# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

January 30, 2013 *

Before

JOEL M. FLAUM, Circuit Judge

ILANA DIAMOND ROVNER

, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 13

‐ 1077

WILLIAM D. GROTE, III, et al.,

Plaintiffs

‐ Appellants,

v.

KATHLEEN SEBELIUS, in her official

capacity as the Secretary of the United

States Department of Health and Human

Services, et al.,

Defendants

‐ Appellees. Appeal from the

United States District Court for the

Southern District of Indiana.

No. 4:12

‐ cv

‐ 00134

‐ SEB

‐ DML

Sarah Evans Barker,

Judge

.

O R D E R

The following are before the court:

1. PLAINTIFFS

‐ APPELLANTS’ MOTION FOR AN INJUNCTION PENDING

APPEAL, filed on January 11, 2013, by counsel for the appellants.

2. OPPOSITION TO PLAINTIFFS’ MOTION FOR AN INJUNCTION PENDING

APPEAL, filed on January 17, 2013, by counsel for the appellees.

* This order is being released in typescript. It will be published; a printed version will

follow.No. 13

‐ 1077 Page 2

3. PLAINTIFFS

‐ APPELLANTS’ REPLY IN SUPPORT OF THEIR MOTION FOR

AN INJUNCTION PENDING APPEAL, filed January 24, 2013, by counsel for

the appellants.

Members of the Grote Family and their company, Grote Industries, appeal the

district court’s order denying their motion for a preliminary injunction against the

enforcement of provisions of the Patient Protection and Affordable Care Act (“ACA”) and

related regulations that require Grote Industries to provide coverage for contraception and

sterilization procedures in its group health

‐ insurance plan. 1 They have moved for an

injunction pending appeal. See F ED

. R. A PP

. P. 8. We recently granted such an injunction in

a similar case. See Korte v. Sebelius

, No. 12

‐ 3841, 2012 WL 6757353 (7th Cir. Dec. 28, 2012).

As explained below, this case is materially indistinguishable. Accordingly, we consolidate

this case with Korte and likewise grant the motion here.

The Grote Family owns Grote Industries, a privately held, family

‐ run business

headquartered in Madison, Indiana. Grote Industries manufactures vehicle safety systems.

The company has 1,148 full

‐ time employees working at various locations and provides a

group health

‐ insurance plan for the benefit of its employees. The plan is self

‐ insured and

renews every year on January 1.

The members of the Grote Family are Catholic and operate their business in

accordance with the precepts of their faith, including the Catholic Church’s teachings

regarding the moral wrongfulness of abortifacient drugs, contraception, and sterilization.

Consistent with the Grote Family’s religious commitments, before January 1, 2013, the

Grote Industries health

‐ insurance plan did not cover abortifacient drugs, contraception, or

sterilization.

The ACA and accompanying regulations mandate that the Grote Industries health

‐

insurance plan provide no

‐ cost coverage for all FDA

‐ approved contraceptives, sterilization

procedures, and related services

. In brief, the regulatory framework imposing this mandate

is as follows: The ACA requires nongrandfathered and nonexempt group health

‐ insurance

plans to cover certain preventive health services without cost

‐ sharing, see 42 U.S.C.

§ 300gg

‐ 13(a)(4), and regulations promulgated by the United States Department of Health

1 The individual plaintiffs are William D. Grote, III; William Dominic Grote, IV; Walter F.

Grote, Jr.; Michael R. Grote; W. Frederick Grote, III; and John R. Grote. For ease of reference, we

refer to them collectively as the Grote Family. Grote Industries consists of two companies formed

under the laws of Indiana: Grote Industries, LLC, and Grote Industries, Inc. The Grote Family,

including members not listed as plaintiffs, fully own Grote Industries, Inc. This entity, in turn,

serves as the managing member of Grote Industries, LLC.No. 13

‐ 1077 Page 3

and Human Services (“HHS”) specify that the required coverage must include all FDA

‐ approved contraceptive methods and sterilization procedures, see 77 Fed. Reg. 8725 (Feb. 15,

2012) (“the contraception mandate” or “the mandate”). This includes oral contraceptives

with possible abortifacient effect (including emergency contraception such as the “morning

‐

after pill”) and intrauterine devices. See id. ; O FFICE OF W OMEN ’ S H EALTH

, F OOD & D RUG

A DMIN

., B IRTH C ONTROL G UIDE 10

‐ 12, 16

‐ 20 (2012), http://www.fda.gov/

downloads/ForConsumers/ByAudience/ ForWomen/FreePublications/UCM282014.pdf.

The contraception mandate takes effect starting in the first plan year after August 1,

2012. See 77 Fed. Reg. at 8725

‐ 26. Because the Grote Industries health

‐ insurance plan renews

on January 1 of each year, the mandate required the company to begin covering oral

contraception, sterilization procedures, intrauterine devices, and emergency contraception

when the plan renewed on January 1, 2013. The mandate is backed by heavy financial

penalties; employers who do not comply face enforcement actions, see 29 U.S.C. § 1132(a) ; a

penalty of $100 per day per employee, see 26 U.S.C. § 4980D(a)

‐ (b); and an annual tax

surcharge of $2,000 per employee, see id. § 4980H.

The Grote Family and Grote Industries filed suit on October 29, 2012, seeking

declaratory and injunctive relief blocking the enforcement of the contraception mandate

against them. They assert constitutional claims under the Free Exercise, Establishment, and

Free Speech Clauses of the First Amendment, and the Due Process Clause of the Fifth

Amendment, as well as claims alleging violations of the Religious Freedom Restoration Act

(“RFRA”), 42 U.S.C. §§ 2000bb to 2000bb

‐ 4, and the Administrative Procedure Act, 5 U.S.C.

