1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

WHEATON COLLEGE, Plaintiff ,

v. KATHLEEN SEBELIUS, et al. , Defendants. Civil Action No. 12-1169 (ESH)

MEMORANUM OPINION Wheaton College, a Christian liberal arts coll ege located in Wheaton, Illinois, has sued, claiming that regulations defendants issued pursu ant to the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (Mar ch 23, 2010), violates the First Amendment, the Administrative Procedure Act, and the Religious Freedom Restoration Act. (Complaint, July 18, 2012 [Dkt. No. 1] (“Compl.”) ¶¶ 1–2, 6–8.) Th e regulations require covered employers to offer group health insurance plans that provide women with certain forms of preventive care, including all FDA-approved forms of contracepti on, without cost sharing. Wheaton argues that it cannot offer health plans that cover emergency contraceptives, namely Plan B (levonorgestrel, or the “morning-after pill”) and Ella (ulipristal, or the “week-after pill”) , consistent with its religious beliefs. Wheaton moved for a preliminary inj unction on August 1, 2012. (Motion for Preliminary Injunction, August 1, 2012 [Dkt. No. 4] (“Pl. Mot.”).) On August 10, defendants moved to dismiss pursuant to Fed. R. Civ. P. 12 (b)(1), arguing that Wheaton lacks standing and that its claims are not ripe. (Defendants’ Motion to Dismiss, A ugust 10, 2012 [Dkt. No. 17]2 (“Def. Mot.”).) Wheaton opposed defendants’ motion (August 16, 2012 [Dkt. No. 18] (“Pl. Opp’n”)), defendants filed a reply in furthe r support thereof (Augus t 20, 2012 [Dkt. No. 19] (“Def. Reply”)), and the Court h eard oral argument. (8/23 Tr.) Based on this record, the Court concludes that, in light of conc rete steps defendants are taking to address Wheaton’s concerns, including their commitment not to enforce th e challenged regulations against Wheaton while accommodations are being negotiated, Wheaton has not alleged a concrete and imminent injury and that its claims are not fit for judicial revi ew. For the reasons stat ed, the Court will grant

defendants’ motion to dismiss.

BACKGROUND This action is one of twenty-six lawsuits challenging the Affordable Care Act’s preventive services regulations with regard to their requirements involving contraception. 1 In recent decisions granting the federal defendant s’ motion to dismiss on standing and ripeness grounds in two of these cases, Judges Urbom and Bo asberg described the re levant statutory and regulatory background in detail. See Nebraska ex rel. Bruning v. U.S. Dep’t of Health & Human

Servs. , --- F. Supp. 2d ----, 2012 WL 2913402, at *2–5 (D. Neb. 2012) (Urbom, J.); Belmont Abbey College v. Sebelius , --- F. Supp. 2d ----, 2012 WL 2914417, at *1–3 (D.D.C. 2012) (Boasberg, J.). In summary, the Affordable Ca re Act (“ACA”) “requires group health plans to provide women with ‘preventiv e care and screenings’ at no charge to the patient.” Id. at *1 (quoting 42 U.S.C. § 300gg-13(a)(4)). While certain health plan s are grandfathered, 2 the rest must, “with respect to women,” cover “such addi tional preventive care and screenings . . . as

1 See The Becket Fund for Religious Liberty – HHS Mandate Information Central, http://www.becketfund.org/hhsinformati oncentral/ (last visited August 24, 2012).

2 Wheaton alleges that its plans are not gra ndfathered (Compl. ¶ 44) and defendants do not dispute this assertion.3 provided for in comprehensive guidelines suppo rted by the Health Resources and Services Administration” (“HRSA”) without impos ing any cost sharing requirements. Id. § 300gg13(a)(4). The guidelines subsequently adopted by HR SA require insurance plans to cover, inter

