive contraceptive coverage regardless of whether their employers are exempt from providing health insurance. This exemption reflects a practical recognition that small businesses have different financial realities from larger businesses. It in no way undermines the government’s interest in providing contraceptive coverage without cost sharing because small businesses’ employees end up with health plans subject to the contraceptive mandate whether the employers provide health insurance or not.
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Third, the exemption from the contraceptive mandate for religious employers does not weaken the government’s stated interests. Under the HRSA guidelines, the contraceptive mandate does not apply to a group health plan run by a religious employer, defined by the regulations as “an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 45 C.F.R. § 147.131(a). In finalizing the regulations, the Departments declined to extend the exemption to other organizations that have religious objections to the mandate because:
Houses of worship and their integrated auxiliaries that object to contraceptive coverage on religious grounds are more likely than other employers to employ people of the same faith who share the same objection, and who would therefore be less likely than other people to use contraceptive services even if such services were covered under their plan. 78 Fed. Reg. at 39874. The exemption for religious employers attempts to balance the need for contraceptive coverage with our nation’s longstanding history of deferring to a house of worship’s decisions about its internal affairs. See 76 Fed. Reg. at 46623 (“[T]he Departments seek to provide for a religious accommodation that respects the unique relationship between a house of worship and its employees in ministerial positions.”); see also Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 704-06 (2012) (describing history of non-
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interference with internal affairs of houses of worship). The government undoubtedly has a compelling interest in respecting the values of religious employers and their employees, and pursuing that interest does not undermine the government’s equally compelling interest in improving women’s and the public’s health by making contraceptives easier to obtain. Especially with regard to sweeping legislation like the ACA, the government is often faced with competing compelling interests. Courts may allow the government to balance those interests without undermining any individual compelling interest. See Hobby Lobby, 134 S. Ct. at 2780 (“Even a compelling interest may be outweighed in some circumstances by another even weightier consideration.”).
We also reject the plaintiffs’ argument that the Departments’ distinction between houses of worship (which are exempted from the mandate) and other organizations with religious affiliation (which must seek an accommodation) is illogical. Although it may not universally hold true,40 it is a common-sense notion that a church’s employees likely share more beliefs with the church than do the employees of, for example, a school linked to that church, and therefore the employees of a church that objects to contraception are less likely to use contraceptive coverage even if it is available. See 78 Fed. Reg. at 39874. Thus,
40 EWTN in particular argues that the Departments’ distinction between houses of worship and other religious organizations is illogical and does not hold for EWTN because, like employees of “religious employers,” its employees share its religious convictions.
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the Departments distinguished between houses of worship and other religious groups using the readily available and well-established IRS tax status test. This test is predictable for affected organizations and easy for the Departments to implement. See United States v. Lee, 455 U.S. 252, 260-61 (1982) (noting it was reasonable for Congress to exempt self-employed Amish from Social Security taxes because the exemption for “the self-employed provided for a narrow category which was readily identifiable . . . [and] distinguishable from the generality of wage earners employed by others”). We do not think that the Departments’ decision to exempt houses of worship based on a bright-line test while accommodating other religious organizations undercuts the government’s compelling interests in enforcing the contraceptive mandate.
In sum, the mandate and accommodation further the government’s compelling interests by ensuring that women have contraceptive coverage without cost sharing or additional administrative hurdles. Additionally, by requiring organizations that opt out of the mandate to identify themselves, the government ensures that these organizations’ health plan participants and beneficiaries can receive the coverage seamlessly through other channels. Although the government has attempted to accommodate religious freedom as well as the needs of businesses, it has not done so in a way that undermines its goal of ensuring access to contraception.
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(ii) The Mandate and Accommodation Are the Least Restrictive Means of Furthering the Government’s Compelling Interests.
As a final step, we must determine whether the mandate and accommodation are “the least restrictive means of furthering” the government’s compelling interests. 42 U.S.C. § 2000bb-1(b). This test is “exceptionally demanding.” Hobby Lobby, 134 S. Ct. at 2780. The government must show “that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the [plaintiffs].” Id. When a less restrictive alternative serves the government’s compelling interest “equally well,” the government must use that alternative. Id. at 2782; see id. at 2786 (Kennedy, J. concurring) (considering whether alternative “equally furthers the Government’s interest”).
In determining whether potential alternatives to the mandate and accommodation equally further the government’s interests, we must consider both the cost to the government and the burden the alternatives impose on the affected women. See id. at 2760 (majority opinion) (“[W]e 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 employed by Hobby Lobby. 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.” (emphasis added) (alteration, footnote, citation,
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and internal quotation marks omitted)); id. at 2760 (clarifying that the Court did not hold that “corporations have free rein to take steps that impose disadvantages on others or that require the general public to pick up the tab” (alteration and internal quotation marks omitted)). Because there are no less restrictive means available that serve the government’s interests equally well, we hold that the mandate and accommodation survive strict scrutiny under RFRA.
Although the plaintiffs and the dissent suggest several potential less restrictive alternatives to the mandate and accommodation, their proposals fail to achieve the government’s interests as effectively. Indeed, their proposals impose burdens on women that would make contraceptives less accessible than they currently are. Because these proposals cannot be expected to reduce the rate of unintended pregnancies and thereby improve the health of women and children as effectively as the mandate and accommodation, they do not qualify as less restrictive alternatives under RFRA.
Previously, the Supreme Court and a member of this Court suggested that a less restrictive alternative would be to allow eligible organizations to notify HHS of their opt out, instead of having to provide Form 700 to their plan providers or TPAs. See Wheaton Coll., 134 S. Ct. at 2807; Eternal Word Television Network, 756 F.3d at 1349 (William Pryor, J., concurring) (“The United States, for example, could require the Network to provide a written notification of its religious
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objection to the Department of Health and Human Services, instead of requiring
the Network to submit Form 700—an instrument under which the health insurance
plan is operated—to the third-party administrator.”). The Departments have
responded to and addressed this concern by revising the accommodation
procedures to allow eligible organizations notify HHS directly of their desire to opt
out of the contraceptive mandate. 79 Fed. Reg. at 51094-95. With that potential
alternative incorporated into the regulatory scheme, we turn to the alternatives
proposed by the plaintiffs and the dissent.
(a) The Plaintiffs’ Proposals
The plaintiffs propose two less restrictive alternatives. First, they suggest
that the government could pay directly for all contraceptive coverage, in effect a single-payer system for contraceptives only,41 either by creating a new government program or expanding an existing one.42 Either way Congress would need to pass
legislation that would fundamentally change how the majority of American women
41 In a single-payer system, the government—as opposed to employers, health insurers, or patients—pays for healthcare services. See Notre Dame II, 786 F.3d at 615; Single-Payer, Merriam Webster Dictionary, http://www.merriam-webster.com/dictionary/single-payer (last visited Feb. 12, 2016). Although the plaintiffs never call their proposal a “single-payer” system for contraceptives, the label applies because they propose a system in which the government would be the sole payer for contraceptives and related services. It is important to note that all other health care would continue to be provided through our existing system.
42 The plaintiffs suggest, for example, that Congress could expand Title X, which currently benefits only low-income families; patients whose income exceeds 250 percent of the poverty level must pay for any services they receive through Title X programs. See 42 U.S.C. § 300a-4(c); 42 C.F.R. § 59.5(a)(8).
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receive their healthcare coverage for contraception.43 See Jessica C. Smith & Carla
Medalia, U.S. Census Bureau, Health Insurance Coverage in the U.S.: 2014 at 3
(2015) (55% of Americans had insurance coverage provided by an employer in
2014). Among other things, adopting a single-payer system for contraception
would require Congress to squeeze insurance companies out of an entire segment of the health insurance business.44 Second, the plaintiffs assert that the
government could provide tax credits to reimburse women for purchasing contraceptive coverage.45 Under either the single-payer or tax credit proposals, all
coverage for contraception and related services would operate outside the existing,
largely employer-based, insurance system.
43 In Hobby Lobby, the government argued that RFRA does not permit the court to consider proposals that would require the government to create entirely new programs as less restrictive alternatives. The Court rejected this argument, explaining “we see nothing in RFRA that supports this argument.” Hobby Lobby, 134 S. Ct. at 2781. Accordingly, we consider this proposal even though it would require substantial congressional action to expand significantly an existing program or create a new one.
44 We may, of course, consider the burdens that a proposed alternative places on nonbeneficiaries, such as insurance companies. See Cutter v. Wilkinson, 544 U.S. 709, 720-722 (2005) (“[A]pplying RLUIPA, courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries. . . . Our decisions indicate that an accommodation must be measured so that it does not override other significant interests.”).
45 The plaintiffs suggest the government could require women to purchase separate contraceptive coverage on the healthcare exchanges and then offer tax credits to offset the cost of purchasing the coverage. This proposal would require Congress to amend the ACA because the exchanges are statutorily restricted to selling only full health insurance policies. See 42 U.S.C. §§ 18021(a)(1)(B), 18022(a), (b).
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Most importantly, these proposals are not less restrictive alternatives because they would not serve the government’s interests “equally well.”46 Hobby
Lobby, 134 S. Ct. at 2782. As the Departments explain, these proposals would
cause all women who have existing contraceptive coverage through group health
insurance plans to lose such coverage, forcing them instead to “take steps to learn
about, and to sign up for, a new health benefit.” 78 Fed. Reg. at 39888. Indeed,
under these proposals, women would have one employer-provided health insurance
plan covering healthcare other than contraception. Then, they would have to take
additional, separate steps to secure contraceptives or contraceptive coverage.
Under a single-payer system for contraceptives, they would have to research the
federal entitlement for contraceptives and register for the program. Under a tax-
credit system, they would have to research plans offering separate contraceptive
coverage, select a plan, purchase coverage, and later file for a tax credit as part of their individual tax returns.47 The mandate and accommodation present an easier,
46 We acknowledge dicta in Hobby Lobby suggesting as a less restrictive alternative that the government pay directly for contraception; however, the Supreme Court did not hold that such a program was a less restrictive alternative. 134 S. Ct. at 2871-82 (“[W]e 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.”).
47 The tax-credit proposal is particularly problematic because it forces women to pay up front for contraceptives in exchange for tax credits later. But many women simply would not be able to afford to wait a year for a refund from the government in the form of a tax credit and, as the government’s evidence shows, would instead have to forgo using contraceptives. See IOM Report at 109 (recognizing that “cost-sharing requirements, such as deductibles and copayments, can pose barriers to care and result in reduced use of preventive . . . services”); see also supra
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simpler, and more certain path for women by ensuring that, by obtaining health insurance, they also secure contraceptive coverage, even when their employers opt out.
Because plaintiffs’ proposals impose greater barriers to contraceptive access than exist under the mandate and accommodation, their proposals likely will lead to lower rates of contraceptive usage (along with use of less effective forms of contraception), meaning these proposals will be less effective at preventing unintended pregnancies and concomitant health consequences.48 See IOM Report at 104-09; Foster, supra, at 566 (reflecting that when obtaining contraceptives became less convenient, the rate of unintended pregnancy increased); see also 78 Fed. Reg. at 39888 (recognizing that these proposals would be “less effective than the employer-based system of health coverage in advancing the government’s compelling interests”).
Plaintiffs’ proposals would make contraception less accessible not only to women who currently receive contraceptive coverage through a group insurance
note 38. In contrast, the mandate and accommodation require women to pay nothing upfront for contraceptives. Accordingly, contraceptives are significantly more available to women under the mandate and accommodation than they would be under the tax-credit proposal.
48 The two other circuit courts to address this issue have rejected similar alternatives for the same reason. See Notre Dame II, 786 F.3d at 616-17 (rejecting similar proposed alternatives because they “would impede the receipt of [contraceptive] benefits”); Priests for Life I, 772 F.3d at 265 (holding that proposed alternatives “would not serve the government’s compelling interest with anywhere near the efficacy of the challenged accommodation and would instead deter women from accessing contraception”).
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plan, but also to women who currently purchase health insurance through the
exchanges, including women who work for an employer with fewer than 50 full-
time employees. Under the current framework, these women must research and
compare potential health insurance plans sold on the exchanges and then purchase
and sign up for a plan. As a result of their efforts, they receive health insurance
that includes contraceptive coverage. See 42 U.S.C. § 300gg-13(a)(4). Under the
plaintiffs’ proposals, these women would still have to procure health insurance
from the exchanges. But then they would have to take the additional steps
described above to obtain coverage for contraceptives. In other words, women
who currently purchase insurance through the exchanges would also face greater
burdens accessing contraceptives under a single-payer system.49
49 It is unclear whether our dissenting colleague advocates as a less restrictive alternative replacing our insurance-based system with a single-payer system for contraceptive coverage. On the one hand, the dissent never states that a single-payer system would be a less restrictive alternative, instead proposing that the ACA and ERISA need only a “slight[] tweak,” not the jettisoning of our insurance-based system for contraceptives that a single-payer system would entail. Dissent at 137. On the one other hand, the dissent argues that the government should “provid[e] for contraceptive coverage directly without the accommodation’s administrative rigmarole” so that the government could “offer cost-free access to each and every woman in the United States.” Id. at 134. This sounds to us like a single-payer system.
Indeed, the dissent suggests that a single-payer system would be as effective or more effective than the mandate and accommodation at making contraceptives accessible to women. Because under either system women pay nothing for contraceptives, to compare women’s access to contraceptives under the two systems, we must focus on the administrative burdens that women face under either system.
We conclude that, on the whole, women face fewer barriers to obtaining contraceptives under the mandate and accommodation than they would under a single-payer system. Most significantly, most women covered by group health insurance plans and all who purchase insurance on the exchanges seamlessly receive coverage under the mandate and accommodation.
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After careful consideration, we conclude that the government has shown that
contraceptives would be less accessible—and used less frequently or effectively—
under the plaintiffs’ proposals then they are under the mandate and
Nonetheless, the dissent asserts that a single-payer system is a more effective way to improve access to contraceptives because three categories of women whose employers are exempt from the contraceptive mandate—(1) women employed by small businesses, (2) women covered by grandfathered plans, and (3) women employed by churches or church-affiliated organizations— would have greater access to contraceptives under such a system. See id. at 50. After considering these three categories, we remain convinced that a single-payer system would be less effective than the mandate and accommodation.