§ 706. They moved for a preliminary injunction; the district court denied the motion on

December 27, 2012.

The following day we issued our order in Korte granting the motion for an injunction

pending appeal, 2012 WL 6757353, at *1, prompting the Grote Family and Grote Industries to

request reconsideration in the district court. On January 3, 2013, the district court, aware of

our decision in Korte

, denied the motion for reconsideration. The court acknowledged the

similarities between Korte and this case but declined to follow our order in Korte

, emphasizing that it was not a precedential ruling on the merits. This appeal followed. See 28

U.S.C. § 1292(a)(1). As in Korte

, the Grote Family and Grote Industries moved for an

injunction pending appeal, 2 relying for present purposes solely on their RFRA claim. 3

2 We evaluate a motion for an injunction pending appeal using the same factors and “sliding

scale” approach that govern an application for a preliminary injunction. See Cavel Int’l, Inc. v.

Madigan

, 500 F.3d 544, 547

‐ 48 (7th Cir. 2007). The moving party must establish that it has “(1) no

(continued...)No. 13

‐ 1077 Page 4

There is no material distinction between the motion in this case and the one we

addressed and granted in Korte. There, we considered the likelihood of success of a claim

brought by a secular, for

‐ profit corporation owned and operated by a Catholic family in

accordance with the teachings of the Catholic faith. Korte

, 2012 WL 6757353, at *1. The

Kortes, like the Grote Family here, sued for declaratory and injunctive relief in the form of an

exemption from the requirements of the contraception mandate. The Kortes’ company, K &

L Contractors, provided a group health

‐ insurance plan for its nonunion employees. In

August 2012 the Kortes discovered that the plan included coverage for contraception and

wanted to replace it with a plan that conforms to the requirements of their faith, but the

contraception mandate prevented them from doing so. Id. They sued the HHS Secretary

asserting (among other claims for relief) that the mandate violated their rights under RFRA.

They moved for a preliminary injunction, but the district court denied the motion. The

Kortes and their company (collectively, “the Kortes”) appealed. They asked us for an

injunction pending appeal, and we granted the motion. Reserving plenary review for later in

the appeal, we held that the Kortes had established a reasonable likelihood of success on

their RFRA claim. Id. at *3

‐ 4. We also held that the equitable balance tipped in favor of

granting the injunction; the harm to the Kortes’ religious

‐ liberty rights outweighed the

temporary harm to the government’s interest in providing greater access to cost

‐ free

contraception and related services. Id. at *4

‐ 5.

In all important respects, this case is identical to Korte ; our analysis there applies with

equal force here. If anything, the Grote Family and Grote Industries have a more compelling

case for an injunction pending appeal. Unlike the health

‐ insurance plan at issue in Korte

, the

Grote Industries health plan is self

‐ insured and has never provided contraception coverage

.

2 (...continued)

adequate remedy at law and will suffer irreparable harm if a preliminary injunction is denied and

(2) some likelihood of success on the merits.” Ezell v. City of Chicago

, 651 F.3d 684, 694 (7th Cir.

2011). Once the threshold requirements are met, the court weighs the equities, balancing each

party’s likelihood of success against the potential harms. Girl Scouts of Manitou Council, Inc. v. Girl

Scouts of the U.S., Inc.

, 549 F.3d 1079, 1100 (7th Cir. 2008). The more the balance of harms tips in

favor of an injunction, the lighter the burden on the party seeking the injunction to demonstrate that

it will ultimately prevail. Abbott Labs. v. Mead Johnson & Co.

, 971 F.2d 6, 12 (7th Cir. 1992)

.

3 RFRA prohibits the federal government from imposing a “substantial[] burden [on] a

person’s exercise of religion even if the burden results from a rule of general applicability” unless

the government demonstrates that the burden “(1) is in furtherance of a compelling governmental

interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

42 U.S.C. § 2000bb

‐ 1(a)

‐ (b).No. 13

‐ 1077 Page 5

Absent an injunction, the Grote Family and Grote Industries must now cover abortifacient

drugs, contraception, and sterilization through the company’s self

‐ insured health plan.

Thus, the only factual distinctions between the two cases actually strengthen the equities in

favor of granting an injunction pending appeal.

And the legal analysis has not changed. The Grote Family and Grote Industries make

essentially the same arguments as did the Kortes. They maintain that the legal duties

imposed on them by the contraception mandate conflict with the religious duties required by

their faith, and they cannot comply with both. The mandate, they contend, compels them to

materially cooperate in a grave moral wrong contrary to the teachings of their church and

levies severe financial penalties if they do not comply. In this way, they argue, the mandate

substantially burdens their free

‐ exercise rights, triggering the strict

‐ scrutiny test codified in

RFRA. As we noted in Korte

, this “is an exacting standard, and the government bears the

burden of satisfying it.” Id. at *2.

In response the government advances the same arguments as it did in Korte

. To

abbreviate, the government maintains that (1) a secular, for

‐ profit corporation cannot assert a

claim under RFRA; (2) relatedly, the free

‐ exercise rights of the individual plaintiffs are not

affected because their corporation is a separate legal entity; and (3) the mandate’s burden on

their free

‐ exercise rights is too remote and attenuated to qualify as “substantial” under RFRA

because the decision to use contraception benefits is made by third parties— individual

employees, in consultation with their medical providers. We addressed these arguments in

our order in Korte

, and nothing presented here requires us to reconsider that prior ruling.