alia , all “contraceptive methods,” including Plan B and Ella, “s terilization procedures, and patient education and counseling for all women with reproductive capacity” that are approved by the FDA. Women’s Preventive Services: Required Health Plan Coverage Guidelines, http://www.hrsa.gov/womensguidelines / (last visited August 24, 2012); see Belmont Abbey College , 2012 WL 2914417, at *1–2 (citing FDA Birth Control Guide, http://www.fda.gov/forconsumers/byaudience/f orwomen/ucm118465.htm (last visited August 24, 2012)). Defendants promulgated an interim final rule, effective August 1, 2011, “requiring ‘group health plan[s] and . . . health insurance issuer[s] offering group or individual insurance coverage [to] provide benefits for and prohibit the imposition of cost sharing with respect to’ the preventive services for women in cluded in HRSA’s guidelines.” Id. at *2 (alterations in the original) (quoting Group Health Pl ans and Health Insurance Issu ers Relating to Coverage of Preventive Services Under the ACA, 76 Fed. Reg. 46,621, 46,622–23 (August 3, 2011) (interim final rules with request for comm ents); citing 45 C.F.R. § 147.130). Responding to comments received about a pr ior interim rule, defendants acknowledged “the effect on the religious be liefs of certain religious employe rs if coverage of contraceptive services were required,” and granted HRSA the au thority “to exempt cert ain religious employers from [its] Guidelines where contraceptive servic es are concerned.” 76 Fed. Reg. at 46,623. The interim final rule provided a definition for “rel igious employers” that included houses of worship4 but did not include institu tions like Wheaton College. 3 ( See Compl. ¶¶ 105–110; Def. Mot. at 7– 8.) Defendants requested comments on the interim fi nal rule and specifica lly on its definition of “religious employer.” 76 Fed. Reg. at 46,623. In response to the more than 200,000 comments defendants received, defendants published final regulations adopting the definition of “religious employer” in the interim final ru le and simultaneously establishing a temporary enforcement safe harbor for non-profit employers th at did not meet that definition’s criteria but that professed religious objecti ons to providing coverage for cont raceptives. Group Health Plans and Health Insurance Issuers Relating to Covera ge of Preventive Services Under the ACA, 77 Fed. Reg. 8,725, 8,725–8,729 (February 15, 2012) (final rule s). Defendants stat ed that “[b]efore the end of the temporary enforcement safe har bor,” they would “work with stakeholders to develop alternative ways of provi ding contraceptive coverage wit hout cost sharing with respect to non-exempted, non-profit religious organizations w ith religious objections to such coverage.”

Id. at 8,728. Defendants have announced that, during the temporary enforcement safe harbor, the government will not take any enforcement action against any employer, group health plan, or group health insurance issuer with respect to a non-grandfathered plan that fails to cover some or all recommended contraceptive serv ices and that is sponsored by an organization that meets the following criteria: 1. The organization is organized an d operates as a non-profit entity.

3 The interim final rule defined “a religious empl oyer [as] one that: (1) Has the inculcation of religious values as its purpose; (2) primarily em ploys persons who share it s religious tenets; (3) primarily serves persons who sh are its religious tenets; and (4 ) is a non-profit organization under” the Internal Revenue Code.” 76 Fed. Reg. at 46,623.5 2. From February 10, 2012 onward, c ontraceptive coverage has not been provided at any point by the group health plan established or maintained by the organization, consistent with any applicab le [s]tate law, because of the religious beliefs of the organization. 3. . . . [T]he group health plan establis hed or maintained by the organization (or another entity on behalf of the plan, such as a health insurance issuer or thirdparty administrator) must provide [notice] to participants . . . stat[ing] that contraceptive coverage will not be provided under the plan for the first plan year beginning on or after August 1, 2012. 4. The organization self- certifies that it satisfies criteria 1–3 above . . . . HHS, Guidance on the Temporary Enforcement Safe Harbor, February 10, 2012 (“Feb. 2012 Guidance”) at 3 (footnote omitted), available at http://cciio.cms.gov/resources /files/Files2/02102012/20120210-Preven tive-Services-Bulletin.pdf. In a revised guidance, de fendants “clarif[ied] . . . (1) that the safe harbor is also availabl e to non-profit organiza tions with religious objections to some but not all contraceptive coverage . . .; (2) that group health plans that took some action to try to excl ude or limit contraceptive coverage that was not successful as of February 10, 2012, are not for that reason precluded from eligibility for the safe harbor . . .; an d (3) that the safe harbor may be invoked without prejudice by non-prof it organizations that are uncertain whether they qualify for the religious employer exemption . . . . HHS, Guidance on the Temporary Enforcem ent Safe Harbor, August 15, 2012 (“Aug. 2012 Guidance”) at 1 n.1, available at http://cciio.cms.gov/resources/ files/prev-services-guidance08152012.pdf; see id. at 3–4 (stating revised cr iteria for the temporary enforcement safe harbor in accordance with the above). 4