First, the dissent suggests that women whose employers have 50 or fewer full-time employees would receive better access to contraceptives under a single-payer system. But, as we explained above, these women receive contraceptive coverage under the mandate and accommodation regardless of whether their employers elect to provide health insurance coverage or they purchase a plan on the exchanges. See supra Part III.A.2.c.(i).(c). Given that these women currently have seamless access to contraceptives, we fail to see how this group supports the dissent’s argument.
Second, the dissent asserts that women whose health plans have a grandfathered exemption would have better access to contraceptives under a single-payer system. But the dissent overlooks that the grandfathered exemption is a temporary measure, meaning the number of women covered by plans subject to the exemption has rapidly declined and should continue to decline over time because it becomes more expensive for plans to maintain their grandfathered status. See 45 C.F.R. § 147.140(g)(1) (requiring grandfathered plans to provide virtually the same benefits for the same percentage cost sharing that the plan had in effect on March 2010). We cannot say that a single-payer system serves the government’s interest as effectively or more effectively simply because in the short term a subset of women may have easier access to contraceptives under a single-payer system.
Third, the dissent argues that women employed by churches and church-affiliated organizations would have easier access to contraceptives under a single-payer system. Even if that is true for this relatively small group of women, the Departments have explained that these employees are likely to share their employer’s religious objection to contraception, meaning they are “less likely than other people to use contraceptive services even if such services were covered under the plan.” 78 Fed. Reg. at 39874. All together, we cannot say that a single-payer system serves the government’s interest as effectively as the mandate and accommodation when we consider that a single-payer system would impose greater barriers to accessing contraceptives for most women who purchase health insurance from an employer and all women who purchase plans on the exchanges. What’s more, the balance tips even further in favor of the mandate and accommodation when we consider the impact of imposing on non-beneficiaries a single-payer system for an entire segment of preventative care. See Cutter, 544 U.S. at 720.
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accommodation. Given the government’s compelling interest in minimizing the barriers women face in accessing contraceptives so that they will use contraceptives to lower the rate of unintended pregnancies, we conclude that the plaintiffs’ proposals would not serve the government’s interest equally as well as the mandate and accommodation. Thus, they fail to qualify as less restrictive alternatives.
The dissent criticizes our position as giving the Departments a “free pass” on the least restrictive means requirement. Dissent at 139. Our dissenting colleague takes our analysis to mean that the government can defeat a potential alternative merely by showing that the alternative would take away a benefit—any benefit— that the government’s existing framework provides to “third parties” (here, the women who are the intended beneficiaries of the mandate and accommodation). Id. at 138. The dissent overstates our position. We are not saying that the government can always overcome strict scrutiny by showing that proposed alternatives would take away a benefit that the current framework provides. Rather, on the facts and record of this case—including the evidence that when women face greater burdens (whether financial or administrative) in accessing contraceptives or contraceptive coverage, they are less likely to use contraceptives—we must conclude that plaintiffs’ alternatives, which make contraceptives less accessible, would be significantly less effective than the
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mandate and accommodation at reducing the rate of unintended pregnancies and thus would thwart the government’s interests.50
(b) The Dissent’s Proposal The dissent suggests that Congress could “slightly tweak” the ACA and ERISA to “eliminate the need for eligible organizations to affirmatively designate the third-party administrators of their health plans.” Dissent at 137. We understand the dissent’s proposal to be that Congress should pass legislation and the Departments should enact regulations that would designate the TPA for a selfinsured eligible organization as plan administrator for purposes of contraceptive coverage without requiring the eligible organization to communicate its religious objection to anyone. The dissent’s proposal fails to serve the government’s interest equally as well as the accommodation because the alternative would make contraceptives less accessible to women covered by eligible organizations’ plans than would the accommodation. The dissent fails to explain—and we cannot imagine—how a TPA would know when an employer has a religious objection to providing contraceptive coverage under the proposal and thus that the TPA is required to
50 The Eighth Circuit’s proposal that “the government could pay for the distribution of contraceptives at community health centers, public clinics, and hospitals with income-based support” likewise would impose additional administrative burdens on women and thus in a similar way fails to satisfy the government’s interests. Sharpe Holdings, 801 F.3d at 945.
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provide the coverage in the employer’s stead if the employer is not required to
notify anyone. Like the TPAs, the government must also be able to identify
women whose employers object on religious grounds to providing contraceptive
coverage. Otherwise, the government will be unable to ensure that the participants
and beneficiaries of the abstaining organization’s health insurance plan receive the
coverage the law mandates. Without an effective way to identify any gaps, the
government would be hamstrung in its ability to accommodate employers’
sincerely held religious beliefs while also pursuing the interests that Congress
intended to achieve in passing the Women’s Health Amendment.51
51 The Eighth Circuit suggested as a less restrictive alternative that the Departments revise the regulations governing the accommodation to remove the requirement that when notifying HHS of its religious objection, an eligible organization must identify its TPA and provide the TPA’s contact information. Sharpe Holdings, 801 F.3d at 944. The Eighth Circuit concluded that this alternative would be “less onerous” than the current regulations yet “permit[] the government to further its interests.” Id. The Eighth Circuit relied on the fact that when the Supreme Court in Wheaton College created an accommodation, the Court required the college only to notify HHS that it had an objection to providing coverage for contraceptive services, and not to identify its TPA. Id.
We disagree with the Eighth Circuit that this alternative would serve HHS’s interests equally well. As the Departments explained, the information required under the regulations is “necessary for the Departments to determine which entities are covered by the accommodation, to administer the accommodation, and to implement the policies in the . . . final regulations.” 79 Fed. Reg. at 51095. The Eighth Circuit has not explained why this is not so. Although the Supreme Court in Wheaton College did not require the college to identify its TPA to HHS to receive an accommodation, the information was unnecessary because HHS already knew the identity of the college’s TPA. See Wheaton College, 134 S. Ct. at 2815 (Sotomayor, J., dissenting) (“HHS is aware of Wheaton’s third-party administrator in this case.”). Thus, Wheaton College does not suggest that HHS could administer the mandate and accommodation in other cases without requiring an eligible organization to identify its TPA.
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The dissent’s proposal would create gaps or delays in contraceptive
coverage for plan participants and beneficiaries of eligible organizations that refuse
to provide contraceptive coverage or tell anyone of their objection. Until the
insured, the TPA, or HHS learned of the silent omission of contraceptive coverage,
these women would be denied the contraceptive coverage to which they are
irrefutably entitled. During this period, such eligible organizations would, in
effect, be imposing their religious beliefs on women who wish to take advantage of
their rights under federal law. These gaps in contraceptive coverage would
frustrate the government’s interests. Because the dissent’s proposal substantially
burdens religious exercise and fails to meet the government’s compelling interests,
it cannot constitute a less restrictive alternative.52
52 We pause to note that if we assume that the dissent’s substantial burden analysis is correct—meaning the only objective inquiry for determining whether there is a substantial burden is the magnitude of the penalty, see Dissent at 116—then the dissent’s proposal would substantially burden the plaintiffs’ religious exercise. Presumably the dissent’s position is that the proposal presents a satisfactory alternative because it requires no “affirmative participation” by the objecting organization. Id. at 139. In fact, though, a TPA’s obligation to provide contraceptive coverage to a specific plan participant or beneficiary would remain tied to and—in some limited way—“triggered” by actions taken by the organization. An eligible organization is required to take two actions before its TPA becomes obligated to provide contraceptive coverage to a specific plan participant or beneficiary: the eligible organization must (1) contract with a specific TPA to provide administrative services for its plan and (2) notify the TPA of the individuals covered by its plan. Unless an eligible organization hired a specific TPA and provided a list of its insureds, those insureds would never receive contraceptive coverage from the TPA, even under the dissent’s proposal. See Notre Dame II, 786 F.3d at 617 (explaining that under a similar proposal when a university hired an unemployed person who “by virtue of becoming employed by [the organization], obtained contraception coverage for the first time,” the university’s acts would “‘trigger[]’ the new employee’s access to contraception”).
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We hold that, even if the accommodation substantially burdens the plaintiffs’ religious exercise, it does not violate RFRA because it is the least restrictive means of furthering the government’s compelling interests in the contraceptive mandate.
B. EWTN’S Free Exercise Claims Plaintiff-appellant EWTN additionally claims that the contraceptive mandate
violates the Free Exercise Clause of the First Amendment. The Supreme Court’s Smith decision continues to apply to Free Exercise claims outside of the RFRA context; thus, neutral and generally applicable laws need not be justified by any compelling interest even if those laws incidentally burden religious exercise. Smith, 494 U.S. at 885. A law is neutral unless “the object of a law is to infringe upon or restrict practices because of their religious motivation.” Lukumi Babalu
The plaintiffs’ religious objections to taking acts that “trigger[]” contraceptive coverage, “facilitat[e]” access to contraceptives, or render them “complicit” in a scheme that provides access to contraceptives apply with equal force to the dissent’s proposal. See EWTN Reply Br. at 5, 10-11; Catholic Charities and CENGI Appellee Br. at 10, 13, 20. Indeed, Catholic Charities and CENGI alleged in their complaint that their “religious beliefs prohibit them from contracting with [a] . . . third-party administrator that will, as a direct result, procure or provide the objectionable coverage to [their] employees.” Second Am. Compl. at 49, No. 1:12-cv-03489WSD, Doc. 56. We acknowledge that the dissent’s proposal does not require an eligible organization to tell HHS or its TPA that it has a religious objection to providing contraceptive coverage. But the plaintiffs do not claim that the government imposes a substantial burden by forcing them to state that they have a religious objection. Rather, they claim a substantial burden because, they assert, their objection would cause their TPAs to provide contraceptive coverage.
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Aye, 508 U.S. at 533. And a law is generally applicable if it does not “in a selective manner impose burdens only on conduct motivated by religious belief.” Id. at 543. “A law failing to satisfy these requirements must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest.” Id. at 531-32. But if a law indeed is neutral and generally applicable, “then rational basis scrutiny should be applied, requiring that the plaintiff show that there is not a legitimate government interest or that the law is not rationally related to protect that interest.” GeorgiaCarry.Org, Inc v. Georgia, 687 F.3d 1244, 1255 n.21 (11th Cir. 2012).
Congress included the contraceptive mandate in the ACA to improve women’s health and public health generally. There is no evidence whatsoever that the mandate was enacted in an attempt to restrict religious exercise. To the contrary, in implementing the contraceptive mandate the Departments have attempted to accommodate religious interests by granting exceptions for religious employers and those organizations with religious objections to providing contraceptive coverage. EWTN nonetheless argues that the mandate is non-neutral because the exemption and accommodation “discriminate[] among religious objectors, creating a three-tiered system.” EWTN Appellant Br. at 54. But the regulations do not discriminate between religious denominations or infringe upon or restrict conduct because of its religious motivation. Rather, the procedures
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distinguish among organizations on the basis of their tax status. Thus EWTN has failed to show that the mandate is non-neutral.
EWTN also argues that the mandate is not generally applicable because the ACA carves out small employers and grandfathered plans. For the same reasons we rejected this argument as it pertains to the plaintiffs’ RFRA claim, we reject it here. Just as these exceptions do not undermine the government’s compelling interests justifying the contraceptive mandate, they do not prevent the mandate from being generally applicable as defined by Lukumi Babalu Aye. The exceptions for small businesses and grandfathered plans apply equally to religious employers and non-religious employers. The exceptions in no way “impose burdens only on conduct motivated by religious belief.” Lukumi Babalu Aye, 508 U.S. at 543.
Because the contraceptive mandate is neutral and generally applicable, to invalidate it the plaintiff must show that is it not rationally related to a legitimate government interest. See GeorgiaCarry.Org, 687 F.3d at 1255 n.21. EWTN cannot make such a showing. We have already concluded that the government has a compelling (and therefore legitimate) interest in ensuring women have access to contraceptives without cost sharing. See supra Part III.A.2.c.(i). The mandate is clearly rationally related to that interest and thus passes muster under the Free Exercise Clause. C. EWTN’S Establishment Clause Claim
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EWTN next argues that the contraceptive mandate violates the Establishment Clause by discriminating among religious organizations. Specifically, EWTN objects to the way the exemption and accommodation distinguish between houses of worship and other types of religious organizations. As an initial matter, the Supreme Court “has long recognized that the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause.” Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136, 144-145 (1987); see also Wallace v. Jaffree, 472 U.S. 38, 83 (1985) (O’Connor, J., concurring) (“It is disingenuous to look for a purely secular purpose when the manifest objective of a statute is to facilitate the free exercise of religion by lifting a government-imposed burden. Instead, the Court should simply acknowledge that the religious purpose of such a statute is legitimated by the Free Exercise Clause.”).
Like its claim based on the Free Exercise Clause, EWTN’s Establishment Clause claim fails because the accommodation does not distinguish among religious groups on the basis of denomination, but rather on non-denominational attributes of an objecting organization. The accommodation relies on tax status, which is a permissible way to distinguish between organizations for the purpose of drafting a religious exemption. “[R]eligious employers, defined as in the cited regulation, have long enjoyed advantages (notably tax advantages) over other
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entities, without these advantages being thought to violate the establishment clause.” Geneva Coll., 778 F.3d at 443 (alteration in original and internal quotation marks omitted); see also Walz v. Tax Comm’n of N.Y., 397 U.S. 664, 666, 672-73 (1970) (upholding a tax exemption on social welfare services that churches performed and emphasizing that “[t]he limits of permissible state accommodation to religion are by no means co-extensive with the noninterference mandated by the Free Exercise Clause.”). We therefore reject EWTN’s Establishment Clause challenge. D. EWTN’S Free Speech Claim
Lastly, EWTN contends that the contraceptive mandate violates the Free Speech Clause by compelling the organization to speak in order to avail itself of the accommodation.53 “[T]he right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all.” Wooley v. Maynard, 430 U.S. 705, 714 (1977). In Wooley, the plaintiff objected to the slogan on New Hampshire’s license plate: “Live Free or Die.” Id. at 707-08. He argued that by criminalizing his efforts to cover up the slogan, the government forced him to express a message contrary to his beliefs. The Supreme Court agreed that the license plate was forced
53 EWTN’s Free Speech claim that the regulations compel silence is moot because the Department removed the non-interference provisions from the regulations in 2014. 79 Fed. Reg. at 51095.
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speech. The Court then applied United States v. O’Brien, 391 U.S. 367 (1968), to hold that the government’s stated interest in identifying passenger cars was not sufficiently compelling because passenger cars could be identified in other ways. Id. at 715-17.