Here, as in Korte, the Grote Family’s use of the corporate form is not dispositive of the claim.

See Korte

, 2012 WL 6757353, at *3 (citing Citizens United v. Fed. Election Comm’n

, 558 U.S. 310

(2010)). And the government’s minimalist characterization of the burden continues to

obscure the substance of the religious

‐ liberty violation asserted here. Id. The members of the

Grote Family contend that their faith forbids them to facilitate access to contraception by

paying for it, as the mandate requires them to do.

And as in Korte

, the government has not, at this juncture, made an effort to satisfy

strict scrutiny. In particular, it has not demonstrated that requiring religious objectors to

provide cost

‐ free contraception coverage is the least restrictive means of increasing access to

contraception. Although we again reserve plenary review of the merits for later in this

appeal, for the reasons explained more thoroughly in our order in Korte

, we conclude that the

Grote Family and Grote Industries have established a reasonable likelihood of success on the

merits of their RFRA claim. We also conclude that they will suffer irreparable harm absent

an injunction pending appeal, and the balance of harms tips in their favor.No. 13

‐ 1077 Page 6

IT IS ORDERED that the motion for an injunction pending appeal is GRANTED

. The defendants are enjoined pending resolution of this appeal from enforcing the

contraception mandate against the Grote Family and Grote Industries.

IT IS FURTHER ORDERED that this case is consolidated with Korte. Oral argument

will be scheduled by separate order when briefing has been completed.

ROVNER, Circuit Judge

, dissenting. As a result of the court’s decision to consolidate

this appeal with Korte v. Sebelius

, No. 12

‐ 3841, the Grote appellants’ request for an injunction

pending appeal comes before the same panel that ordered preliminary relief in Korte

. See

Korte v. Sebelius

, 2012 WL 6757353 (7th Cir. Dec. 28, 2012) (unpublished order). I recognize

that the arguments in favor of preliminary relief in Grote are in some ways stronger than

those in Korte (for example, the Grotes’ company was not already covering contraceptive care

when the new federal mandate took effect, whereas the Kortes’ company was). Despite the

differences between the two appeals, I am no more persuaded that preliminary injunctive

relief is warranted in Grote than I was in Korte

. Specifically, the appellants have not, in my

view, shown that they are reasonably likely to prevail on the merits of their claims. See Cavel

Int’l, Inc. v. Madigan

, 500 F.3d 544, 547

‐ 48 (7th Cir. 2007). With the benefit of the memoranda

submitted by the parties in Grote and additional time to contemplate some of the issues

presented by these appeals, I write separately here to expand on the doubts I expressed in

Korte

.

Of the multiple theories of relief that the Grote plaintiffs have so far articulated in this

litigation (and which were given thorough treatment in the district court’s orders below), the

only one invoked in this court as a basis for preliminary relief pending appeal is their claim

under the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb et seq. (“RFRA”).

Among other elements, that claim requires a showing that the regulatory mandate to provide

contraceptive coverage, issued pursuant to the Patient Protection and Affordable Care Act,

see 42 U.S.C. § 300gg–13(a)(4) (“Affordable Care Act”); 77 Fed. Reg. 8725 (Feb. 15, 2012),

substantially burdens the plaintiffs’ exercise of religion. § 2000bb

‐ 1(a), (b). A substantial

burden is “one that necessarily bears a direct, primary, and fundamental responsibility for

rendering religious exercise

. . . effectively impracticable.” Civil Liberties for Urban Believers v.

City of Chicago

, 342 F.3d 752, 761 (7th Cir. 2003) (construing Religious Land Use and

Institutionalized Persons Act

, 42 U.S.C. §§ 2000cc et seq. (“RLUIPA”)); see Vision Church v.

Village of Long Grove

, 468 F.3d 975, 997 (7th Cir. 2006) (RLUIPA) (“Similarly, interpreting the

First Amendment, the Supreme Court has found a ‘substantial burden’ to exist when theNo. 13

‐ 1077 Page 7

government puts ‘substantial pressure on an adherent to modify his behavior and to violate

his beliefs.’”) (quoting Hobbie v. Unemployment Appeals Comm ʹ n of Florida

, 480 U.S. 136, 141,

107 S. Ct. 1046, 1049 (1987)); see also Nelson v. Miller

, 570 F.3d 868, 878 (7th Cir. 2009)

(RLUIPA and First Amendment); Koger v. Bryan

, 523 F.3d 789, 799 (7th Cir. 2008) (RLUIPA).

Like Judge Barker, I am not persuaded that the plaintiffs have made that showing.

I begin my analysis with a threshold point: on the record before us, it is only the

Grotes, and not the corporate entities, which can claim to have a right to exercise religious

freedoms. Grote Industries (by which I mean to include both Grote Industries, LLC and

Grote Industries, Inc.) is a secular, for

‐ profit business engaged in the manufacture of vehicle

safety systems. So far as the limited record before us reveals, it has stated no religious goals

as part of its mission, it does not select its employees, vendors, or customers on the basis of

their religious beliefs, and it does not require its employees to conform their behavior to any

particular religious precepts. As such, I cannot imagine that the company, as distinct from

the Grotes, has any religious interests or rights to assert here. To be sure, a secular

corporation does have some types of First Amendment rights: it has the right to engage in

commercial speech in the promotion of its products, for example, see generally Cent. Hudson

Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y.