4 Defendants issued the August 2012 Guidance in res ponse to this lawsuit. In its complaint, Wheaton alleged that it was not eligible for the te mporary enforcement safe harbor as described in the February 2012 Guidance because “Wheaton’ s employee insurance plans . . . currently provide coverage for certain contraceptives a nd inadvertently provided coverage for a short period after February 10, 2012 for other now-excluded contraceptives,” such as Plan B and Ella. (Compl. ¶ 120; see also Pl. Mot. at 7–9.) In their motion to dismiss, defendants announced an interpretation of the safe harbor criteria en compasses Wheaton, and this interpretation has now6 The “safe harbor provides an additional year for these group health plans and group health insurance issuers (i.e., until the first pl an year beginning on or after August 1, 2013)” to comply with HRSA guidelines regarding contraceptive coverage. Id. at 3. It also provides time for defendants, as they announced in a Marc h 2012 Advanced Notice of Proposed Rulemaking (“ANPRM”), “to expeditiously develop and propos e changes to the final regulations” regarding preventive services “that would meet two goals—accommodating non-exempt, non-profit religious organizations’ religious objections to co vering contraceptive services and assuring that participants and beneficiaries covered under such organizations ’ plans receive contraceptive coverage without cost sharing.” Certain Prev entive Services Under the ACA, 77 Fed. Reg. 16,501, 16,503 (March 21, 2012). In the ANPRM, defe ndants thus “formally declar[ed] their intention to amend the final regulations” with regard to contraceptive coverage “and solicit[ed] input from interested parties and the public.” Belmont Abbey College , 2012 WL 2914417, at *3. Defendants represent that, having received comments on the ANPRM, they “will publish a notice of proposed rulemaking, which will be subj ect to further public comment, before [they] issue further amendments to the preventive se rvices coverage regulations”; defendants will “finalize the amendments . . . such that they are effective before the end of the temporary enforcement safe harbor.” (Def. Mot. at 10 (citing 77 Fed. Reg. at 16,501, 16,503, 16,508).) Wheaton College brought suit, claiming that the regulations as currently fashioned violate the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et seq. (Counts I, XIII), the First Amendment (Counts II–X, XIII), and the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. (Counts XI–XIV).

been formalized in the August 2012 Guidance. (Def. Mot. at 9.)7 ANALYSIS

Defendants have moved to dismiss on st anding and ripeness grounds. Because defendants’ claims go to the Cour t’s jurisdiction, the Court must c onsider them before addressing Wheaton’s motion for a preliminary injunction. Steel Co. v. Citizens for a Better Env’t , 523 U.S. 83, 94–95 (1998). Wheaton bears the burden of establ ishing that this Court has jurisdiction over

its claims. Id. at 104.

I. STANDING [T]o establish constitutional standing, pl aintiffs must satisfy three elements: (1) they must have suffered an injury in fact that is “concrete and particularized” and “actual or imminent, not conj ectural or hypothetical”; (2) the injury must be “fairly traceable to the challenged action of the defendant”; and (3) “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” NB ex rel. Peacock v. Dist. of Columbia , 682 F.3d 77, 81 (D.C. Cir. 2012) (quoting Lujan v. Defenders of Wildlife , 504 U.S. 555, 560–61 (1992)). At issue here is whether Wheaton College has alleged an injury in fact. In Whitmore v.

Arkansas , 495 U.S. 149 (1990), “the Supreme Court su mmarized its case law and flatly stated: ‘[W]e have said many times before and reiterate today: Allegations of possibl e future injury do not satisfy the requireme nts of Art[icle] III. A threatened injury must be certainly impending to constitute injury in fact.’” Pub. Citizen, Inc. v. Nat’l Highway Traffic Safety Admin. , 489 F.3d 1279, 1294 (D.C. Cir. 2007) (alterations in the original) (quoting Whitmore , 495 U.S. at 158 (collecting cases)).

Wheaton concedes that it does not face an impending government enforcement action. It is undisputed, given the August 2012 Guidance, that Wheaton qualifies for the temporary enforcement safe harbor. (Def. Mot. at 12 (citi ng the declaration of HHS official Michael Hash8 ¶ 5); Pl. Opp’n at 10.) Furthermore, Wheaton has i ndicated that it will self -certify its eligibility and take advantage of the safe harbor pur suant to the August 2012 Guidance’s requirements. 5 Accordingly, the government “will not take a ny enforcement action against [Wheaton College] until the first plan year that begins on or af ter August 1, 2013.” (Def. Mot. at 12 (citing Aug. 2012 Guidance at 3).) Wheaton College may therefore continue to offer its current health plans, which do not cover Plan B and Ella, for the upc oming plan year without fear of government

interference. 6

5 The upcoming plan year for Wheaton’s employ ee insurance plans will begin on January 1, 2013. (Compl. ¶ 43.) In opposing defendants’ motion to dismiss, Wheaton stated that “as of that date, Wheaton’s health insurance will be in viol ation of federal law. . . . Wheaton will now be relieved from government enforcement of the [pre ventive services regulati ons] for an extra year, [but] it will still violate federal law” as of January 1. (Pl. Opp’n at 11.) With good reason, the Court and defendants ( see Def. Reply at 2) read this as a statement by Wheat on that it would continue its current plans, whic h do not cover Plan B and Ella, for the upcoming year. However, Wheaton’s lawyer backpedaled at oral argument and asserted that his client has yet to make a final decision about whether it w ould continue its current coverage or begin offering health plans that include emergency contra ceptives. (8/23 Tr. at 33.)