Assuming, arguendo, that the act of filling out Form 700 or notifying HHS implicates the Free Speech Clause, this Court must ask whether the government’s “countervailing interest is sufficiently compelling to justify” the forced speech. Id. at 716. Our disposition of the plaintiffs’ RFRA claims decides the issue. Because the government has a compelling interest in ensuring that women have access to contraceptive care without additional financial or administrative burden, it may force the plaintiffs to speak simply to opt out of the mandate.
IV. CONCLUSION We hold that the accommodation for the contraceptive mandate does not violate RFRA because it does not substantially burden the plaintiffs’ religious exercise and because the government’s regulatory scheme is the least restrictive means of furthering its compelling interests. The regulations also do not violate the Free Exercise, Establishment, and Free Speech Clauses of the First Amendment. With regard to EWTN, we affirm the district court’s grant of summary judgment to the government. With regard to CENGI and Catholic Charities, we vacate the district court’s grant of summary judgment on the
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plaintiffs’ RFRA claim and remand to the district court with instructions to grant the government’s summary judgment motion.
* * * The question of whether the mandate and accommodation violate RFRA is currently before the Supreme Court in Zubik v. Burwell, Nos. 14- 1376 and 141377, and other consolidated cases. The Supreme Court will hold oral argument in these cases on March 23, 2016. Because the Supreme Court will soon render a decision addressing this issue, we believe it is appropriate to stay enforcement of the mandate and accommodation against the plaintiffs until the Supreme Court issues a decision. Accordingly, the Secretary of Health and Human Services is enjoined from enforcing against EWTN, Catholic Charities, and CENGI the substantive requirements set forth in 42 U.S.C. § 300gg-13(a)(4) and from assessing fines or taking other enforcement action against EWTN, Catholic Charities, or CENGI for non-compliance. The parties are directed to file a notice with this Court once the Supreme Court has issued its decision in Zubik. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
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APPENDIX: FORM 700
EBSA FORM 700- CERTIFICATION (revised August 2014) This form may be used to certify that the health coverage established or maintained or arranged by the organization listed below qualifies for an accommodation with respect to the federal requirement to cover certain contraceptive services without cost sharing, pursuant to 26 CFR 54.9815-2713 A, 29 CFR 2590.715-2713A, and 45 CFR 147.131. Alternatively, an eligible organization may also provide notice to the Secretary of Health and Human Services. Please fill out this form completely. This form should be made available for examination upon request and maintained on file for at least 6 years following the end of the last applicable plan year. |
Name of the objecting organization
Name and title of the individual who is authorized to make, and makes, I this certification on behalf of the organization
Mailing and email addresses and phone number for the individual listed above
I certify the organization is an eligible organization (as described in 26 CFR 54.9815-2713A(a), 29 CFR 2590.715-2713A(a); 45 CFR 147.131(b)) that has a religious objection to providing coverage for some or all of any contraceptive services that would otherwise be required to be covered.
Note: An organization that offers coverage through the same group health plan as a religious employer (as defined in 45 CFR 147.131(a)) and/or an eligible organization (as defined in 26 CFR 54.9815-2713A(a); 29 CFR 2590.715-2713 A(a); 45 CFR 147.131(b)), and that is part of the same controlled group of corporations as, or under common control with, such employer and/or organization (within the meaning of section 52(a) or (b) of the Internal Revenue Code), is considered to meet the requirements of 26 CFR 54.9815-2713 A(a)(3), 29 CFR 2590.715-2713 A(a)(3), and 45 CFR 147.131(b)(3).
I declare that I have made this certification, and that, to the best of my knowledge and belief, it is true and correct. I also declare that this certification is complete.
Signature of the individual listed above
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APPENDIX: FORM 700
The organization or its plan using this form must provide a copy of this certification to the plan's health insurance issuer (for insured health plans) or a third party administrator (for self-insured health plans) in order for the plan to be accommodated with respect to the contraceptive coverage requirement.
Notice to Third Party Administrators of Self-Insured Health Plans
In the case of a group health plan that provides benefits on a self-insured basis, the provision of this certification to a third party administrator for the plan that will process claims for contraceptive coverage required under 26 CFR 54.9815-2713(a)(l)(iv) or 29 CFR 2590.7152713(a)(l)(iv) constitutes notice to the third party administrator that the eligible organization:
(1) Will not act as the plan administrator or claims administrator with respect to claims for contraceptive services, or contribute to the funding of contraceptive services; and
(2) The obligations of the third party administrator are set forth in 26 CFR 54.9815-2713 A, 29 CFR 2510.3-16, and 29 CFR 2590.715-2713A.
As an alternative to using this form, an eligible organization may provide notice to the Secretary of Health and Human Services that the eligible organization has a religious objection to providing coverage for all or a subset of contraceptive services, pursuant to 26 CFR 54.98152713A(b)(l)(ii)(B) and (c)(l)(ii), 29 CFR 2590.715-2713A(b)(l)(ii)(B) and (c)(l)(ii), and 45 CFR 147.13l(c)(l)(ii). A model notice is available at: http://www.cms.gov/cciio/resources/Regulationsand-Guidance/index.html#Prevention.
This form or a notice to the Secretary is an instrument under which the plan is operated.
PRA Disclosure Statement
According to the Paperwork Reduction Act of 1995, no persons are required to respond to a collection of information unless it displays a valid OMB control number. The valid OMB control number for this information collection is 1210-0150. An organization that seeks to be recognized as an eligible organization that qualifies for an accommodation with respect to the federal requirement to cover certain contraceptive services without cost sharing may complete this self-certification form, or provide notice to the Secretary of Health and Human Services, in order to obtain or retain the benefit of the exemption from covering certain contraceptive services. The selfcertification form or notice to the Secretary of Health and Human Services must be maintained in a manner consistent with the record retention requirements under section 107 of the Employee Retirement Income Security Act of 1974, which generally requires records to be retained for six years. The time required to complete this information collection is estimated to average 50 minutes per response, including the time to review instructions, gather the necessary data, and complete and review the information collection. If you have comments concerning the accuracy of the time estimate(s) or suggestions for improving this form, please write to: U.S. Department of Labor, Employee Benefits Security Administration, Office of Policy and Research, 200 Constitution Avenue, N.W., Room N-5718, Washington, DC 20210 or email ebsa.opr@dol.gov and reference the OMB Control Number 1210-0150.
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ANDERSON, Circuit Judge, concurring: I join Judge Jill Pryor’s opinion for the court in its entirety. I write
separately only to emphasize one point already made in the opinion. Plaintiffs seem to suggest, as a less restrictive means, that a religious employer be allowed to opt out without notifying anyone – without requiring even the de minimis notice to Health and Human Services (“HHS”) pursuant to the most recent alternative notice provided for in the Regulations. However, the necessary consequence of such an automatic opt-out would be the imposition of plaintiffs’ religious beliefs on their female employees. In other words, if HHS were not able to identify which employers have opted out, the employees of such employers would not receive contraceptive coverage, at least until they happened to sua sponte discover that their employer had opted out, and until such employees happened to sua sponte discover their statutory entitlement. Only then would such employees be in position to notify HHS, and begin their coverage. Such an automatically exempted employer – notifying no one of its decision to opt out -- would at least temporarily impose its own religious beliefs on its employees and deprive them of the coverage to which they are entitled under the statute and regulations. RFRA does not require that construction of the law. Rather, the Supreme Court in Hobby Lobby recognized that “RFRA took the position that ‘the compelling interest test as set forth in prior Federal rulings is a workable test for striking sensible balances
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between religious liberty and competing prior governmental interests.’” Burwell v. Hobby Lobby Stores, Inc., 537 U.S. __, __, 134 S. Ct. 2751, 2785 (2014)(quoting from the express RFRA provision cited and quoted below). See also Cutter v. Wilkinson, 544 U.S. 709, 720, 125 S. Ct. 2113, 2121 (2005)(“Properly applying RLUIPA, courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries”); id. at 722, 125 S. Ct. at 212223 (“Our decisions indicate that an accommodation must be measured so that it does not override other significant interests . . .. We have no cause to believe that RLUIPA would not be applied in an appropriately balanced way.”). Indeed, RFRA contains an express provision which incorporates the prior Federal case law contemplating a “sensible balance” between religious liberty and competing governmental interests. See 42 U.S.C. §2000bb(a)(5) (“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.”) Plaintiffs’ position – and its necessary consequence of the imposition of plaintiffs’ religious views on others – clearly does not strike a “sensible balance” between religious liberty and the government’s compelling interests in this case. See Hobby Lobby, 537 U.S. at __, 134 S. Ct. at 2786-87 (Kennedy, J., concurring) (“[N]o 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
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as employees, in protecting their own interests, interests the law deems compelling.”).
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TJOFLAT, Circuit Judge, dissenting: I diverge from the majority on the question of whether the Religious
Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et seq., shields Eternal Word Television Network and the Archdiocese of Atlanta, the Diocese of Savannah, and their related schools and charities (the “Dioceses”) from the Government’s efforts to force them to participate in a complicated regulatory scheme. Doing so, these parties sincerely believe, would make them complicit in violating the sanctity of human life. As I understand RFRA’s plain meaning and the controlling precedent, on full display in the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc., 573 U.S. __, 134 S. Ct. 2751, 189 L. Ed. 2d 675 (2014), the answer should be straightforward. Under RFRA’s demanding scrutiny, the Government cannot put religious believers to the choice of abandoning the commands of their faith or paying massive penalties unless it can show that it has no other way of achieving a compelling interest. Just as in Hobby Lobby, the Government has failed to make this showing. We are therefore bound to grant Eternal Word Television Network and the Dioceses the relief they seek.
“Great cases, like hard cases, make bad law.” N. Sec. Co. v. United States, 193 U.S. 197, 364, 24 S. Ct. 436, 468, 48 L. Ed. 679 (1904) (Holmes, J., dissenting). In such circumstances, practical concerns “exercise a kind of hydraulic pressure” under which “even well settled principles of law will bend” as
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a result of “some accident of immediate overwhelming interest.” Id. at 364, 401, 24 S. Ct. at 468. In the background of this litigation rage many competing interests: What sort of legal regime would best preserve the American ideal of religious liberty? How can we most effectively expand healthcare access? When and where should the interests of society trump those of the individual? Who will be left holding the check for any newly minted social-welfare programs?
It is Congress’s responsibility—not the prerogative of courts—to balance these interests. And Congress made clear in RFRA how that balance is to be struck: the freedom of religious exercise is to be jealously guarded by subjecting, across the board, Congress’s own actions to the most rigorous scrutiny. Under that scrutiny, the Government’s attempt here to burden Eternal Word Television Network and the Dioceses’ religious exercise must give way. Concluding otherwise, the majority makes bad law. For that reason, I dissent.
I. The devil, as they say, is in the details. Nowhere does this adage ring truer than in the administrative morass of the so-called “accommodation,” the regulatory mechanism by which religiously objecting employers can affirmatively opt out of the Affordable Care Act’s so-called “contraceptive mandate.” The resolution of this case turns on the exact functioning of an evolving set of overlapping and intricate regulations promulgated by three Executive-branch agencies. These
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regulations overlay a particularly unsettled and murky region of the generally unsettled and murky landscape of federal healthcare regulation. Therefore, it is critical to get the details right. And they are devilish indeed.
A. Under the Patient Protection and Affordable Care Act of 2010 (“the ACA”), covered employers, as part of their “[s]hared responsibility” for their employees’ healthcare needs, are required to provide qualifying employees with health plans that meet certain standards of “minimum essential coverage.” 26 U.S.C. §§ 4980H(a), 5000A(f)(2). Covered employers who fail to do so have to pay a “tax”1 of $100 per day for each affected employee. Id. § 4980D(a)–(b). For continued “noncompliance” after receiving a “notice of examination,” employers are subject to a minimum penalty in the amount of $2,500 or $15,000 per affected employee, depending on whether the violations “are more than de minimis.” Id. § 4980D(b)(3). Included in the ACA’s definition of “minimum essential coverage” are a number of preventive healthcare services. Relevant here is the requirement to provide “with respect to women, such additional preventive care and screenings … as provided for in comprehensive guidelines supported by the Health Resources
1 It is ironic that the ACA refers to an annual penalty for noncompliance of $36,500 per employee as a “tax.” Cf. Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. __, __, 132 S. Ct. 2566, 2593–2600, 183 L. Ed. 2d 450 (2012).
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and Services Administration.” 42 U.S.C. § 300gg-13(4). To develop these
guidelines, the Health Resources and Services Administration, a subpart of the
Department of Health and Human Services, sought recommendations from the
Institute of Medicine, a division of the National Academies of Sciences. The
Institute of Medicine’s recommendations2 were ultimately adopted in identical
regulations promulgated by the Department of Treasury, the Department of Labor,
and the Department of Health and Human Services. See 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).3 As a result, nonexempt employers are responsible for
providing their plan beneficiaries with coverage for “[a]ll Food and Drug
Administration approved contraceptive methods, sterilization procedures, and
patient education and counseling for all women with reproductive capacity.”
Women’s Preventive Services Guidelines, U.S. Dep’t of Health and Human Servs.,
2 The Institute of Medicine’s recommendations were laid out in its report Clinical Preventive Services for Women: Closing the Gaps, which was released on July 19, 2011. Like much of the ACA, that report and the process used to generate it sparked significant controversy, prompting public backlash and a dissent from one of the committee members. Inst. of Med., Clinical Preventive Services for Women: Closing the Gaps Appendix D at 231–35 (2011) (Anthony Lo Sasso, dissenting); see also Grace Sch. v. Burwell, 801 F.3d 788, 815–22 (7th Cir. 2015) (Manion, J., dissenting); 77 Fed. Reg. 8725, 8725–26 (Feb. 15, 2012); Helen M. Alvaré, No Compelling Interest: The “Birth Control” Mandate and Religious Freedom, 58 Vill. L. Rev. 379, 391–431 (2013). Because I assume that the Government has a compelling interest in providing the preventive services at issue in this case, I pass no judgment on the Institute of Medicine’s report or its contents.
3 As in the majority’s opinion, for convenience when discussing the Departments’ regulations I will cite only those of the Department of Health and Human Services unless otherwise indicated.
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Health Res. and Servs. Admin., http://hrsa.gov/womensguidelines/ (last visited Feb. 10, 2016).