, 447 U.S. 557, 100 S. Ct. 2343 (1980), and in

pursuit of its interests as a corporate citizen, it has the right to articulate what government

policies it supports or opposes and to contribute money to political campaigns in pursuit of

its commercial agenda, see Citizens United v. Fed. Election Comm’n

, 558 U.S. 310, 130 S. Ct. 876

(2010). Moreover, there do exist some corporate entities which are organized expressly to

pursue religious ends, and I think it fair to assume that such entities may have cognizable

religious liberties independent of the people who animate them, even if they are profit

‐ seeking. See

, e.g.

, Tyndale House Publishers, Inc. v. Sebelius

, 2012 WL 5817323, at *6

‐ *7 (D.D.C.

Nov. 16, 2012) (for

‐ profit publisher of Christian texts, owned by not

‐ for

‐ profit religious

foundation and related trusts which directed publisher’s profits to religious charity and

educational work); see also Corp. of Presiding Bishop of Church of Jesus Christ of Latter

‐ day Saints

v. Amos

, 483 U.S. 327, 345 n.6, 107 S. Ct. 2862, 2873 (1987) (Brennan, J., concurring in the

judgment) (“it is

. . . conceivable that some for

‐ profit activities could have a religious

character”). 1 Indeed, there is a regulatory exemption from the contraception mandate for

1 Compare E.E.O.C. v. Townley Eng’g & Mfg. Co.

, 859 F.2d 610, 619 (9th Cir. 1988) (finding

manufacturer of mining equipment to be a primarily secular company and therefore not a religious

organization exempt from Title VII, despite, inter alia

, religious beliefs of owners, company’s

financial support for religious missions, company’s inclusion of religious tracts in company’s

outgoing mail and printing of Bible verses on its commercial documents, and weekly devotional

services at workplace, where company was organized for profit, produced a secular product, was

not affiliated with or supported by a church, and did not mention religious purpose in articles of

(continued...)No. 13

‐ 1077 Page 8

religious employers. 45 C.F.R. § 147.130(a)(1)(iv)(B). But it appears to be common ground

among the parties that Grote Industries does not meet the criteria for such an employer. So

far as it appears, the mission of Grote Industries, like that of any other for

‐ profit, secular

business, is to make money in the commercial sphere. In short, the only religious freedoms

at issue in this appeal are those of the Grotes, not the companies they own. See Hobby Lobby

Stores, Inc. v. Sebelius

, 870 F. Supp. 2d 1278, 1291 (W.D. Okla. 2012) (“General business

corporations do not, separate and apart from the actions or belief systems of their individual

owners or employees, exercise religion. They do not pray, worship, observe sacraments or

take other religiously

‐ motivated actions separate and apart from the intention and direction

of their individual actors. Religious exercise is, by its nature, one of those “purely personal”

matters referenced in [ First Nat ʹ l Bank of Boston v. Bellotti

, 435 U.S. 765, 778 n. 14, 98 S. Ct.

1407, 1416 n.14 (1978)] which is not the province of a general business corporation.”).

This brings me back to a point that I made in Korte

, namely that it is the corporation,

rather than its owners, which is obligated to provide the contraceptive coverage to which the

owners are objecting. Korte v. Sebelius

, 2012 WL 6757353, at *5 (Rovner, J., dissenting). Grote

Industries is a closely

‐ held, family

‐ owned firm, and I suspect there is a natural inclination for

the owners of such companies to elide the distinction between themselves and the companies

they own. 2 But there is a distinction, and it matters in important respects. See Korte v. U.S.

Dep’t of Health & Human Servs.

, 2012 WL 6553996, at *9 (S.D. Ill. Dec. 14, 2012) (“business

forms and so

‐ called ‘legal fictions’ cannot be entirely ignored” in assessing the relationship

between corporate entity and owners for purposes of RFRA). Both Grote Industries, Inc.,

and its subsidiary, Grote Industries, LLC, have legal identities that are separate from those of

the Grotes. “[I]ncorporation ʹ s basic purpose is to create a distinct legal entity, with legal

rights, obligations, powers, and privileges different from those of the natural individuals

who created it, who own it, or whom it employs.” Cedric Kushner Promotions, Ltd. v. King

, 533

U.S. 158, 163, 121 S. Ct. 2087, 2091 (2001). Although the corporations’ income flows to the

Grotes, the corporate form significantly limits the Grotes’ liability; the corporations, unlike

1 (...continued)

incorporation) with LeBoon v. Lancaster Jewish Community Center Ass’n

, 503 F.3d 217, 227

‐ 28 (3d Cir.

2007) (finding community center to be exempt from Title VII as religious organization in view of,

inter alia

, its not

‐ for

‐ profit nature, recognition in articles of incorporation and bylaws that its purpose

was to “enhance and promote Jewish identity, life, and continuity,” presentation of Judaic

programming, advisory role of rabbis in center’s management, and center’s close ties with, and

receipt of financial support from, local synagogues).

2 Cf. Townley Eng’g & Mfg. Co.

, supra n.1, 859 F.2d at 620 (owners of corporation argued that

“Townley Company is an extension of the beliefs of Mr. and Mrs. Townley, and for all purposes, the

beliefs of Mr. and Mrs. Townley are the beliefs and tenets of the Townley Company.”).No. 13

‐ 1077 Page 9

the Grotes, have potentially unlimited life spans; and ownership of the corporations may be

transferred from the Grotes to others. More to the point, it is Grote Industries that employs

over 1,100 people around the world, not the Grotes themselves; it is Grote Industries which,

as the employer, sponsors a health care plan for the company’s employees; and it is that

health plan which is now obligated by the Affordable Care Act and resulting regulations to

include contraceptive coverage to the 464 employees who work in the United States. Indeed,

as the government points out, the health plan itself is a distinct legal entity. See 29 U.S.C.