6 At oral argument, counsel for Wheaton claime d that the August 2012 Guidance, which makes Wheaton eligible for the temporary enforcement safe harbor, is irrelevant to the standing analysis because “the standing inquiry [is] focused on whether the party invoking jurisdiction had the requisite stake in the outcome when the suit was filed ,” Davis v. FEC , 554 U.S. 724, 734 (2008) (emphasis added), and when Wheaton filed its co mplaint it alleged that, under the criteria announced in the February 2012 Guidance that were operative at the time, it was not eligible. (Compl. ¶ 120; see 8/23 Tr. at 3–4.) However, the requireme nt that a plaintiff establish standing “continue[s] throughout the course of the litigation,” Johnson v. Holway , No. 03-cv-2513 (ESH), 2005 WL 3307296, at *25 (D.D.C. Dec. 6, 2005), because “‘[i]f the plaintiff loses standing . . . during the pendency of the proceedings . . ., the matter becomes moot, and the court loses jurisdiction.’” McNair v. Synapse Grp. Inc. , 672 F.3d 213, 227 n.17 (3d Cir. 2012) (some alterations in the original) (quoting Altman v. Bedford Cent. Sch. Dist. , 245 F.3d 49, 69 (2d Cir. 2001)). Indeed, the standing “requirement subs ists through all stages of federal judicial proceedings,” and “it is not enough that a dispute was very much alive when suit was filed” because “[t]he parties must conti nue to have a ‘personal stake in the outcome’ of the lawsuit.” Lewis v. Cont’l Bank Corp. , 494 U.S. 472, 477 (1990) (citations and some internal quotation marks omitted) (quoting Los Angeles v. Lyons , 461 U.S. 95, 101 (1983)). In sum, “Standing represents a jurisdictional requirement which re mains open to review at all stages of the litigation.” Nat’l Org. for Women v. Scheidler , 510 U.S. 249, 255 (1994).9 Wheaton protests that it still alleges a “‘ certainly impending’” injury, Lujan , 504 U.S. at 564 n.2 (some internal quotation marks omitted) (quoting Whitmore , 495 U.S. at 158), because it

may be subject to ERISA lawsuits attempting enfor cement of the preventive services regulations. (Pl. Opp’n at 11.) However, even crediting Wh eaton’s assertion that it is “completely exposed” to such actions ( id. (citing 29 U.S.C. §§ 1132(a) , 1185d(a)(1))), it is well -established that the theoretical possibility of harm from future litigation does not, without more, confer standing. “‘Allegations of injury based on predictions re garding future legal proceedings are . . . too speculative to invoke the jurisdicti on of an Article III Court.’” City of Orrville v. FERC , 147 F.3d 979, 987 (D.C. Cir. 1998) (altera tion in the original) (quoting Platte River Whooping Crane

Critical Habitat Maint. Trust v. FERC , 962 F.2d 27, 35 (D.C. Cir. 1992) (citing Whitmore , 495 U.S. at 157)); see also Salvation Army v. Dep’ t of Cmty. Affairs of New Jersey , 919 F.2d 183, 193 (3d Cir. 1990) (concluding that “the theoretica l possibility of a suit against [plaintiff] by a program beneficiary” was not suffi cient to establish jurisdiction); Belmont Abbey College , 2012 WL 2914417, at *15 (rejecting an ar gument identical to that ra ised by Wheaton College (citing Salvation Army , 919 F.2d at 193)). Furthermore, Wheaton has not demonstrated that there is anything “actual or imminent,”

Whitmore , 495 U.S. at 155, about the specter of a “p articipant [in] or beneficiary of” one of Wheaton’s health plans suing under ERISA, 29 U.S.C. § 1132(a), to challenge the fact that the