These regulations, collectively known as the “contraceptive mandate,” did not apply as enacted to several categories of employers. As is true generally of the ACA, the contraceptive mandate does not cover employers with less than fifty fulltime employees. See 26 U.S.C. § 4890H(a), (c)(2). These employers are thus under no obligation to provide any health plan at all. Similarly, employers who maintain “grandfathered health plans”—health plans that have not undergone specified changes in the way they operated before March 23, 2010, see 75 Fed. Reg. 34538, 34540–41—are specifically exempted from the contraceptive mandate. 42 U.S.C. § 18011(a), (e). Other changes instituted by the ACA do apply to grandfathered health plans, including extensions of dependent coverage for adult children under the age of twenty-six and prohibitions on excessive waiting periods, lifetime benefits limits, and rescissions of coverage. Id. § 18011(a)(4)(A)(i)–(iv). The ACA does not include a sunset provision for grandfathered health plans, which can continue their exempt status indefinitely.4
4 The Government does predict that grandfathered health plans will be phased out over time as part of a planned “transition period” designed “to avoid undue disruption.” It is ultimately an empirical question how many grandfathered plans are currently in effect and how many will persist in the future. The record developed in this case, as in so many other respects, betrays no answer.
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Conscious of the bind in which the contraceptive mandate would place
certain employers with religious objections, the Departments promulgated a series
of further regulations to exempt these employers as well.5 What emerged from
several years of rulemaking were two distinct regimes for employers with religious
objections: one for “religious employers” and another for “eligible organizations.”
45 C.F.R. § 147.131(a), (b). “Religious employers” are defined, by reference to
the Internal Revenue Code, as “churches, their integrated auxiliaries, and
conventions or associations of churches” and any “nonprofit entit[ies]” engaged in
“the exclusively religious activities of any religious order.” Id. § 147.131(a); 26
U.S.C. § 6033(a)(3)(A)(i), (iii).6 Employers who object to the contraceptive
mandate but are not considered “religious employers” can still qualify as “eligible
organizations” if they meet the following requirements:
(1) The organization opposes providing coverage for some or all of any contraceptive items or services required to be covered under § 147.130(a)(1)(iv) on account of religious objections.
5 The development of the current iteration of the contraceptive mandate—which has changed multiple times since these suits was first brought, though not in ways that materially alter the RFRA inquiry—has been largely defined by how to treat religiously objecting employers, inspiring hundreds of thousands of comments from interested stakeholders. See 75 Fed. Reg. 41726, 41726–56 (July 19, 2010); 77 Fed. Reg. 8725, 8725–29 (Feb. 15, 2012); 77 Fed. Reg. 16501, 16501–08 (Mar. 21, 2012); 78 Fed. Reg. 8456, 8456–72 (Feb. 6, 2013); 78 Fed. Reg. 39870, 39870–92 (July 2, 2013); 79 Fed. Reg. 51092, 51092–98 (Aug. 27, 2014); 79 Fed. Reg. 51118, 51118–25 (Aug. 27, 2014); 80 Fed. Reg. 41318, 41318–41 (July 14, 2015).
6 As the term “church” is hardly self-defining, the IRS uses a fourteen-factor test to determine which organizations make the cut. See Internal Revenue Serv., Pub. 1828: Tax Guide for Churches & Religious Organizations 33 (2015), available at https://www.irs.gov/pub/irspdf/p1828.pdf.
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(2) (i) The organization is organized and operates as a nonprofit entity and holds itself out as a religious organization; or
(ii) The organization is organized and operates as a closely held for-profit entity … that … objects to covering some or all of the contraceptive services on account of the owners’ sincerely held religious beliefs.
(3) The organization must self-certify in the form and manner specified by the Secretary of Labor or provide notice to the Secretary of Health and Human Services as described [elsewhere in the regulations]…
45 C.F.R. § 147.131.7
7 The current version of § 147.131 took effect on September 14, 2015. In response to the Supreme Court’s decisions in Burwell v. Hobby Lobby Stores, Inc., 573 U.S. __, 134 S. Ct. 2751, 189 L. Ed. 2d 675 (2014) and Wheaton College v. Burwell, 573 U.S. __, 134 S. Ct. 2806, 189 L. Ed. 2d 856 (2014), § 147.131 now extends to cover qualifying “closely held for-profit entit[ies]” in addition to religious nonprofits, and expands the available methods of opting out of the contraceptive mandate. Compare 45 C.F.R. § 147.131, with 45 C.F.R. § 147.131 (effective Aug. 27, 2014 to Sept. 13, 2015), and 45 C.F.R. § 147.131 (effective Aug. 1, 2013 to Aug. 26, 2014). The relevant portion of § 147.131 now provides in full:
(b) Eligible organizations. An eligible organization is an organization that meets the criteria of paragraphs (b)(1) through (3) of this section.
(1) The organization opposes providing coverage for some or all of any contraceptive items or services required to be covered under § 147.130(a)(1)(iv) on account of religious objections.
(2) (i) The organization is organized and operates as a nonprofit entity and holds itself out as a religious organization; or
(ii) The organization is organized and operates as a closely held for-profit entity, as defined in paragraph (b)(4) of this section, and the organization's highest governing body (such as its board of directors, board of trustees, or owners, if managed directly by its owners) has adopted a resolution or similar action, under the organization's applicable rules of governance and consistent with state law, establishing that it objects to covering some or all of the contraceptive services on account of the owners' sincerely held religious beliefs.
(3) The organization must self-certify in the form and manner specified by the Secretary of Labor or provide notice to the Secretary of Health and Human Services as described in paragraph (c) of this section. The organization must make such self-certification or notice available for examination upon request by the first day of the first plan year to which the accommodation in paragraph (c) of this section applies. The self-certification or notice must be executed by a person
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Religious employers’ and eligible organizations’ bids to remove themselves from the contraceptive mandate fare differently. Religious employers are simply exempt; they are not required to participate, directly or indirectly, in providing access to contraceptive coverage to their female employees and beneficiaries, whether or not these women share their employers’ beliefs. 45 C.F.R. § 147.131(a). Eligible organizations, in contrast, are required to affirmatively opt out of providing contraceptive coverage, if they wish to do so, by complying with a further series of regulations known as “the accommodation.” Id. § 147.131(c).
How the accommodation functions turns on the eligible organization’s type of health plan. Broadly speaking, employer-sponsored health plans come in two types: insured plans and self-insured plans. Under an insured plan, the employer enters into a contract with an insurer. The insurer, in exchange for up-front premiums, becomes responsible for administering the plan and paying out claims. Under a self-insured plan, the employer remains responsible for paying its employees’ claims itself; in essence, the employer serves as its own insurer. For employers with self-insured plans, it is a common practice to contract with a thirdparty administrator—which may also be in the business of providing insured plans—to administer the self-insured plan, though the employer continues to bear
authorized to make the certification or notice on behalf of the organization, and must be maintained in a manner consistent with the record retention requirements under section 107 of ERISA.
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the cost of paying claims.8 Eligible organizations that maintain their own self-
insured plans without a third-party administrator are, like religious employers,
exempt from the contraceptive mandate altogether.
Eligible organizations may, in line with the regulations currently in force, avail themselves of the accommodation in one of two ways.9 The first option is to
send a “self-certification” form, Employee Benefits Security Administration Form
700 (“Form 700”), to the eligible organization’s insurer, if the organization has an
insured plan, or to the organization’s third-party administrator, if the organization
has a self-insured plan. 45 C.F.R. § 147.131(b)(3), (c)(1). Form 700 requires
eligible organizations to identify themselves as qualifying for the accommodation;
list the name, title, and contact information of the person authorized to make that certification; and sign and date the form.10 The second option is to send to the
Secretary of Health and Human Services less-formal notice of the eligible
organization’s intent to opt out. That notice must include “the name of the eligible
organization and the basis on which it qualifies for an accommodation,” notice of
8 For example, Eternal Word Television Network has a self-insured health plan for which Blue Cross Blue Shield of Alabama serves as third-party administrator. The Dioceses collectively maintain three self-insured health plans, for all of which Meritain Health serves as third-party administrator. Though Blue Cross Blue Shield of Alabama and Meritain Health may separately offer insured plans, they are not responsible for paying the claims of Eternal Word Television Network’s and the Dioceses’ beneficiaries.
9 In the pre–Wheaton College iteration of the contraceptive mandate, there was only one way to opt out under the accommodation: submitting Employee Benefits Security Administration Form 700 to the relevant insurer or third-party administrator. See infra n.11.
10 A copy of Form 700 is appended to the majority’s opinion.
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its objection to the contraceptive mandate “based on [the eligible organization’s] sincerely held religious beliefs,” the name and type of the eligible organization’s health plan, and the identity and contact information of the eligible organization’s insurer or third-party administrator. Id. § 147.131(c)(1)(ii).
Under the first option provided for in the accommodation, whereby Form 700 is sent directly to an eligible organization’s insurer or third-party administrator, the recipient insurer or third-party administrator becomes responsible for establishing separate contraceptive coverage for the eligible organization’s female employees and plan beneficiaries. The insurer or third-party administrator must, upon receipt of the eligible organization’s Form 700, “[e]xpressly exclude contraceptive coverage” from the eligible organization’s plan and “[p]rovide separate payments for any contraceptive services required to be covered” pursuant to the contraceptive mandate. Id. § 147.131(c)(2)(i)(A)–(B). Among other requirements, the insurer or third-party administrator must also “segregate premium revenue … from the monies used to provide payments for contraceptive services” and is forbidden from “impos[ing] any cost-sharing requirements (such as a copayment, coinsurance, or a deductible), or impos[ing] any premium, fee, or other charge, or any portion thereof, directly or indirectly, on the eligible organization, the group health plan, or plan participants or beneficiaries.” Id. § 147.131(c)(2)(ii). And the insurer or third-party administrator
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must provide to plan members and beneficiaries written notice outlining how the accommodation works and “specify[ing] that the eligible organization does not administer or fund contraceptive benefits.” See id. § 147.131(d) (proposing suggested language for this notice).
Under the second option provided for in the accommodation, whereby lessformal notice is sent instead to the Secretary of Health and Human Services, the Secretary is then tasked with alerting the eligible organization’s insurer or thirdparty administrator. The Department of Health and Human Services will “send a separate notification” to the insurer relaying that the eligible organization’s notice was received and “describing the [insurer’s or third-party administrator’s] obligations.” 45 C.F.R. § 147.131(c)(1)(ii). The insurer’s or third-party administrator’s obligations to provide separate coverage pursuant to the contraceptive mandate are identical whether it is alerted to the eligible organization’s objections directly by Form 700 or indirectly by the Government.11
11 The reason that eligible organizations are given two similar-seeming options for opting out of the contraceptive mandate stems from the Supreme Court’s decision in Wheaton College v. Burwell, 573 U.S. __, 134 S. Ct. 2806, 189 L. Ed. 2d 856 (2014). In Wheaton College, the Supreme Court enjoined enforcement of the contraceptive mandate against an eligible organization that sent written notice to the Government but objected, based on the organization’s religious beliefs, to sending Form 700 to its insurer and third-party administrator. Id. at __, 134 S. Ct. 2807. The Court did not address the situation presented here where an eligible organization objects, on religious grounds, both to completing Form 700 and to providing lessformal notice to the Secretary of Health and Human Services.
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The regulations require eligible organizations to affirmatively opt out of the contraceptive mandate because doing so enables the Government to require the eligible organizations’ insurers and third-party administrators to provide contraceptive coverage. For eligible organizations with insured plans,12 opting out under the accommodation notifies the insurers of their obligations to provide contraceptive coverage. 45 C.F.R. § 147.131(c)(2)(i). For eligible organizations with self-insured plans that contract with a third-party administrator,13 opting out of the contraceptive mandate under the accommodation makes the third-party administrator “the plan administrator” for purposes of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq., under regulations promulgated by the Department of Labor. 29 C.F.R. § 2510.3-16(b). If the eligible organization submits Form 700, that submission “shall be treated as a designation of the third party administrator as the plan administrator.” Id. If the eligible organization instead provides less-formal notice to the Secretary of Health and Human Services, “the Department of Labor, working with the Department of Health and Human Services, shall … provide notification … that such third party administrator shall be the plan administrator” under ERISA. Id. Once a thirdparty administrator becomes a “plan administrator” under ERISA, the relevant
12 Because this case does not involve eligible organizations with insured plans, I pass no judgment on the accommodation in that context.
13 As mentioned above, eligible organizations that administer their own self-insured plans are not subject to the contraceptive mandate under the regulations.
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administrative agencies gain the regulatory authority to require the third-party administrator to provide contraceptive coverage.14 Id. § 2510.3-16(c).
The Government’s regulatory authority to require third-party administrators of self-insured plans to provide contraceptive coverage is limited. A third-party administrator may always decline to “agree[] to enter into or remain in a contractual relationship with the eligible organization.”15 26 C.F.R. § 54.98152713A(b)(2). Only if it accepts the terms of the regulations does a third-party administrator incur the obligation “to provide or arrange payments for contraceptive services.” Id. § 54.9815-2713A(d). If a third-party administrator agrees to provide the contraceptive coverage, the costs it incurs to do so will be reimbursed from “Federally-facilitated Exchange” user fees, which are fees
14 Under ERISA, a third-party administrator that is neither the “plan sponsor” nor specifically designated as such can be considered the “plan administrator” only “as the Secretary [of Labor] may by regulation prescribe.” 29 U.S.C. § 1002(16)(A)(iii). The Government contends that, as currently written, the ACA’s implementing regulations also allow it to independently enforce the contraceptive mandate against third-party administrators of selfinsured plans without any further action from the eligible organization. The truth of this contention is far from certain. See ante at 44–45 & nn.30–31; Sharpe Holdings, Inc. v. U.S. Dep’t of Health and Human Servs., 801 F.3d 927, 935 n.8 (8th Cir. 2015) (collecting cases contrary to the Government’s position). In any event, I decline to pass judgment on this question because its resolution is unnecessary to decide this case.
15 If a third-party administrator declines to provide contraceptive coverage, eligible organizations with self-insured plans must select another willing third-party administrator, administer its own health plan, or become subject to the monetary penalties discussed above.
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imposed on insurers offering health plans on exchanges established by the
Government under the ACA.16 See 80 Fed. Reg. at 41328.
B.
Inextricably intertwined with these evolving regulations is a series of cases
challenging the various iterations of the contraceptive mandate under the Religious
Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et seq. RFRA provides
that the federal government17 “may substantially burden a person’s exercise of
religion” only if it does so “in furtherance of a compelling governmental interest”
and the burden it imposes is “the least restrictive means of furthering that
compelling governmental interest.” Id. § 2000bb-1(b).