§ 1132(d)(1) (“An employee benefit plan may sue or be sued under this subchapter as an

entity.”). 3 It is worth adding that the Privacy Rule incorporated into the regulations

promulgated pursuant to the Health Insurance Portability and Accountability Act of 1996

(“HIPAA”) imposes a wall of confidentiality between an employee’s health care decisions

(and the plan’s financial support for those decisions) and the employer. See 45 C.F.R. Parts

160 and 164; U.S. Dep’t of Health & Human Servs., Health Information Privacy

, www.hhs.gov/ocr/privacy/hipaa /understanding/index.html (last visited Jan. 27, 2013).

I recognize that the Grote Industries health plan is self

‐ funded, so the additional level

of separation provided by an insurance company, which was present in Korte

, is missing

here. See Tyndale House Publishers

, 2012 WL 5817323, at *13 (finding this to be a “crucial

distinction”). My fundamental point remains the same, however: the obligation to cover

contraceptives falls not on the Grotes personally but on Grote Industries’ health care plan.

Furthermore, the money used to fund that plan belongs to the company, not to the Grotes.

The owners of an LLC or corporation, even a closely

‐ held one, have an obligation to respect

the corporate form, on pain of losing the benefits of that form should they fail to do so. See

,

e.g.

, Wachovia Sec., LLC v. Banco Panamericano, Inc.

, 674 F.3d 743 (7th Cir. 2012); Laborers’

Pension Fund v. Lay

‐ Com, Inc.

, 580 F.3d 602 (7th Cir. 2009). The Grotes are not at liberty to

treat the company’s bank accounts as their own; co

‐ mingling personal and corporate funds is

a classic sign that a company owner is disregarding the corporate form and treating the

business as his alter ego. See

, e.g.

, Van Dorn Co. v. Future Chem. & Oil. Corp.

, 753 F.2d 565, 570

(7th Cir. 1985) (Illinois law); Aronson v. Price

, 644 N.E.2d 864, 867 (Ind. 1994). So long as the

business’s liabilities are not the Grotes’ liabilities

– which is the primary and “invaluable

privilege” conferred by the corporate form, Torco Oil Co. v. Innovative Thermal Corp.

, 763 F.

Supp. 1445, 1451 (N.D. Ill. 1991) (Posner, J., sitting by designation)

– neither are the

business’s expenditures the Grotes’ own expenditures. To suggest, for purposes of the

RFRA, that monies used to fund the Grote Industries health plan

– including, in particular,

3 But see also Leister v. Dovetail, Inc.

, 546 F.3d 875, 879 (7th Cir. 2008) (noting that although

“the plan is the logical and normally the only proper defendant” in a suit for benefits, “in cases

. . .

in which the plan has never been unambiguously identified as a distinct entity, we have permitted

the plaintiff to name as defendant whatever entity or entities, individual or corporate, control the

plan”).No. 13

‐ 1077 Page 10

any monies spent paying for employee contraceptive care

– ought to be treated as monies

from the Grotes’ own pockets would be to make an argument for piercing the corporate veil.

I do not understand the Grotes to be making such an argument.

The Grotes consequently are, in both law and fact, separated by multiple steps from

both the coverage that the company health plan provides and from the decisions that

individual employees make in consultation with their physicians as to what covered services

they will use. Any burden imposed on the Grotes individually by the contraception

mandate is, as Judge Barker reasoned, “likely too remote and attenuated to be considered

substantial” for purposes of the RFRA. Grote Indus., LLC v. Sebelius

, 2012 WL 6725905, at *5

(S.D. Ind. Dec. 27, 2012) (citing O’Brien v. U.S. Dep’t of Health & Human Servs.

, 2012 WL

4481208, at *5 (E.D. Mo. Sept. 28, 2012) and Hobby Lobby

, 870 F. Supp. 2d at 1294); see also

Conestoga Wood Specialties Corp. v. Sebelius

, 2013 WL 140110, at *14 (E.D. Pa. Jan. 11, 2013)

(“whatever burden the Hahns may feel from being involved with a for

‐ profit corporation

that provides health insurance that could possibly be used for contraceptives, that burden is

simply too indirect to be considered substantial under the RFRA”).

I understand the Grotes’ concern

– the closely

‐ held corporation of which they are

controlling shareholders is funding a plan that must now cover contraceptive services, which

are inconsistent with their Catholic beliefs. Although Grote Industries is not a religious

employer, the Grotes aver, albeit without elaboration, that they seek to run the company in a

manner that reflects their religious beliefs. Whatever else that may mean, I assume that it

explains why, to date, Grote Industries’ self

‐ funded health plan has not included coverage

for contraceptives. Requiring the company to include coverage for contraceptives forces the

Grotes to operate the business in a way that deviates from the Catholic values that they

otherwise endeavor as business owners to observe.