Furthermore, although the bur den lies with the party asserting mootness, Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 189 (2000), the fact that a case becomes moot when plaintiff loses standing, McNair , 672 F.3d at 227 n.17, does not mean that it is somehow defendant’s burden to show that plai ntiff no longer faces imminent injury. To the contrary, “[t]he party asserting federal jurisdic tion bears the burden of establishing [that it has standing] at every stage of the lit igation, as it does for ‘any other e ssential element of the case.’” Krottner v. Starbucks Corp. , 628 F.3d 1139, 1141 (9th Cir. 2010) (quoting Cent. Delta Water Agency v. United States , 306 F.3d 938, 947 (9th Cir. 2002)).10 plan does not cover Plan B or Ella. To the contrary, the allegations in Wheaton’s complaint support the conclusion that th is is a “‘conjectural’ or ‘hypothetical’” possibility. Whitmore , 495 U.S. at 155 (quoting Lyons , 461 U.S. at 101–02). ( See Compl. ¶¶ 20–29, 37–38.) “Each year, all Wheaton College students and full-time employees commit themselves to” the “Christian community of living, learning, and serving that Wheaton College aspires to be . . . by signing Wheaton College’s Community Covenant.” ( Id. ¶¶ 25–26.) That Covenant “recognizes that Scripture condemns the taking of innocent life.” ( Id. ¶ 28.) Wheaton alleges that it “believes and teaches that abortion ends a human life and is a sin” ( id. ¶ 29); that its “religious beliefs prohibit it from deliberately providing insuranc e coverage for drugs, pr ocedures, or services inconsistent with its faith, in pa rticular abortion-inducing drugs” ( id. ¶ 37); and that these include, in Wheaton’s view , Plan B and Ella. ( Id. ¶ 90.) Therefore, the possibility that Wheaton College health plan participants, all of wh om have signed the Co mmunity Covenant, or beneficiaries, who are likely family member s of Wheaton employees, would sue Wheaton to

secure free access to Plan B and Ella is remote at best. 7 It is therefore re asonable to conclude that such private suits are not “certainly impending.” Whitmore , 495 U.S. at 158.

7 Wheaton provides health insurance for its 709 fu ll-time employees. (Compl. ¶ 35; Pl. Opp’n at 1.) At oral argument, counsel for Wheaton affirmed the compla int’s allegation that all of Wheaton’s full-time employees, and ther efore all of its health plans’ participants, have signed the Community Covenant. (8/23 Tr. at 7.) The Cour t recognizes that Wheaton also provides health insurance for its employees’ family members (Pl. Mot. at 7), who may no t necessarily share the views described in Wheaton’s complaint. Noneth eless, counsel for Wheaton admitted that he did not know if anyone had ever asked Wheaton to cover Plan B or Ella , and that he had no concrete evidence to support his claim that a private ERISA suit is a realistic thre at. (8/23 Tr. at 9–10; id. at 32 (“[W]hether the actual laws uit happens next year is at so me level speculative . . . . We don’t have a crystal ball and we don’t know . . . .”).) See Salvation Army , 919 F.2d at 193 (“Nothing in the current record indicates that [p laintiff] has been threatened with suit . . . or provides any other reason to believe that [plaintiff’s] professed fear of a . . . suit is a realistic one.”).11 In arguing to the contrary, Wheaton re lies heavily, if not exclusively, on Chamber of

Commerce v. FEC , 69 F.3d 600 (D.C. Cir. 1995). Wheat on’s reliance is misplaced. In Chamber of Commerce , the Circuit’s conclusion that plaintiffs had standing to challenge a Federal Election Commission regulation on political speech was premised on its belief that a government enforcement action, even if not imminent , was nonetheless likely. While the Chamber of

Commerce plaintiffs were “not faced with any pres ent danger of an enforcement proceeding”

because the Commission could not act while it was tenuously “split three-three,” the Circuit held that plaintiffs had standing because “[n] othing” would “prevent[] the Commission from enforcing its rule at any time with, perhap s, another change of mind of one of the Commissioners.” 69 F.3d at 603; see id. at 603–04 (“A party has st anding to challenge, preenforcement, even the constitutionality of a statute if First Amendment rights are arguably chilled, so long as there is a credible threat of [gove rnment] prosecution.” (citing, inter alia , Virginia v. Am. Booksellers Ass’n , 484 U.S. 383, 392–93 (1988) (fi nding plaintiffs had standing to bring a pre-enforcement First Amendment chal lenge because “[t]he [s]tate has not suggested that the newly enacted law will not be enforced” and “plaintiffs have alleged an actual and wellfounded fear that the law will be enforced against them”))). Here, however, the government’s commitment not to act against employers that qualify for the temporary enforcement safe harbor wa s the product of sustaine d agency and public deliberation, see 77 Fed. Reg. at 8,726–27, and it repr esents a final decision, see 77 Fed. Reg. at 16,502–03, that has been reiterated twice. See Feb. 2012 Guidance; Aug. 2012 Guidance. Wheaton has not even argued that the Court shou ld question the government’s promise not to enforce the preventive services regulations ag ainst it while defendants work with Wheaton and