In 1993, Congress enacted RFRA in response to the Supreme Court’s path-
breaking approach to the First Amendment’s Free Exercise Clause taken in
Employment Division, Department of Human Resources of Oregon v. Smith, 494
16 Specifically, the regulations contemplate “adjustments” to the third-party administrator’s own user fees, if the third-party administrator also offers health plans on a Federally-facilitated Exchange, or the user fees of another participating insurer that the thirdparty administrator contracts with to receive reimbursement. See 80 Fed. Reg. at 41328. Thirdparty administrators are to be reimbursed for the “total dollar amount of the payments for contraceptive services” and an “allowance for administrative costs and margin” of “no less than 10 percent” for the amount spent on contraceptive services. 45 C.F.R. § 156.50(d)(3)(i), (ii). The Government does not address how reimbursement will be made, if at all, should these user fees prove insufficient. Cf. King v. Burwell, 576 U.S. __, __, 135 S. Ct. 2480, 2487, 192 L. Ed. 2d 483 (2015) (noting that the ACA contemplates that each state will create its own exchange).
17 RFRA originally applied to the actions of state governments as well, but the Supreme Court held that extending RFRA’s mandate to the states exceeded Congress’s powers under § 5 of the Fourteenth Amendment. City of Boerne v. Flores, 521 U.S. 507, 117 S. Ct. 2157, 138 L. Ed. 2d 624 (1997).
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U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990) (holding that neutral laws of general applicability do not burden free exercise whether or not they are supported by a compelling interest). Congress declared that the standard of strict scrutiny RFRA imposes creates “a workable test for striking sensible balances between religious liberty and competing prior governmental interests.” 42 U.S.C. § 2000bb(a)(5). RFRA’s stated purposes included “restor[ing] the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972)” and “provid[ing] a claim or defense to persons whose religious exercise is substantially burdened by government.” Id. § 2000bb(b)(1), (2). To the extent that it imposes a least-restrictive-means requirement not present in Sherbert or Yoder, however, RFRA “provide[s] even broader protection for religious liberty than was available under those decisions.” Burwell v. Hobby Lobby Stores, Inc., 573 U.S. __, __ n.3, 134 S. Ct. 2751, 2761 n.3, 189 L. Ed. 2d 675 (2014).
Following the enactment of the ACA and the promulgation of the contraceptive mandate, a diverse set of employers brought suit to avoid providing what they viewed as objectionable contraceptive coverage.18 The Supreme Court
18 Though the bulk of this litigation has been brought under RFRA, at least one nonreligious employer has challenged the contraceptive mandate under the Fifth Amendment. See March for Life v. Burwell, No. 14-cv-1149(RJL), 2015 WL 5139099 (D.D.C. Aug. 31, 2015) (concluding that the contraceptive mandate violates equal-protection principles because it lacks a rational basis for discriminating between religious and non-religious objectors). Because this
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first encountered the contraceptive mandate in Burwell v. Hobby Lobby Stores, Inc., 573 U.S. __, 134 S. Ct. 2751, 189 L. Ed. 2d 675 (2014).19 The Court held in Hobby Lobby that enforcing the contraceptive mandate against a closely held forprofit company that had religious objections to providing contraceptive coverage would violate RFRA. Id. at __, 134 S. Ct. at 2785. The Court began by determining that, as a matter of statutory interpretation, RFRA covers certain forprofit companies because the term “person” was not limited only to natural persons. Id. at __, 134 S. Ct. at 2767–75. Moving to RFRA’s threshold inquiry, the Court “ha[d] little trouble concluding” that the contraceptive mandate imposes a substantial burden on religious exercise. Id. at __, 134 S. Ct. at 2775. The Hobby Lobby plaintiffs had an uncontested “sincere religious belief that life begins at conception” and understood that their belief would be violated if they were required to “provid[e] health insurance that covers methods of birth control” that “may result in the destruction of an embryo.” Id. By forcing them to choose between violating their deeply held convictions and “pay[ing] an enormous sum of money,” the contraceptive mandate “clearly imposes a substantial burden on those beliefs.” Id. at __, 134 S. Ct. at 2779.
case involves only employers with religious objections and is resolved by RFRA’s clear dictates, I decline to address the constitutional propriety of applying the contraceptive mandate to nonreligious objectors.
19 Justice Alito wrote the majority opinion in Hobby Lobby, joined by Chief Justice Roberts and Justices Scalia and Thomas. Justice Kennedy concurred. Justice Ginsburg dissented, joined in full by Justice Sotomayor and in relevant part by Justices Breyer and Kagan.
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The Court specifically and emphatically rejected any argument that the participation of religious objectors, by paying for contraceptive coverage, is “simply too attenuated” from the objectionable outcome, the destruction of embryos, to constitute a burden on religious exercise. Id. at __, 134 S. Ct. at 2777. Such an argument, which “implicates a difficult and important question of religion and moral philosophy,” would “in effect tell the plaintiffs that their beliefs are flawed”—and defining the scope of religious belief is a dangerous line-drawing inquiry “federal courts have no business addressing.” See id. at __, 134 S. Ct. at 2778 (“Instead, our ‘narrow function … in this context is to determine’ whether the line drawn reflects ‘an honest conviction’” (quoting Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 716, 101 S. Ct. 1425, 1431, 67 L. Ed. 2d 624 (1981))). Moreover, the Court noted, if the contraceptive mandate’s burden were not substantial, it would “be hard to understand” and “not easy to square” with the exemptions carved out for qualifying “religious employers” facing “exactly the same” burden. Id. at __ n.33, 134 S. Ct. at 2777 n.33.
The Court next declined to address whether the contraceptive mandate furthered a compelling interest because, even if it did, the contraceptive mandate was not the least restrictive means of doing so. Id. at __, 134 S. Ct. at 2779–80. The Court identified several less-restrictive alternatives that the Government could have used to achieve the assumed compelling interest, holding that the
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contraceptive mandate foundered under RFRA’s “exceptionally demanding”
standard. Id. at __, 134 S. Ct. at 2780. The “most straightforward” alternative
“would be for the Government to assume the cost” of contraceptive coverage. Id.
at __, 134 S. Ct. at 2780. In response to the Government’s contrary position, the
Court observed that “it is hard to understand [the] argument that [the Government]
cannot be required under RFRA to pay anything” for “a Government interest of the highest order.” Id. at __, 134 S. Ct. at 2781.20 The Court also strongly suggested
that the Government’s direct provision of contraceptive coverage would still be a
less-restrictive alternative if the Government were required to create “an entirely
new program” rather than “modif[y] an existing program (which RFRA surely
allows).” Id.
In its analysis the Court decided it “need not rely on the option of a new,
government-funded program” to identify a less-restrictive alternative because the
regulations already provided one: the then-existing version of the accommodation
for employers with religious objections. Id. at __, 134 S. Ct. at 2781–82. The for-
20 Requiring the Government to, at times, spend additional monies to avoid imposing substantial burdens on the free exercise of religious objectors would accord with RFRA’s sister statute, the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc, 2000cc-1. See id. § 2000cc-3(c) (“[T]his chapter may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.”). Congress enacted RLUIPA pursuant to the Spending and Commerce Clauses after the Supreme Court in City of Boerne held that RFRA could not be applied to the actions of state governments under § 5 of the Fourteenth Amendment. See supra note 17. The standard of RLUIPA mirrors that of RFRA and applies in two contexts: land-use regulation and the religious exercise of institutionalized persons.
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profit Hobby Lobby plaintiffs did not object to the accommodation itself, so granting them the option for a third party to provide their female employees’ contraceptive coverage “serves [the Government’s] stated interests equally well.” Id. at __, 134 S. Ct. at 2781–82. Though derided as “‘noncommittal’” by the dissent for doing so, the Court expressly declined to rule on “whether an approach of this type complies with RFRA for purposes of all religious claims.” Id. at __ & n.40, 134 S. Ct. at 2782 & n.40.
Three days after it decided Hobby Lobby, the Supreme Court again ruled on the contraceptive mandate in Wheaton College v. Burwell, 573 U.S. __, 134 S. Ct. 2806, 189 L. Ed. 2d 856 (2014).21 In Wheaton College, the Court issued an order enjoining the Secretary of Health and Human Services, “pending final disposition of appellate review,” from enforcing the contraceptive mandate against an employer that submits “in writing that it is a non-profit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services.” Id. at __, 134 S. Ct. at 2807. The parties disputed whether the obligation to provide contraceptive coverage was “dependent” on submitting Form 700 to an insurer or third-party administrator. Id. The Court concluded in its two-page order that, because notice had already been given to the Government, the
21 Chief Justice Roberts and Justices Alito, Thomas, Kennedy, and Breyer joined the Court’s decision in Wheaton College. Justice Scalia concurred without issuing a separate opinion. Justice Sotomayor dissented, joined by Justices Ginsburg and Kagan.
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Government “relying on this notice” could “facilitate the provision of full contraceptive coverage under the [ACA].” Id. The Court ended its order by noting that it “should not be construed as an expression of the Court’s views on the merits.” Id.
After Hobby Lobby and Wheaton College, the federal courts were inundated with cases posing the question presented here: whether RFRA provides relief to employers with religious objections to the accommodation itself. Our sister circuits are deeply divided. Like the majority, most circuits have concluded that, though RFRA requires deference to adherents’ sincerely held religious beliefs, “an objective inquiry” to determine whether a law presents a substantial burden reveals that the accommodation does not impose a substantial burden on religious exercise.22 Ante at 33–41; see also Catholic Health Care Sys. v. Burwell, 796 F.3d 207, 216–18 (2d Cir. 2015); Geneva Coll. v. Sec’y U.S. Dep’t of Health and Human Servs., 778 F.3d 422, 435–40 (3d Cir. 2015), cert. granted sub nom. Zubik v. Burwell, 83 U.S.L.W. 3894 (U.S. Nov. 6, 2015) (No. 14-1418) and cert. granted, 84 U.S.L.W. 3096 (U.S. Nov. 6, 2015) (No. 15-191); E. Tex. Baptist Univ. v. Burwell, 793 F.3d 449, 456–58 (5th Cir. 2015), cert. granted, 84 U.S.L.W. 3050 (U.S. Nov. 6, 2015) (No. 15-35); Mich. Catholic Conference & Catholic
22 Lumping together these decisions in this manner necessarily misses some of their nuance. Again, this case is limited to eligible organizations with self-insured health plans overseen by third-party administrators that object, on religious grounds, to the accommodation.
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Family Servs. v. Burwell, Nos. 13-2723, 13-6640, 2015 WL 4979692, at *7–8 (6th Cir. Aug. 21, 2015); Grace Sch. v. Burwell, 801 F.3d 788, 803–05 (7th Cir. 2015); Univ. of Notre Dame v. Burwell, 786 F.3d 606, 614–19 (7th Cir. 2015); Little Sisters of the Poor Home for the Aged v. Burwell, 794 F.3d 1151, 1176–77 (10th Cir. 2015), cert. granted sub nom. S. Nazarene Univ. v. Burwell, 84 U.S.L.W. 3061 (U.S. Nov. 6, 2015) (No. 15-119) and cert. granted, 84 U.S.L.W. 3056 (U.S. Nov. 6, 2015) (No. 15-105); Priests for Life v. U.S. Dep’t of Health and Human Servs., 772 F.3d 229, 246–49 (D.C. Cir. 2014), cert. granted sub nom. Roman Catholic Archbishop v. Burwell, 83 U.S.L.W. 3936 (U.S. Nov. 6, 2015) (No. 14-1505) and cert. granted, 83 U.S.L.W. 3918 (U.S. Nov. 6, 2015) (No. 14-1453). The Eighth Circuit and a number of dissenting judges have concluded otherwise, determining that the accommodation substantially burdens religious exercise. See Sharpe Holdings, Inc. v. U.S. Dep’t of Health and Human Servs., 801 F.3d 927, 941–43 (8th Cir. 2015), cert. granted, 84 U.S.LW. 3350 (U.S. Dec. 15, 2015 ) (No. 15775); E. Tex. Baptist Univ. v. Burwell, Nos. 14-20112, 14-10241, 14-40212, 2015 WL 5773560, at *2–3 (5th Cir. Sept. 30, 2015) (Jones, J., dissenting from denial of rehearing en banc); Grace Sch., 801 F.3d at 810–15 (Manion, J., dissenting); Univ. of Notre Dame, 786 F.3d at 627–29 (Flaum, J., dissenting); Little Sisters of the Poor, 794 F.3d at 1208–10 (Baldock, J., dissenting in part); Little Sisters of the Poor Home for the Aged v. Burwell, 799 F.3d 1315, 1316–18 (10th Cir. 2015)
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(Hartz, J., dissenting from denial of rehearing en banc); Eternal Word Television Network, Inc. v. Sec’y, U.S. Dep’t of Health and Human Servs., 756 F.3d 1339, 1344–48 (11th Cir. 2014) (William Pryor, J., specially concurring in order granting injunction pending appeal); Priests for Life v. U.S. Dep’t of Health and Human Servs., Nos. 13-5368, 13-5371, 14-5021, 2015 WL 5692512, at *6–8 (D.C. Cir. May 20, 2015) (Brown, J., dissenting from denial of rehearing en banc); Priests for Life, 2015 WL 5692512, at *14–17 (Kavanaugh, J., dissenting from denial of rehearing en banc).
C. To summarize, when Congress enacted the ACA it ceded broad authority to three Executive-branch administrative agencies to promulgate rules governing the availability of women’s preventive health services in employer-sponsored health plans. The agencies ultimately determined that the Government had a compelling interest in providing women with cost-free access to a wide range of contraceptive services. In accordance with that determination, the agencies, through threat of large monetary penalties, mandated that certain employers must provide contraceptive coverage to their female employees. Though Congress had already exempted some types of employers—those with fewer than fifty employees and those with grandfathered health plans—the agencies decided that another group of
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employers should be exempt too: churches and church-affiliated organizations, as defined by already-existing definitions in the Internal Revenue Code.
The agencies exempted churches and church-affiliated organizations from the contraceptive mandate because the agencies understood that the contraceptive mandate would impose a substantial burden on many of these organizations’ religious exercise. As a result, churches and church-affiliated organizations may choose what contraceptive coverage, if any, will be available in their female employees’ health plans. No such exemption, however, was thought necessary for other organizations with similar religious objections, whether for-profit or nonprofit. After much public outcry and litigation, the agencies changed course. At first, the agencies began offering an exemption-like option to certain nonprofits with religious objections. In response to the Supreme Court’s decision in Hobby Lobby, the agencies extended the same to for-profit religious objectors as well.