But in this respect the Grotes are no different from any number of business people

who must, in compliance with a variety of statutory mandates, take actions that may be

inconsistent with their individual religious convictions. The Grotes have voluntarily elected

to engage in a large

‐ scale, secular, for

‐ profit enterprise. As the Supreme Court observed in

United States v. Lee

, “When followers of a particular sect enter into commercial activity as a

matter of choice, the limits they accept on their own conduct as a matter of conscience and

faith are not to be superimposed on the statutory schemes which are binding on others in

that activity.” 455 U.S. 252, 261, 102 S. Ct. 1051, 1057 (1982) (declining to relieve Amish

employer of obligation to pay Social Security taxes, despite acceptance of contention that

both receipt and payment of Social Security benefits violates Amish faith); see also Braunfeld v.

Brown

, 366 U.S. 599, 605, 81 S. Ct. 1144, 1147 (1961) (statute that criminally proscribed sale of

various retail goods on Sunday did not impermissibly interfere with free exercise rights of

Jewish shopkeepers, although statute imposed extra cost on Jewish shopkeepers inNo. 13

‐ 1077 Page 11

particular because their religious faith compelled them to close shops on Saturday: “the

statute at bar does not make unlawful any religious practices of appellants; the Sunday law

simply regulates a secular activity and, as applied to appellants, operates so as to make the

practice of their religious beliefs more expensive”).

State nondiscrimination statutes, for example, may require a landlord to rent housing

to an unmarried couple despite the landlord’s belief that cohabitation outside of marriage is

a sin. See Thomas v. Anchorage Equal Rights Comm’n

, 102 P.3d 937 (Alaska 2004) (declining to

overrule Swanner v. Anchorage Equal Rights Comm’n

, 874 P.2d 274 (Alaska 1994)); Smith v. Fair

Emp’t & Hous. Comm’n

, 913 P.2d 909 (Cal. 1996); contra

, Attorney Gen. v. Desilets

, 636 N.E.2d

233 (Mass. 1994). They may obligate a church

‐ affiliated school

– which could have sought

the protection of a statutory exemption but had not

– to retain a schoolteacher in its employ

after she gives birth to a child, notwithstanding a religious belief that a woman with

preschool

‐ aged children belongs in the home and not the workplace. See McLeod v.

Providence Christian Sch.

, 408 N.W.2d 146 (Mich. App. 1987). They may forbid the evangelical

owners of a closely

‐ held, for

‐ profit company from making hiring, promotion, and discharge

decisions based on the marital status and religion of prospective and current employees,

despite the owners’ belief that they must observe the teachings of God in the conduct of their

business, including a Biblical mandate not to work with “unbelievers.” State by McClure v.

Sports & Health Club, Inc.

, 370 N.W.2d 844 (Minn. 1985). They may require a photography

business to photograph a same

‐ sex commitment ceremony, notwithstanding the owners’

belief that marriage is a sacred union between members of the opposite sex. See Elane

Photography, LLC v. Willock

, 284 P.3d 428 (N.M. App. 2012), cert. granted

, 2012

‐ NMCERT

‐ 8

(N.M. Aug. 16, 2012). They may oblige a medical practice to provide fertility services to a

lesbian couple, notwithstanding the religious objections of one or more of its physicians to

doing so. See N. Coast Women’s Care Med. Grp., Inc. v. San Diego Cnty. Superior Court

, 189 P.3d

959 (Cal. 2008). 4

In these ways and many others, a business owner complying with statutes of general

application may be compelled to employ, transact business with, and otherwise provide

4 Some cases in this line do conclude that application of a nondiscrimination statute can

meaningfully interfere with the religious liberties of a business owner. E.g.

, McClure

, 370 N.W.2d at

852 (relying on state agency’s concession that statute abridged the business owners’ religious

beliefs). However, the cases also consistently emphasize the importance of an owner’s voluntary

decision to engage in commercial activity, whether as a reason why any burden imposed by such

statutes on their religious beliefs and practices should be viewed as minimal, or as a reason why that

burden, even if substantial, is outweighed by the State’s compelling interest in eradicating

discrimination. Id. at 853; see also

, e.g.

, Smith

, 913 P.2d at 928

‐ 29; Swanner

, 874 P.2d at 283; Elane

Photography

, 284 P.3d at 443

‐ 44.No. 13

‐ 1077 Page 12

goods, services, and benefits to people whose status, beliefs, or conduct are inconsistent with

the owner’s religious beliefs and practices. In evaluating the burden that such requirements

impose on a business owner’s religious liberties, one must distinguish between an owner’s

commercial conduct and his religious beliefs and conduct. Requiring a secular business over

the religious objection of its owner to do something in the commercial sphere that is required

of nearly all such businesses ordinarily does not require the owner to abandon his religious

tenets, to endorse conduct or express an opinion that is contrary to his religious beliefs, or to

modify his private conduct as a religious observant. See Swanner

, 874 P.2d at 283 (“It is

important to note that any burden placed on Swanner ʹ s religion by the state and municipal

interest in eliminating discrimination in housing falls on his conduct and not his beliefs.

Here, the burden on his conduct affects his commercial activities.”); McClure

, 370 N.W.2d at

853 (finding that the burden on business owners’ religious interests was justified by State’s

interest in eradicating discrimination: “Sports and Health is not a religious corporation

– it is

a Minnesota business corporation engaged in business for profit. By engaging in this secular

endeavor, appellants have passed over the line that affords them absolute freedom to

exercise their religious beliefs.”).

The contraception mandate, as applied to Grote Industries, does not compel the

Grotes to personally engage in or endorse conduct of which they disapprove on religious

grounds: they need not use contraception, speak approvingly of it, or refrain from

discouraging the use of contraception by others. See Conestoga Wood Specialties

, 2013 WL

140110, at *14; Grote Indus.