others to revise them. This alone serves to distinguish Chamber of Commerce , where there was12 no formal commitment not to prosecute and an en forcement action was like ly enough that even counsel for the government “agreed at oral argument—as he real ly had to—that he would not advise [plaintiffs] to ignore the rule” that they were challenging. 69 F.3d at 603. Moreover, the Chamber of Commerce plaintiffs alleged that in the prior election cycle they responded to the issuance of the FEC regulation by ceasing the political activity that the regulation affected. Id. at 602, 603. They thus substantiate d their allegations regarding the chilling effect of the challenged regulation on th eir constitutionally protected speech by putting forward a credible “‘claim of specific present objective harm.’” Bigelow v. Virginia , 421 U.S. 809, 816–17 (1975) (quoting Laird v. Tatum , 408 U.S. 1, 14 (1972)). Therefore, the fact that the Circuit in Chamber of Commerce also cited plaintiffs’ First Amendment claims and the potential that plain tiffs would be “subject to [private] litigation challenging the legality of their actions,” 69 F.3d at 603–04, provides scant support for Wheaton’s arguments. Wheaton is unquestiona bly exempt from government enforcement actions during the safe harbor and it has indicat ed, in opposing defendants’ motion to dismiss, that it will not compromise its beliefs in respon se to the preventive serv ices regulations during that period. (Pl. Opp’n at 10–11.) As noted above ( see supra n.5), Wheaton’s counsel retreated from this unequivocal statement of its future plan s at oral argument, and described the “coercive” effect of the government’s preventive services regulations on Wheaton’s decision as the source of Wheaton’s present inju ry. (8/23 Tr. at 12; see id. at 8–13, 18, 32–33, 39.) However, “allegations of chilling injury are not sufficien t basis for standing to challenge a government action, at least when the chil l is ‘subjective’ and not subs tantiated by evidence that the government action has a present and concrete effect .” Salvation Army , 919 F.2d at 19313 (emphasis added) (quoting Laird , 408 U.S. at 13) (collecting cases)). Indeed, the Supreme Court has emphasized that while its precedent recognize[s] that governmental action may be subject to constitutional challenge even though it has only an indirect eff ect on the exercise of First Amendment Rights, . . . these decisions have in no way eroded the ‘established principle that to entitle a private individual to invoke the judicial power to determine the validity of executive or legisl ative action he must show that he has sustained, or is immediately in danger of sustaining, a di rect injury as the result of that action . . . .’

Laird , 408 U.S. at 13 (quoting Ex parte Levitt , 302 U.S. 633, 634 (1937)). Wheaton has “not [met] this test; [its] claim, simply stated, is th at [it] disagree[s] with the judgments made by the Executive Branch with respect to” what preventive services health insurance plans must cover, “and that the very existence” of these regulations (notwithstanding the fact that they are presently in flux and that the government will not enforce them against Wheaton while they are being amended to address Wheaton’s concerns) “produ ces a constitutionally impermissible chilling effect upon the exercise of [its] First Amendment Rights.” Id. But “[a]llegations of a subjective ‘chill’ are not an adequate subst itute for a claim of specific present objective harm or a threat of specific future harm; ‘the federal courts established pursuant to Article III of the Constitution do not render advisory opinions.’” Id. at 13–14 (quoting United Pub. Workers of Am. (C.I.O.) v.

Mitchell , 330 U.S. 75, 89 (1947)). Wheaton has not demonstrated that it has standing.

II. RIPENESS In addition, Wheaton’s claims are not ripe. 8 “In assessing the pr udential ripeness of a case,” courts consider two factors: “the ‘fitness of the issues for judicial decision’ and the extent

8 Judges Urbom and Boasberg concluded the same as to the almost identical claims raised by the plaintiffs before them. See Nebraska ex rel. Bruning , 2012 WL 2913402, at *20–24; Belmont Abbey College , 2012 WL 2914417, at *10–15.14 to which withholding a decision will cause ‘hardship to the parties.’” Am. Petroleum Inst. v.