But the exemption-like option—the accommodation—did not truly exempt qualifying employers. Rather, it required qualifying employers to affirmatively opt out of providing contraceptive coverage, shifting the obligation to provide the required contraceptive coverage to the employers’ insurer or third-party administrator. Originally, qualifying employers had to opt out by sending Form 700 to the insurer or third-party administrator responsible for the employers’ health plans, alerting the insurer or third-party administrator to its new obligations. After
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the Supreme Court’s order in Wheaton College, the agencies also made available an option of providing less-formal notice to the Secretary of Health and Human Services. Under this option, the notice is rerouted to the insurer or third-party administrator, in lieu of the employer submitting Form 700 directly.
For employers that run self-insured health plans in conjunction with a thirdparty administrator and are eligible for the accommodation, opting out of the contraceptive mandate has the effect of designating the employers’ third-party administrators as “plan administrators” under ERISA. Once so designated, the agencies can require a third-party administrator to provide contraceptive coverage. Absent any affirmative action from the employer, third-party administrators remain outside of ERISA’s reach. Likewise outside of ERISA’s reach, and thus effectively exempt from the contraceptive mandate, are employers that run selfinsured health plans without a third-party administrator.
As a result, there are four discrete options facing employers like Eternal Word Television Network and the Dioceses, which operate self-insured plans and do not meet the Internal Revenue Code’s definition for churches or churchaffiliated organizations but nonetheless have religious objections to providing contraceptive coverage. First, these employers can provide the objectionable coverage in violation of their beliefs. Second, these employers can comply with the accommodation and affirmatively opt out of the contraceptive mandate,
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shifting the obligation to provide the required coverage to their insurer or thirdparty administrator, also in violation of their beliefs. Third, these employers can drop their third-party administrators and assume the costs and responsibilities of running their own health plans. Fourth, these employers can do nothing and thereby become liable for annual fines of thousands of dollars per employee.
This case requires two determinations. First, does the regulatory scheme discussed above impose a substantial burden on the religious exercise of Eternal Word Television Network and the Dioceses, which believe that opting out under the accommodation would violate the sanctity of human life? If so, does the regulatory scheme nonetheless survive RFRA’s demanding standard of strict scrutiny? Because I conclude that the answers to these questions are yes and no, while the majority says no and yes, I dissent.
II. The threshold inquiry under RFRA requires a showing that the Government has “substantially burden[ed]” the plaintiff’s “exercise of religion.” 42 U.S.C. § 2000bb-1. First, a RFRA plaintiff must identify religious exercise that the Government is burdening. The allegedly burdened exercise “must be sincerely based on a religious belief and not some other motivation.” Holt v. Hobbs, 574
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U.S. __, __, 135 S. Ct. 853, 862, 190 L. Ed. 2d 747 (2015).23 When determining the content of a religious belief, including how and to what extent its attendant exercise may be burdened, we defer to the plaintiff’s understanding of what his faith requires of him because “[c]ourts are not arbiters of scriptural interpretation.” Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 716, 101 S. Ct. 1425, 1431, 67 L. Ed. 2d 624 (1981). So long as a religious adherent has drawn a line based on “an honest conviction,” “it is not for us to say that the line he drew was an unreasonable one.” Id. at 715–16, 101 S. Ct. at 1430–31.
Next, we must determine whether, as an objective matter, the identified burden on religious exercise is substantial. The existence of a substantial burden, which “can result from pressure that tends to force adherents to forego religious precepts or from pressure that mandates religious conduct,” turns on whether the Government’s actions coerce a religious adherent to affirmatively violate his beliefs. Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004). To be substantial, a burden must be “akin to significant pressure which directly coerces the religious adherent to conform his or her behavior accordingly” and must be more than “an inconvenience on religious exercise.” Id. For example, a zoning ordinance that forces members of an Orthodox Jewish congregation to
23 Though Hobbs involved a claim brought under RLUIPA rather than RFRA, both statutes impose the same standard for substantial burdens of religious exercise. See, e.g., Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004).
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“walk[] a few extra blocks” to attend services on the Sabbath is not a substantial burden when there is no “religious significance” as to a particular synagogue site, though “walking may be burdensome.” Id. at 1221, 1227–28. In contrast, if the Government puts a religious adherent to the “choice” of incurring a “serious” penalty or “‘engag[ing] in conduct that seriously violates [his] religious beliefs,’” then the Government “substantially burdens his religious exercise.” See Hobbs, 574 U.S. at __, 135 S. Ct. at 862 (quoting Burwell v. Hobby Lobby Stores, Inc., 573 U.S. __, __, 134 S. Ct. 2751, 2775, 189 L. Ed. 2d 675 (2014) (second alteration in the original)). And a burden is no less substantial if the burdened party “is able to engage in other forms of religious exercise,” if the exercise in question is not “compelled” by the burdened party’s religion, or if the burdened party’s belief is “idiosyncratic.” Id. at __, 135 S. Ct. 862.
Here, it is overwhelmingly clear that the contraceptive mandate imposes on Eternal Word Television Network and the Dioceses a burden that the accommodation does not alleviate. Eternal Word Television Network and the Dioceses assert a religious belief—which the Government does not contest is sincerely held—that both complying with the contraceptive mandate and opting out under the accommodation, which requires the third-party administrators of their health plans to provide contraceptive coverage, would make them complicit in violating the sanctity of human life. The Government burdens that belief by
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requiring Eternal Word Television Network and the Dioceses to affirmatively participate in its regulatory scheme.
And it is equally clear that the burden imposed is substantial. The Government puts Eternal Word Television Network and the Dioceses to the “choice” of either (1) complying with the contraceptive mandate, to which they object on religious grounds; (2) opting out under the accommodation, to which they also object on religious grounds; (3) dropping the third-party administrators of their health plans and becoming de facto insurance companies, incurring substantial costs and diverting the focus of their religiously motivated operations; or (4) incurring millions of dollars in penalties annually.24 Besides providing yet another way for the eligible organizations to violate their religious beliefs, the accommodation does nothing to change the Supreme Court’s holding in Hobby Lobby that the contraceptive mandate “clearly imposes a substantial burden on those beliefs.” 573 U.S. at __, 134 S. Ct. at 2779. Eternal Word Television Network and the Dioceses must either violate their beliefs or incur massive
24 Should it fail to comply with the contraceptive mandate, Eternal Word Television Network would face annual penalties of up to $12,775,000 for its 350 full-time employees. See Eternal Word Television Network, Inc. v. Sec’y, U.S. Dep’t of Health and Human Servs., 756 F.3d 1339, 1341–42 (11th Cir. 2014) (William Pryor, J., specially concurring in order granting injunction pending appeal). The Dioceses’ three health plans are collectively responsible for almost 2,000 employees and would be subject to roughly $73,000,000 per year. See Roman Catholic Archdiocese of Atlanta v. Sebelius, No. 1:12-cv-03489-WSD, 2014 WL 1256373, at *2 (N.D. Ga. Mar. 26, 2014); 26 U.S.C. § 4890D(b)(1).
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monetary costs. On its face, such a “choice” is not a choice at all. Rather, it is a substantial burden on religious exercise.
As I understand it, this straightforward application of RFRA’s substantialburden test should end the matter. The majority thinks otherwise, reaching the wrong conclusion for two reasons. First, the majority fails to give proper deference to Eternal Word Television Network and the Dioceses’ sincerely held religious beliefs. Second, the majority mischaracterizes how the contraceptive mandate works by understating the critical role that the accommodation forces employers to play in providing contraceptive coverage.
Before explaining why the majority fails to give RFRA its proper meaning, it is helpful to clarify how our understandings of RFRA’s inquiry differ. Exactly where we differ is highlighted below:
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THE MAJORITY’S VIEW OF RFRA Step 1: Does the plaintiff hold a sincere religious belief?
—Objective determination

THE CORRECT VIEW OF RFRA Step 1: Does the plaintiff hold a sincere religious belief?
—Objective determination

What are the contents of that belief? —Deference to the plaintiff
Step 2: Do the Government’s actions substantially burden the plaintiff’s religious exercise?
—Objective determination

What are the contents of that belief? —Deference to the plaintiff
Step 2(a): Do the Government’s actions burden the plaintiff’s religious exercise?
—Deference to the plaintiff Step 2(b): If so, is that burden substantial?

Step 3: Is the Government acting to further a compelling interest?

—Objective determination Step 3: Is the Government acting to further a compelling interest?

—Objective determination Step 4: Is the Government’s chosen means the least-restrictive alternative of achieving that compelling interest?

—Objective determination Step 4: Is the Government’s chosen means the least-restrictive alternative of achieving that compelling interest?

—Objective determination

—Objective determination

A. First, the majority fails to give the proper deference due Eternal Word Television Network and the Dioceses’ sincerely held belief that it would violate the sanctity of human life to comply with the Government’s regulatory scheme, either directly through the contraceptive mandate or indirectly through the accommodation. Though the majority purports to defer to these beliefs, its deference is largely illusory. The majority begins by correctly observing that
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RFRA’s substantial-burden inquiry “involves both subjective and objective dimensions.” Ante at 34. The majority continues on, also correctly, to observe that “courts must accept a religious adherent’s assertion that his religious beliefs require him to take or abstain from taking a specified action.” Id. The majority falters, however, when it concludes that “it is for the courts to determine objectively . . . whether the government has, in fact, put plaintiffs to the choice of violating their religious beliefs . . . or incurring a substantial penalty.” Id. at 36– 37.
Contrary to the majority’s position, RFRA does require deference to religious adherents’ determinations that their sincerely held beliefs are being burdened. “The narrow function of a reviewing court in this context” prevents unnecessary and improper judicial intrusion into highly sensitive matters of moral philosophy or theology, Thomas, 450 U.S. at 716, 101 S. Ct. at 1431, and this understanding of the substantial-burden standard is confirmed by the Supreme Court’s most recent religious-accommodation decisions. See Hobbs, 574 U.S. at __, 135 S. Ct. at 861–63 (granting an exemption to a prison’s grooming policy for a Muslim inmate’s proposed “‘compromise’” that he be allowed to grow a halfinch-long beard); Hobby Lobby, 573 U.S. at __, 134 S. Ct. at 2775–79 (rejecting the argument that “the connection between” providing contraceptive coverage and
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the “destruction of an embryo[] is simply too attenuated” because this “would in effect tell the plaintiffs their beliefs are flawed.”).
The “objective inquiry” under RFRA focuses only on whether that burden is substantial. For example, courts must defer to a religious adherent’s belief, if it is sincerely held, that dancing is morally wrong.25 And courts must defer to the religious adherent’s understanding that this belief would be burdened if she were required to look upon, even if only for a moment, a single masquerade ball or sock hop. What courts must determine as an objective matter is whether the burden imposed by any pro-dancing Government action is a substantial one. Imposing millions of dollars in fines for failing to perform a Government-mandated jitterbug would, obviously, be a substantial burden on religious exercise. In contrast, there would be no substantial burden if the Government merely financed public dancefloors or had a hortatory policy of extolling the virtues of dance.26
If the substantial-burden test were as the majority believes it to be, federal judges would have to decide whether the burden itself substantially violated the adherent’s beliefs. That is, the majority would necessarily shift the gaze of its “objective inquiry” to the merits of religious belief. In this Bizarro World, it
25 Many faith traditions proscribe some or all forms dancing, including various denominations of Christianity, Islam, and Judaism.
26 Indeed, it appears that Congress has contemplated adopting such a measure. See H.R. Res. 667, 113th Cong. (2014) (as introduced in the House, July 11, 2014) (“Expressing support for dancing as a form of valuable exercise and artistic expression, and for the designation of July 26, 2014, as National Dance Day.”).
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would be secular courts making ex cathedra pronouncements on whether Muslims are truly put out by requirements to shave their beards, Hobbs, 574 U.S. __, 135 S. Ct. 853; Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3d Cir. 1999), whether Seventh-day Adventists are sufficiently deterred from accepting employment by requirements to work on Saturdays, Sherbert v. Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963), whether Santeria priests could just make do without ritual sacrifice or Ache-infused beads and shells, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 113 S. Ct. 2217, 124 L. Ed. 2d 472 (1993); Davila v. Gladden, 777 F.3d 1198 (11th Cir. 2015), and whether the sacramental use of peyote is really that big of a deal to members of the Native American Church, Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990). But, of course, the Constitution does not vest in the judiciary the authority to declare winners and losers in matters of faith. And for good reason.
At bottom, the majority’s reasoning takes aim at the heart of RFRA itself. Implicit in the majority’s rationale is the notion that wily plaintiffs could game the system if religious adherents’ beliefs were given the full extent of the deference demanded by RFRA. In tailoring their stated beliefs, these plaintiffs could engage in strategic litigation unhampered, impairing the government’s ability to function efficiently. By expanding the limited scope of the objective portion of the
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substantial-burden inquiry, the majority expressly seeks to avoid “reducing the . . . federal courts to ‘rubber stamps.’” Ante at 37. Here, despite conceding as the majority must that “the act of opting out plays [some] causal role in the ultimate provision of contraceptive coverage,” the majority runs roughshod over the sincerely held religious objections of Eternal Word Television Network and the Dioceses because, in line with the majority’s sense of things, the “de minimis burden that the plaintiffs face” resulting from their role as “an incidental cause of contraceptive coverage being provided” does not constitute a substantial burden. Id. at 44-45, 47. The majority through a nifty bit of legalistic legerdemain manages to transform the subjective content of religious adherents’ sincerely held beliefs into an objective question of federal law, undercutting the very deference to religious exercise it purports to extend.
The majority’s not-so-veiled implication that, if given its full effect, RFRA will be refashioned from a shield protecting the faithful into a sword wielded by cynical opportunists is troubling and at odds with RFRA’s fundamental respect for the deeply held convictions that guide the daily lives of hundreds of millions of Americans. As an initial matter, whether or not a belief is sincerely held remains an important part of RFRA’s substantial-burden inquiry. Courts are not, for example, compelled to entertain challenges from such obvious farces as a
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hypothetical “Church of Marijuana and Pepperoni Pizza”27 or the satirical “Our Lady of Perpetual Exemption.”28 Separating the faithful sheep from the cynically opportunistic goats is well within our judicial capabilities.