, 2012 WL 6725905, at *5

‐ *6; O’Brien

, 2012 WL 4481208, at *6. All

that the mandate requires is that the Grote Industries health plan permit individual

employees, in consultation with their physicians, to decide to use FDA

‐ approved

contraceptives and pay for the use of those contraceptives. The Grotes know that their

company’s health plan must cover contraception, and that one or more of their employees

may decide to take advantage of that coverage, and that the health plan is therefore

subsidizing a practice, by others, of which they disapprove.

To the extent this burdens the Grotes’ religious interests, it is worth considering

whether the burden is different in kind from the burden of knowing that an employee might

be using his or her Grote Industries paycheck (or money in a healthcare reimbursement

account) to pay for contraception him or herself. See Conestoga Wood Specialties

, 2013 WL

140110, at *13; Autocam Corp. v. Sebelius

, 2012 WL 6845677, at *6 (W.D. Mich. Dec. 24, 2012).

The likely response is that in the latter scenario, once a paycheck is handed over to the

employee, the money is his or hers to use as desired, and any connection to the Grotes

– and

thus any burden on their religious interests

– is severed. But consider that health insurance

is an element of employee compensation. See 30 C.J.S. Employer

‐ Employee § 176 (Westlaw

through 2012); Dana Shilling, L AWYERS D ESK B OOK

, Medical Insurance § 3.07 (2012); see also

,

e.g.

, Tatom v. Ameritech Corp.

, 305 F.3d 737, 739 (7th Cir. 2002); Doe v. Blue Cross & Blue ShieldNo. 13

‐ 1077 Page 13

United of Wis.

, 112 F.3d 869, 874 (7th Cir. 1997). How an employee independently chooses to

use that insurance arguably may be no different in kind from the ways in which she decides

to spend her take

‐ home pay. See Autocam

, 2012 WL 6845677, at *6. The likeness is easy to see

when the employer purchases health coverage from an insurer: once the coverage is

purchased and the employee is named as a beneficiary, the employer has conveyed the

benefit to the employee, and it is up to the employee and her physician (not to mention the

insurer) how she will use that coverage.

The situation may seem different when the employer chooses instead to self

‐ fund the

health care plan, in that the employer rather than an insurer is paying the bills and there is

thus a more direct monetary link between the employer and whatever medical care that the

employee is choosing for herself. But is the difference material? Either way, the employee is

making wholly independent decisions about how to use an element of her compensation.

Conestoga Wood Specialties

, 2013 WL 140110, at *13

‐ *14; Autocam

, 2012 WL 6845677, at *6. And

either way, although the employer knows that certain services to which it has religious

objections are covered by the plan, it plays no role in an employee’s decision whether or not

to use those services, it is not the provider of those services (as it might be if it were

providing health care through a company

‐ owned clinic), and it is not endorsing those

services. See Cedric Kuschner Promotions

, supra

, 533 U.S. at 163, 121 S. Ct. at 2091

(“linguistically speaking, the employee and the corporation are different persons, even

where the employee is the corporations’ sole owner”).

The Supreme Court’s decision in Zelman v. Simmons

‐ Harris

, 536 U.S. 639, 652, 122 S.

Ct. 2460, 2467 (2002), is, as one academic has pointed out, a helpful reference point in

evaluating the nexus between an employer’s funding of a health plan and the healthcare

decisions an employee makes pursuant to that plan. See Caroline Mala Corbin, The

Contraception Mandate

, 107 N.W. U NIV

. L. R EV

. C OLLOQUY 151, 158

‐ 59 (Nov. 27, 2012). Zelman

dealt with an Establishment Clause challenge to a pilot school “scholarship” or voucher

program in Ohio. Of the more than 3,700 students who participated in the program during

one school year, 96 percent of them used the vouchers to enroll at religious

‐ affiliated schools.

536 U.S. at 647, 122 S. Ct. at 2464. Among other arguments, Ohio taxpayers contended that

the program violated the Establishment Clause for two reasons: (1) notwithstanding the

private choices made by voucher recipients, the flow of voucher funds to religious schools

was properly attributable to the State, such that even if the program had a legitimate secular

purpose, it nonetheless had the impermissible effect of advancing religion; and (2) the

program gave rise to a public perception that the State was endorsing religious practices and

beliefs. Brief for Respondents Simmons

‐ Harris et al., 2001 WL 1636772 at *12, *37

‐ *38. The

Court rejected these arguments, emphasizing that the voucher program was one of “true

private choice.” 536 U.S. at 563, 122 S. Ct. at 2467.No. 13

‐ 1077 Page 14

[W]here a government aid program is neutral with respect to religion, and

provides assistance directly to a broad class of citizens who, in turn, direct

government aid to religious schools wholly as a result of their own genuine

and independent private choice, the program is not readily subject to

challenge under the Establishment Clause. A program that shares these

features permits government aid to reach religious institutions only by way of

the deliberate choices of numerous individual recipients. The incidental

advancement of a religious mission, or the perceived endorsement of a

religious message, is reasonably attributable to the individual recipient, not to

the government, whose role ends with the disbursement of benefits.