EPA , 683 F.3d 382, 387 (D.C. Cir. 2012) (quoting Abbott Labs. v. Gardner , 387 U.S. 136, 149 (1967), overruled on other grounds by Califano v. Sanders , 430 U.S. 99, 105 (1977)). Wheaton argues that its claims are fit for judi cial decision because the preventive services regulations are binding legal rule s that constrain Wheaton’s choice s with regard to the health insurance purchasing decisions. (Pl. Opp’n at 21–22, 26–27.) Havi ng rejected a similar standing argument, the Court will reject Wheaton’s ripene ss argument as well. The two doctrines are closely related. See Allen v. Wright , 468 U.S. 737, 750 (1984); Belmont Abbey College , 2012 WL 2914417, at *10. Yet, they are motivated by somewhat different concerns. The standing doctrine reflects the constitutional imperative that “federal courts sit ‘solely[] to decide on the rights of individuals,’” Hein v. Freedom from Religion Foundation, Inc. , 551 U.S. 587, 598 (2007) (quoting Marbury v. Madison , 1 Cranch 137, 170 (1803)), “and must ‘refrai[n] from passing upon the constitutionality of an act . . . unless obliged to do so in the proper performance of [the] judicial function, when the question is raised by a part y whose interests entitle him to

raise it.’” Id. (alterations in the original) (quoting Valley Forge Christian Coll. v. Ams. United for Separation of Church & State , 454 U.S. 464, 474 (1982)). By en suring that plaintiffs have standing, courts enforce Article III’s limitations on their own powers. Ripeness, on the other hand, is also concerned with the separation of powers, particularly where agency review is concer ned. In addition to preserving the proper role of courts under Article III, the ripeness doctr ine “‘prevent[s] the courts, through avoidance of premature adjudication, from entangling themselves in abst ract disagreements over administrative policies, and also . . . protect[s] the agencies from judici al interference until an administrative decision has

been formalized and its effects felt in a c oncrete way by the challenging parties.’” Nat’l Park15 Hospitality Ass’n v. Dep’t of the Interior , 538 U.S. 803, 807–08 (2003) (quoting Abbott Labs. , 387 U.S. at 148–49). The fitness requirement of the ripeness inquiry thus “protect[s] ‘the agency’s interest in crystallizing its policy before that policy is subjected to judicial review and the court’s interests in avoiding unnecessary adjudication and in d eciding issues in a concrete setting.’” Am. Petroleum Inst. , 683 F.3d at 387 (quoting Wyo. Outdoor Council v. U.S. Forest

Serv. , 165 F.3d 43, 49 (D.C. Cir. 1999)). As such, the “f itness of an issue” depends in large part on “‘whether the agency’s action is sufficiently final.’” Id. (quoting Atl. States Legal Found. v.

EPA , 325 F.3d 281, 284 (D.C. Cir. 2003)).

Courts decline to review “tentative” agency positions because doing so “severely compromises the interests” the ripeness doctrine protects : “The agency is denied full opportunity to apply its expertise and to correct errors or modify positions in the course of a proceeding, the integr ity of the administrative process is threatened by piecemeal review of the substantive underpinnings of a rule, and judicial economy is disserved because j udicial review might prove unnecessary if persons seeking such review are able to convince the ag ency to alter a tentative position.”

Id. (emphasis added) (quoting Pub. Citizen Health Research Grp. v. FDA , 740 F.2d 21, 31 (D.C. Cir. 1984)). Because they are in the process of being amended, see 77 Fed. Reg. at 16,501 (ANPRM), the preventive services regulations are by defin ition a tentative agency position “‘in which the agency expressly reserves the possibili ty that its opinion might change.’” Birdman v. Office of

the Governor , 677 F.3d 167, 173 (3d Cir. 2012) (internal quotation marks and alterations omitted) (quoting Natural Res. Defense Council v. FAA , 292 F.3d 875, 883 (D.C. Cir. 2002)). 9

9 Wheaton protests that its “challenge to the [preve ntive services regulations ] raises questions of law largely independent of context- specific facts” (Pl. Opp’n at 22), and that “if the issue raises a purely legal question . . . [courts] assume its threshold suitability for judicial determination.” Eagle-Picher Indus. v. EPA , 759 F.2d 905, 915 (D.C. Cir. 1985). However, even were the Court to agree that Wheaton’s claims ar e purely legal, that does not end the inquiry. After deciding16 The ANPRM is “‘clearly not some non-substantiv e, thinly veiled attempt [by defendants] to

evade review.’” Belmont Abbey College , 2012 WL 2914417, at *13 (quoting Am. Petroleum

Inst. , 683 F.3d at 388); accord Nebraska ex rel. Bruning , 2012 WL 2913402, at *23 (the fact that the preventive services regulati on itself “describes the temporary enforcement safe harbor,” and that the agencies have undert aken “a new proposed rulemaking[,] dispels the notion that the defendants are engaged in re view-evading gamesmanship”). 10 And the fact that defendants may have settled on a definition of the “religious em ployers” that will be exempted from certain of the preventive services requirements 11 is irrelevant given that th e requirements themselves are anything but final. See id. at *22.