Moreover, to the extent that granting exemptions for religious adherents would impair the government’s ability to run programs and administer law efficiently, this is a feature of RFRA, not a bug. Congress made the clear policy choice that protecting the individual right of free religious exercise outweighed the costs imposed at the expense of administrative efficiency. And this choice—to preserve individual freedom by fettering the Government’s ability to act as expeditiously as possible—is at the core of our foundational notion of limited government. Permitting demonstrations in public parks, requiring police officers to secure a warrant before searching homes or seizing persons, and committing the Government to provide just compensation if it wishes to take private property all surely hamper the Government’s ability to pursue countless other important ends. These tradeoffs are the cost of liberty. And how best to balance these enhanced
27 Of course, people can and do sincerely believe that marijuana consumption serves a sacramental purpose. See, e.g., Olsen v. Drug Enf’t Admin., 878 F.2d 1458 (D.C. Cir. 1989).
28 See God bless John Oliver: late-night comedian forms his own church, The Guardian (Aug. 17, 2015), http://www.theguardian.com/tv-and-radio/2015/aug/17/john-oliver-last-weektonight-mega-church.
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protections against their added costs is exactly the sort of thorny policy decision best left to democratically responsive legislators, not unelected judges.29
The majority is hardly alone in its implicit rejection of RFRA’s core purpose. Striking the proper balance between the collective needs of society and the individual freedom of religious exercise has been fraught with rancor and sectarian strife since time immemorial. Unsurprisingly then, the oft-embattled RFRA has proven a favorite whipping boy from all sides of the legal academy during its twenty-three-year existence. See, e.g., Douglas NeJaime & Reva B. Siegel, Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics, 124 Yale L.J. 2516 (2015); Mary Anne Case, Why “Live-And-Let-Live” is not a Viable Solution to the Difficult Problems of Religious Accommodation in the Age of Sexual Civil Rights, 88 S. Cal. L. Rev. 463 (2015); Douglas Laycock, Religious Liberty and the Culture Wars, 2014 U. Ill. L. Rev. 839; William P. Marshall, Bad Statutes Make Bad Law: Burwell v Hobby Lobby, 2014 Sup. Ct. Rev. 71; Michael Stokes Paulsen, A RFRA Runs Through It: Religious Freedom and the U.S. Code, 56 Mont. L. Rev. 249 (1995).
29 “[T]hat one legislature cannot abridge the powers of a succeeding legislature” and, thus, “one legislature is competent to repeal any act which a former legislature was competent to pass” is a foundational principle that “can never be controverted.” Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 135, 3 L. Ed. 162 (1810). RFRA’s protections are statutory, not mandated by the Constitution. Should it wish to do so, Congress remains free to alter the scrutiny to be applied to any particular law challenged under RFRA or to repeal RFRA altogether.
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Judicial declarations that the sky will fall if exemptions were granted to
religious objectors in a pluralistic society as diverse and vibrant as the United
States are old hat as well. Consider the following statement of Chief Justice
Morrison Waite, written almost one hundred and fifty years ago:
Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. … Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.
Reynolds v. United States, 98 U.S. 145, 166–67, 25 L. Ed. 244 (1878). After more
than a century of wrestling with the First Amendment’s Free Exercise Clause, the
Supreme Court brought constitutional religious-accommodation doctrine full circle
in Smith, upholding without accommodation neutral laws of general applicability.
Writing for the majority, Justice Scalia echoed Chief Justice Waite’s sentiment:
If the “compelling interest” test is to be applied at all, then, it must be applied across the board, to all actions thought to be religiously commanded. Moreover, if “compelling interests” really means what it says (and watering it down here would subvert its rigor in the other fields where it is applied), many laws will not meet the test. Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society’s diversity of religious beliefs, and its determination to coerce or suppress none of them.
Smith, 494 U.S. at 888, 110 S. Ct. at 1605 (emphasis added). It is hard to fathom a
plainer statement of the risks of reinstituting a policy of religious accommodation.
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Yet it was against this very backdrop that Congress enacted RFRA in 1993. And Congress specifically declared that by adopting the demands of strict scrutiny it intended to depart from the less-protective constitutional standard announced in Smith. See 42 U.S.C. § 2000bb(4). To the extent that the standard RFRA imposes raises policy concerns, criticisms on this front are best addressed to Congress, and may find appropriate shelter in the pages of law reviews. But as federal judges we are duty-bound to follow and apply the laws Congress actually enacted, not as we might wish them to be. “The wisdom of Congress’s judgment on this matter is not our concern. Our responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes,” Hobby Lobby, 573 U.S. at __, 134 S. Ct. at 2785, the accommodation, no less than the contraceptive mandate itself, imposes a substantial burden on religious exercise.
B. Second, the majority fails to appreciate the crucial role in providing religiously objectionable contraceptive coverage that the accommodation foists on eligible organizations. The majority believes that the accommodation places no burden on the beliefs of Eternal Word Television Network and the Dioceses because the “significance they attribute to this act [of opting out]” is misguided, and thus the outcome of this case is not controlled by the otherwise-identical analysis in Hobby Lobby. See ante at 42. According to the majority, “[t]he ACA
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and HRSA guidelines” are what “entitle women who are plan participants and beneficiaries covered by group health insurance plans to contraceptive coverage without cost sharing”—“not the opt out.” See id. at 43–44 . This is so even though the majority “acknowledge[s] that an eligible organization’s act of [opting out] results in the TPA’s designation as the plan administrator” under ERISA and “may be an incidental cause of contraceptive coverage being provided.” Id. at 44–45. Boiled down to its bare essentials, the majority’s position is that if the parties really understood what is going on, they would have no basis to object to their role in the contraceptive mandate’s regulatory scheme.
It is the majority, however, that misunderstands the contraceptive mandate. Under its regulatory scheme, as bounded by the statutory requirements of the ACA and ERISA,30 the Government becomes empowered to require contraceptive coverage for an eligible organization’s self-insured health plan only if that organization affirmatively opts out under the accommodation. A third-party administrator of a self-insured health plan “bears the legal obligation to provide
30 Some doubts have been raised as to the Government’s exact ability to require thirdparty administrators to comply with the contraceptive mandate within the scope of its regulatory authority. See Sharpe Holdings, Inc. v. U.S. Dep’t of Health and Human Servs., 801 F.3d 927, 941–42 (8th Cir. 2015). To the extent such doubts linger, they are of no moment here. “We need look no further than to the government’s own litigation behavior to gauge the importance of self-certification in the regulatory scheme. If [third-party administrators] had a wholly independent obligation to provide contraceptive coverage to religious objectors’ employees and plan beneficiaries, there would be no need to insist on … compliance with the accommodation process.” Id. at 942.
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contraceptive coverage only upon receipt of a valid self-certification.”31 Wheaton College v. Burwell, 573 U.S. __, __ n.6, 134 S. Ct. 2806, 2814 n.6, 189 L. Ed. 2d 856 (2014) (Sotomayor, J., dissenting) (emphasis added). The majority is incorrect, then, to say that the contraceptive mandate “does not turn on whether [an] eligible organization employer chooses to comply with the law.” See ante at 44. Federal law kicks in only after an eligible organization acts; should an eligible organization decline to do anything, the Government lacks an independent means to ensure the provision of contraceptive coverage. Because the regulations condition the provision of contraceptive coverage on eligible organizations’ affirmative participation, their participation is the linchpin on which the contraceptive mandate rests.
To draw an analogy with which any first-year law student should be well acquainted, an eligible organization’s opting out under the accommodation is both an actual and proximate cause of the provision of contraceptive coverage. There can be no doubt that opting out under the accommodation is a “cause in fact” of providing contraceptive coverage. But for opting out, the Government would lack the requisite regulatory authority over the third-party administrators of the organizations’ health plans. Cf. Stacy v. Knickerbocker Ice Co., 54 N.W. 1091
31 Under the regulations currently in force, a valid self-certification is either Form 700 or the alternative notice sent to the Secretary of Health and Human Services. 45 C.F.R. § 147.131(b)(3), (c).
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(Wis. 1893) (noting that without defendant’s cutting and removing of surface ice, uncontrolled horses would not have fallen through a frozen lake). The majority contests whether the act of opting out also meets some standard of “legal” or “proximate” cause. See Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 104 (N.Y. 1928) (Andrews, J., dissenting) (“What we do mean by the word ‘proximate’ is that, because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. That is not logic, it is practical politics.”). According to the majority, because federal law entails the authorization to require third-party administrators to provide contraceptive coverage, opting out is only “an incidental cause of contraceptive coverage being provided.” See ante at 44–45.
I fail to see, however, how affirmatively opting out of the contraceptive mandate under the accommodation could be deemed anything other than a “substantial factor” or “material concurring cause” directly leading to the provision of religiously objectionable coverage. Anderson v. Minneapolis, St. Paul & Sault Ste. Marie Ry. Co., 146 Minn. 430, 436–37, 439 (1920). Opting out under the accommodation sets in motion a chain of events leading to the provision of contraceptive coverage as inexorably as night follows day.32 Once an employer
32 Eternal Word Television Network and the Dioceses object only to their own, government-mandated participation under the contraceptive mandate. They do not—and indeed
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opts out, only then does the Government become authorized to regulate third-party
administrators. See Grace Sch. v. Burwell, 801 F.3d 788, 808 (7th Cir. 2015)
(Manion, J., dissenting) (describing “the accommodation’s tangled mess” as “the
long and winding extension cord the government uses to power its contraceptive
mandate”). So authorized, there can be no doubt that the Government will in turn
flex its newfound regulatory muscle to require the provision of contraceptive
coverage.
cannot—seek “to require the Government itself to behave” in accordance with their beliefs. See Bowen v. Roy, 476 U.S. 693, 696–700, 106 S. Ct. 2147, 2150–52, 90 L. Ed. 2d 735 (1986) (denying relief to Abenaki man objecting on religious grounds to the Government’s “‘use’” of his daughter’s already-issued Social Security number). The majority’s reliance on Bowen and its ilk is, therefore, inapposite.
Likewise inapposite is the Majority’s analogizing the accommodation to the process used by conscientious objectors to opt of a military draft. See ante at 46. As Judge Manion puts it in his thorough debunking of this familiar trope,
This is not like the case of a conscientious objector who objects and the government finds a replacement. Under the regulations, the government does not find the replacement, the nonprofit does. The designation does not take place unless the nonprofit either delivers the self-certification form to its insurer or TPA, or uses the alternative notice to inform the government who its insurer or TPA is and which health plan is at issue. By insisting that the nonprofit deliver the form or supply the plan information for the government's use, the government uses the objecting nonprofit to do its dirty work. The government has not provided an exit—it offers a revolving door with only one opening. . . . This is not the case of a conscientious objector walking into the draft board, voicing his objection, being excused, and walking out. For the analogy to fit the HHS accommodation, the draft board must decide that every objector will be replaced by the objector’s friend, and the objector’s objection is only effective if the objector delivers written notice of his objection to his friend or tells the draft board who his friend is and where the board can find him. Then, the objector must send his friend money so that his friend will remain his friend for the purpose of being his replacement. Grace Sch. v. Burwell, 801 F.3d 788, 812 & n.11 (7th Cir. 2015) (Manion, J., dissenting).
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This clear and uninterrupted causal chain holds whether an employer sends Form 700 directly to its third-party administrator or submits less-formal notice indirectly to the Secretary of Health and Human Services, just as a pilot reaches his destination as certainly flying direct as with a layover. An employer connecting these dots would hardly need the insight of Henry Friendly to conclude that its actions caused, in a direct and material fashion, the religiously objectionable outcome. “After all, if the form were meaningless, why would the Government require it?” Priests for Life v. U.S. Dep’t of Health and Human Servs., Nos. 135368, 13-5371, 14-5021, 2015 WL 5692512, at *17 (D.C. Cir. May 20, 2015) (Kavanaugh, J., dissenting from denial of rehearing en banc)
But this analogy can be stretched only so far. Common-law principles of causation, however fundamental to our legal heritage, are simply too unreliable a light to guide RFRA’s substantial-burden analysis.33 Reading into RFRA some sort of proximate-cause limitation would reintroduce the exact same “attenuat[ion]” argument rejected by the Supreme Court in Hobby Lobby for “dodg[ing] the question that RFRA presents.” 573 U.S. at __, 134 S. Ct. at 2777– 78. To do so would be an illegitimate foray into the realm of personal faith, and
33 “There is perhaps nothing in the entire field of law which has called forth more disagreement, or upon which the opinions are in such a welter of confusion [as defining ‘proximate cause’]. Nor, despite the manifold attempts which have been made to clarify the subject, is there yet any general agreement as to the best approach.” W. Page Keeton, Dan B. Dobbs, Robert E. Keeton & David G. Owen, Prosser and Keeton on Torts § 41 at 263 (5th ed. 1984).
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federal courts are “singularly ill equipped” to parse the moral reasoning and theological conclusions of religious believers, especially in light of secular judges’ unspecified and almost certainly inconsistent determinations of legal causation. Thomas, 450 U.S. at 715, 101 S. Ct. at 1431. No matter how elaborate the Rube Goldberg machine the Government manages to jerry-rig, it is simply not our place to decide for Eternal Word Television Network and the Dioceses their degree of complicity when forced to topple the initial domino.
Accordingly, for eligible organizations that object to opting out under the accommodation, the contraceptive mandate burdens their religious exercise to the same impermissible extent as the plaintiffs’ in Hobby Lobby.
III. Concluding that the contraceptive mandate substantially burdens Eternal Word Television Network’s and the Dioceses’ religious exercise does not end the matter. The Government can still prevail if it is able to show that the contraceptive mandate is “in furtherance of a compelling governmental interest” and the accommodation is “the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(b). The Government fails to make this showing. For purposes of this opinion, I assume that the accommodation serves “a legitimate and compelling interest in the
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health of female employees.”34 See Burwell v. Hobby Lobby Stores, Inc., 573 U.S. __, __, 134 S. Ct. 2751, 2786, 189 L. Ed. 2d 675 (2014) (Kennedy, J., concurring). There is no need to reach the merits of this assumed compelling interest, whatever its exact nature, because the accommodation is not the least-restrictive means capable of achieving any government interest that could conceivably be called compelling. Accord id. at __, 134 S. Ct. at 2779–80 (Alito, J.).
IV. If the notion that the accommodation does not substantially burden religious exercise is “[r]ubbish,” Eternal Word Television Network, Inc. v. Sec’y, U.S. Dep’t of Health and Human Servs., 756 F.3d 1339, 1347 (11th Cir. 2014) (William Pryor, J., concurring), then the majority’s further notion that the contraceptive mandate passes RFRA’s “exceptionally demanding” scrutiny is rubbish on stilts. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. __, __, 134 S. Ct. 2751, 2780, 189 L. Ed. 2d 675 (2014). In codifying the familiar language of strict scrutiny—the “most demanding test known to constitutional law,” City of Boerne v. Flores, 521 U.S. 507, 534, 117 S. Ct. 2157, 2171, 138 L. Ed. 2d 624 (1997)—Congress erected
34 I pause to note my skepticism of the Government’s proposed gloss on the compelling interest allegedly served by the contraceptive mandate. Providing “seamless” contraceptive coverage—that is, providing coverage without cost sharing or additional administrative hurdles—and identifying organizations that opt out of the contraceptive mandate appear to me to be derivative considerations of feasibility and administrative convenience rather than compelling interests in their own right. As such, these considerations are better left to the least-restrictivemeans prong of the RFRA inquiry.
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RFRA as a mighty bulwark, entrenching against Government incursion the freedom of religious liberty throughout the United States Code. To surmount these protections, the Government has the burden of “show[ing] that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting parties.” Hobby Lobby, 573 U.S. at __, 134 S. Ct. at 2780. Carrying this burden is no mean feat. “If a less restrictive means is available for the Government to achieve its goals, the Government must use it.” Holt v. Hobbs, 574 U.S. __, __, 135 S. Ct. 853, 864, 190 L. Ed. 2d 747 (2015) (quoting United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 815, 120 S. Ct. 1878, 1887, 146 L. Ed. 2d 865 (2000)) (alteration omitted).
So, is there a less-restrictive alternative of ensuring that the female employees of employers with religious objections to the contraceptive mandate nonetheless continue to receive cost-free access to the challenged services? Of course there is. As the Hobby Lobby majority observed: “The most straightforward way of doing this would be for the Government to assume the cost of providing” the objectionable contraceptive coverage. 573 U.S. at __, 134 S. Ct. at 2780. Though the Court did not ultimately need to reach the question of whether direct Government provision of contraceptive coverage would constitute a less-restrictive alternative because the plaintiffs did not object to the accommodation, id. at __, 1354 S. Ct. at 2780–82, we must do so here. And I fail
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to see any reason why the Court’s persuasive reasoning should not be adopted. The Government has not shown, as it must, that it would be able to provide the same access to contraceptive coverage to the same women only if it can force eligible organizations to violate their sincerely held religious beliefs.
Speaking bluntly, RFRA makes the Government put its money where its mouth is. I see nothing in RFRA’s text or the subsequent case law that would allow the Government to claim a compelling interest without having to spend a single red cent to do anything about it. Significant here, the Government must necessarily agree that RFRA compels it to fund contraceptive coverage otherwise the accommodation would not exist at all. Indeed, the entire purpose of the accommodation is to make the provision of contraceptive coverage independent of the eligible organization, including segregating all the costs paid by the eligible organization from all the expenditures for the objectionable services. Aware of the fallacy of free-lunch thinking and absent any expectation of third-party administrators acting out of purely eleemosynary impulse, the Government committed itself to funding contraceptive coverage for certain religious objectors,35 albeit in roundabout fashion.
35 Notably, the Government did not similarly commit itself to fund contraceptive coverage for female employees of other employers with religious objections—either churches and church-affiliated organizations or eligible organizations that maintain self-insured health plans but do not use a third-party administrator. Nor did the Government commit itself to fund
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To be clear, the Government is already committed to fund the contraceptive
mandate under the current regulations. The Government reimburses third-party
administrators required to fund contraceptive coverage through a reduction in
Federally-facilitated Exchange user fees, the amount of money paid to be able to
offer insurance products on exchanges established by the Government under the
ACA.36 Money is fungible; the Government finds itself in the same financial
position whether it declines to collect a tax liability of $500 or whether it collects
the $500 and then immediately refunds the same. By forgoing revenue to fund the
contraceptive coverage for the female employees of eligible organizations that opt
out under the accommodation, the Government is effectively paying for the
objectionable coverage. And in contrast to the half-measure of the
accommodation—which covers only a limited set of religiously objecting
employers and does not provide access to the female employees of churches and
church-affiliated organizations, employers with grandfathered health plans, or
contraceptive coverage for female employees of employers with grandfathered plans or employers with fewer than fifty full-time employees.
Though there may be some level of backstop coverage provided by the other provisions of the ACA and Title X, see infra n.36, the Government’s failure to extend its largesse to these women may also call into question the contraceptive mandate’s asserted compelling interest— which, again, I assume the Government would be able to show—but certainly raises an obvious question: If the Government is able and willing to pay for some women to receive access to contraceptive coverage, why would it not be a less-restrictive means to do so in a more straightforward manner for all women at risk of being denied such access?
36 As discussed above, third-party administrators may either reduce their own Federallyfacilitated Exchange user fees if they are also in the business of selling insurance or they may enter into a contractual arrangement with another insurer to recoup that insurer’s user fees. See 80 Fed. Reg. at 41328.
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employers with fewer than fifty full-time employees37—providing for contraceptive coverage directly without the accommodation’s administrative rigmarole would allow the Government to offer cost-free access to each and every woman in the United States should it choose to do so. And the Government has failed to shoulder its burden to show that it would be unable to grant women access to contraceptive coverage without the coerced involvement of Eternal Word Television Network and the Dioceses.
Again, this straightforward application of well-established legal principles should carry the day. But, again, the majority thinks otherwise. Specifically, the majority concludes that the current iteration of the contraceptive mandate has finally hit upon the least restrictive means of achieving the Government’s compelling interest when “the cost to the government” and “the burden the alternatives impose on the affected women” are taken into account. See ante at 63. Though I do not dispute that these concerns are relevant to the least-restrictive-
37 For female employees whose health plans are not subject to the contraceptive mandate, the Government has stitched together a patchwork safety net under Title X and other provisions of the ACA. The record does not reveal how many women who would otherwise lack access to contraceptive services are eligible for coverage under this makeshift framework. Nor does the record reveal whether there are hundreds, thousands, or millions of women who will continue to go without such access, with or without the accommodation. Though a less-restrictive means need not be a perfect means, strict scrutiny demands that the Government’s chosen solution must be “neither seriously underinclusive nor seriously overinclusive.” Brown v. Entm’t Merchants Ass’n, 564 U.S. __, __, 131 S. Ct. 2729, 2741–42, 180 L. Ed. 2d 708 (2011).
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means inquiry, I cannot agree with the majority that they save the contraceptive mandate from RFRA’s exceptionally demanding scrutiny.
The arguments advanced in the majority’s apology for the contraceptive mandate seem to rest largely on speculative and overblown logistical problems the Government might face if it were held responsible for furthering its asserted compelling interest. According to the majority, if the Government were forced to provide contraceptive coverage “outside the existing, largely employer-based, insurance system,” whether directly or through tax credits, “Congress would need to pass legislation that would fundamentally change how the majority of Americans receive” contraceptive coverage specifically, if not healthcare generally. See id. at 66–67. Likewise, if forced to keep the current model of providing contraceptive coverage through eligible organizations’ health plans, “the government would be hamstrung” because of the “gaps” in institutional knowledge that would spring up regarding which female employees of which employers would be covered by the Government and which are not. Id. at 72. As a result, because the majority believes that adopting any of the alternatives it considers would incur various administrative and transactions costs, the result would be less access to contraceptive coverage, undermining the Government’s asserted compelling interest. See id. at 70–71, 74.
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The majority’s insistence on assuming a virtually immutable regulatory and statutory status quo is fundamentally misplaced. RFRA makes clear that it is the “Government” that “shall not substantially burden a person’s exercise of religion,” 42 U.S.C. § 2000bb-1(a) (emphasis added), not just constituent parts acting within their respective spheres of authority. In Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, for example, the Supreme Court specifically rejected the Government’s position “that the Controlled Substances Act is [not] amenable to judicially crafted exceptions [for the hallucinogen hoasca]” because of “the existence of a congressional exemption for peyote.” 546 U.S. 418, 434, 126 S. Ct. 1211, 1222, 163 L. Ed. 2d 1017 (2006). It would be absurd to say, then, that we cannot grant a judicially crafted exception here because the relevant administrative agencies lacked the regulatory authority to promulgate exceptions that would have been equally effective in achieving an allegedly compelling interest had there been congressional action allowing them to do so. In short, if the Government as a whole has a less-restrictive alternative available, the Government must use it.
The majority’s radically revisionist account of RFRA, in contrast, would limit the universe of less-restrictive means to what the Executive Branch can accomplish unilaterally by administrative fiat. This is a shocking reversal of our Constitution’s prime directive: “All legislative Powers herein granted shall be vested in a Congress of the United States.” U.S. Const. art. I, § 1. To the extent
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that the Government claims an interest of the highest order, it is only reasonable that Congress be expected to pitch in when freewheeling regulators encounter statutory roadblocks. The practical hurdles to providing the access to contraceptive coverage the Government seeks would simply disappear if Congress were to slightly tweak the contraceptive mandate’s statutory authorization under ERISA and the ACA. By having Congress eliminate the need for eligible organizations to affirmatively designate the third-party administrators of their health plans—thus becoming directly involved in the provision of the objectionable coverage—the Departments of Labor, Treasury, and Health and Human Services would no longer need to substantially burden eligible organizations by putting them to the “choice” of affirmatively violating their sincerely held beliefs or paying massive penalties. And the Government has failed to show why this could be accomplished without imposing any additional burden on female employees only if eligible organizations were required to use the accommodation.38
38 To the extent that there may be additional administrative costs incurred in crafting an appropriately tailored exception to the contraceptive mandate, RFRA contemplates such costs and places them squarely on the Government’s shoulders. Even if the Government were to require female employees of exempt employers to fill out the sort of all-too-familiar paperwork associated with receiving health insurance, such a “burden”—in contrast to being forced to either violate a sincere religious conviction or face steep monetary penalties—would be, at most, “de minimis.” Cf. Catholic Health Care Sys. v. Burwell, 796 F.3d 207, 220 (2d Cir. 2015).
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Finally, the fate of the contraceptive mandate under RFRA is complicated by the Government’s decision to condition benefits flowing to third parties on actions taken by religious objectors in violation of their beliefs. I agree that granting an exemption that would impose costs on third parties could, under certain circumstances, run afoul of the Establishment Clause of the First Amendment. See Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 334–35, 107 S. Ct. 2862, 2868, 97 L. Ed. 2d 273 (1987) (“At some point, accommodation may devolve into ‘an unlawful fostering of religion.’” (quoting Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136, 145, 107 S. Ct. 1046, 1051, 94 L. Ed. 2d 190 (1987))). But such an eventuality alone does not automatically transform the Government’s chosen means into the leastrestrictive alternative required by RFRA. As the Supreme Court reiterated in upholding the constitutionality of RLUIPA, RFRA’s sister statute, “‘there is room for play in the joints between’ the Free Exercise and Establishment Clauses, allowing the government to accommodate religion beyond free exercise requirements, without offense to the Establishment Clause.” Cutter v. Wilkinson, 544 U.S. 709, 713, 125 S. Ct. 2113, 2117, 161 L. Ed. 2d 1020 (2005) (quoting Locke v. Davey, 540 U.S. 712, 718, 124 S. Ct. 1307, 1311, 158 L. Ed. 2d 1 (2004)). Granting Eternal Word Television Network and the Dioceses an exemption from
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the contraceptive mandate falls well within the space allowed for “play in the joints,” wherever those exact boundaries may lie.
Here, the Government is essentially asking for a free pass on RFRA’s leastrestrictive-means requirement because the administrative agencies responsible for crafting the contraceptive mandate decided—for administrative convenience—to tie the provision of contraceptive coverage to eligible organizations’ affirmative participation in an elaborate regulatory scheme. If we were to honor the Government’s request, anytime regulators wanted to immunize their slapdash efforts, regardless of the potential alternatives, they need only condition a benefit to third parties on any substantial burden placed on religious exercise. Lest RFRA is understood to have ushered in the apotheosis of the administrative state, surely the rigorous standard of strict scrutiny cannot be so easily evaded.
Without a doubt, there are sundry ways for the Government to provide women with cost-free access to contraceptive coverage. The administrative agencies tasked with promulgating the regulatory structure that undergirds the contraceptive mandate chose, because of convenience and their bounded statutory authority, to do so in a manner that substantially burdens religious adherents. We have been presented insufficient evidence to hold that the goal of increasing access to contraceptive coverage could be reached only through the circuitous regulatory pathways that have been cobbled together here. The Government, therefore, has
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failed to carry its burden to show that the contraceptive mandate is the least restrictive means of furthering any assumed compelling interest.
V. The sweeping protections for religious exercise Congress contemplated when it enacted RFRA should not be denied to Eternal Word Television Network and the Dioceses. RFRA’s text and purpose, as confirmed by well-established precedent, extend these protections to religious adherents forced to choose between affirmatively participating in a regulatory scheme that they sincerely believe would make them complicit in denigrating the sanctity of human life and paying millions of dollars in noncompliance penalties. Because the Government cannot show that the latest iteration of its constantly evolving “accommodation” survives strict scrutiny, RFRA bars enforcing the contraceptive mandate against those employers whose religious exercise it substantially burdens. By concluding otherwise, the majority diminishes the full range of religious liberty that Congress sought to protect when it enacted RFRA. Recasting and enfeebling RFRA’s standard as nothing more than “good enough for government work” is a far cry from strict scrutiny’s typical charge of fiat justitia ruat caelum.39 Perhaps the majority’s desire to bring RFRA’s statutory protections for religious liberty closer in line with the less-demanding constitutional standard represents a
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superior policy judgment. Perhaps not. In any event, the majority’s application of “water[ed] down” strict scrutiny is exactly the sort of wishy-washy treatment likely to “subvert its rigors in the other fields where it applies” that motivated the Supreme Court’s Smith decision in the first place. See Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 888, 110 S. Ct. 1595, 1605, 108 L. Ed. 2d 876 (1990). But by enacting RFRA, Congress confirmed that strict scrutiny “really means what it says.” Id.; see also Hobby Lobby, 573 U.S. at __ n.3, 134 S. Ct. at 2761 n.3. Regardless of individual judges’ views of the wisdom motivating RFRA, that was Congress’s call to make.
Respectfully, I DISSENT.
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