that an “issue raises a purely legal question,” c ourts must still “consider whether the agency or the court will benefit from deferring review until the agency’s policies have crystallized and the ‘question arises in some more concrete and final form.’” Eagle-Picher Indus. , 759 F.2d at 915 (quoting Abbott Labs. , 387 U.S. at 149); see Belmont Abbey College , 2012 WL 2914417, at *14 (“courts should refrain from ‘intervening into ma tters that may best be reviewed at another time or in another setting,’ even if the is sue presented is ‘pur ely legal’” (quoting Full Value Advisors v. SEC , 633 F.3d 1101, 1106 (D.C. Cir. 2011)).

10 Defendants have taken significant steps toward revising the preventive services regulations: They have published their plan to amend the rule to address the exact concerns [p]laintiff raises in this action and have stated clea rly and repeatedly in the Federal Register that they intend to finalize the changes before the enforcement safe harbor ends. . . . Not only that, bu t [d]efendants have already initiated the amendment process by issuing an ANPRM. . . . The government, moreover, has done nothing to suggest that it might ab andon its efforts to modify the rule— indeed, it has steadily pursued that course —and it is entitled to a presumption that it acts in good faith. See

. . . Comcast Corp. v. F.C.C. , 526 F.3d 763, 769 n.2 (D.C. Cir. 2008) (“We must presume an agency acts in good faith . . . .”). Belmont Abbey College , 2012 WL 2914417, at *9 (some internal quotation marks and citations omitted).

11 In addition, counsel for the defendants stated at oral argument that the ANPRM “certainly doesn’t foreclose changing th e religious employer exemp tion.” (8/23 Tr. at 27.)17 Moreover, the regulations Wheaton challenges are being amended precisely in order to

accommodate Wheaton’s concerns. See AT&T Corp. v. FCC , 369 F.3d 554, 563 (D.C. Cir. 2004) (per curiam) (dismissing challenge as unri pe because of “ongoing rulemaking proceedings . . . address[ing] the issues raised by [petitioner]”). Wheaton only tilts at windmills when it protests that it will not be satisfied with wh atever amendments defendants ultimately make. Indeed, Wheaton’s argument that various hypothetical accommodations are insufficient ( see Pl. Opp’n at 16–17, 19, 23–26) only serves to undersco re why this Court ought not address the merits of Wheaton’s claims until the preventive services regulations “have taken on fixed and final shape so that [the Court] can se e what legal issues it is deciding.” Pub. Serv. Comm’n v. Wycoff Co. , 344 U.S. 237, 244 (1952). Nor has Wheaton demonstrated a hardship from any delay that would override its claims’ lack of fitness for judicial review. See Am. Petroleum Inst. , 683 F.3d at 389 (“Considerations of hardship that might result from delaying review ‘will rarely overcome the finality and fitness problems inherent in attempts to re view tentative positions.’” (quoting Pub. Citizen Health Research Grp. , 740 F.2d at 31)). “Costs stemming from [Wheat on’s] desire to prepare for contingencies are not sufficient . . . to constitute a hardship for purposes of the ripeness inquiry—particularly when [defendants’] promises and actions suggest th e situation [Wheaton] fears may not occur.” Belmont Abbey College , 2012 WL 2914417, at *14 (collecting cases). And “[t]he planning insecu rity [Wheaton] advances” with regard to what th e preventive services regulations may (or may not ) require of it does not su ffice to show hardship. Tenn. Gas Pipeline

Co. v. FERC , 736 F.2d 747, 751 (D.C. Cir. 1984).

CONCLUSION “In sum, the application of” the preventive services regulations to Wheaton “remains18 hypothetical.” Id . Wheaton’s arguments do not set its case apart from the mine run of s ituations in which an enterprise confronts . . . projected application of regulatory or fiscal legislation. Were [courts] to entertain anticipatory challenges presse d by parties facing no imminent threat of adverse agency action, no hard choice between compliance certain to be disadvantageous and a high probability of strong sanctions, . . . [they] would venture away from the domain of judici al review into a realm more accurately described as judicial preview. No r oving preview function has been assigned to courts in the federal system.

Id. (citations omitted). Defendants’ motion to dismiss on jurisdicti onal grounds will be granted. A separate Order accompanies this Memorandum Opinion.

/s/ ELLEN SEGAL HUVELLE United States District Judge Date: August 24, 2012