Id. at 652, 122 S. Ct. at 2467. The Court added that “no reasonable observer would think a

neutral program of private choice, where state aid reaches religious schools solely as a result

of the numerous independent decisions of private individuals, carries with it the imprimatur

of government endorsement.” Id. at 655, 122 S. Ct. at 2468. 5

The Zelman decision supports an argument that independent decisionmaking by an

insured employee and her physician severs the connection between the employer’s funding

of a health care plan and the use of plan money to pay for contraceptives. I recognize, of

course, that because Zelman was an Establishment Clause case, it was addressing concerns

different from those that the Grotes, as private citizens with protected religious interests, are

asserting here. Nonetheless, I think Zelman is relevant to the extent it recognizes that the

purchase of a good or service is not necessarily attributable to the person who supplies the

money, when the decision to make the purchase belongs entirely to another individual. See

Korte v. U.S. Dep’t of Health & Human Servs.

, 2012 WL 6553996, at *10 (“Any inference of

support for contraception stemming from complying with the neutral and generally

applicable mandate is a de minimus burden.”).

5 See also Zobrest v. Catalina Foothills Sch. Dist.

, 509 U.S. 1, 10, 113 S. Ct. 2462, 2467 (1993)

(providing publicly

‐ funded interpreter for deaf student attending Catholic high school did not

violate Establishment Clause: “The service at issue in this case is part of a general government

program that distributes benefits neutrally to any child qualifying as disabled under the

[Individuals With Disabilities Education Act, 20 U.S.C. § 1400 et seq. ], without regard to the

‘sectarian

‐ nonsectarian, or public

‐ nonpublic nature’ of the school the child attends. By according

parents freedom to select a school of their choice, the statute ensures that a government

‐ paid

interpreter will be present in a sectarian school only as a result of the private decision of individual

parents. In other words, because the IDEA creates no financial incentive for parents to choose a

sectarian school, an interpreter’s presence there cannot be attributed to state decisionmaking.

. . .”).No. 13

‐ 1077 Page 15

Again, the Grotes can and do argue that because Grote Industries’ health plan is self

‐

funded, they

– through their businesses

– are paying directly for contraceptive care rather

than handing employees a voucher that they can use as they wish. I would simply add that

the decision whether to self

‐ fund a health plan rather than to purchase coverage from an

insurance carrier (which would be closer to a voucher) is a decision made by the employer,

likely in part or in whole for economic reasons. One effect of that arrangement, voluntarily

undertaken by the employer, is that it places the employer financially closer to the

employee’s healthcare choices. Thus, to the extent the self

‐ funded nature of a health plan is a

“crucial” factor in determining whether the plan’s mandated coverage of contraceptive care

burdens an employer’s religious liberties, see Tyndale House Publishers

, 2012 WL 5817323, at

*13, one ought to acknowledge that the self

‐ funding arrangement is one of the employer’s

making

– and possibly one having little or nothing to do with the employer’s religious beliefs

– rather than the government’s. See Autocam

, 2012 WL 6845677, at *6 & n.1.

Bd. of Regents of Univ. of Wis. Sys. v. Southworth

, 529 U.S. 217, 120 S. Ct. 1346 (2000), is a

second precedent that should be considered on the subject of funding. At issue in Southworth

was a segregated activity fee that all students at the University of Wisconsin were required to

pay to support various campus services and activities. One portion of that fee was allocated

to support the activities of more than 600 registered student organizations, some of which

engaged in political and ideological expression. Organizations primarily obtained funding

by applying to one of two funds administered by the student government, which reviewed

such applications on a viewpoint

‐ neutral basis. Students who objected to this arrangement

filed suit contending that funding the student organizations by means of a dedicated,

mandatory fee violated their First Amendment right to free speech; they argued that the

university was obligated to give them the choice not to fund student organizations which

engaged in political and ideological expression that was contrary to their personal beliefs.

In Southworth v. Grebe

, 151 F.3d 717 (7th Cir. 1998), this court agreed that the fee

system violated the student’s free speech rights, relying on such compelled

‐ speech

precedents as Abood v. Detroit Bd. of Educ.

, 431 U.S. 209, 97 S. Ct. 1782 (1977) (union member

cannot be compelled to pay service fee used by union to support political candidates and

express political views unrelated to its duties as bargaining representative of employees),

and Keller v. State Bar of Cal.

, 496 U.S. 1, 110 S. Ct. 2228 (1990) (although lawyer could be

compelled to join state bar association and fund activities germane to association’s

regulatory mission, he could not be required to fund association’s political expression). We

observed:

The students, like the objecting union members in Abood

, have a First

Amendment interest in not being compelled to contribute to an organization

whose expressive activities conflict with one ʹ s “freedom of belief.” Glickman [ v.No. 13

‐ 1077 Page 16

Wileman Bros. & Elliott, Inc. ], 521 U.S. [457] at [471], 117 S. Ct. [2130] at 2139

[(1997)]. And here, unlike Glickman

, requiring the students to pay the

mandatory student activity fees does engender a crisis of conscience. Glickman

,

117 S. Ct. at 2130. Finally, in the words of the Glickman Court: “compelled

contributions for political purposes

... implicated First Amendment interests

because they interfere with the values lying at the ‘heart of the First

Amendment[—]the notion that an individual should be free to believe as he

will, and that in a free society one ʹ s beliefs should be shaped by his mind and

his conscience rather than coerced by the State.’ ” Id. at 2139 (quoting Abood

,

431 U.S. at 234–35, 97 S. Ct. 1782). In essence, allowing the compelled funding

in this case would undermine any right to “freedom of belief.” We would be

saying that students like the plaintiffs are free to believe what they wish, but

they still must fund organizations espousing beliefs they reject. Thus, while

they have the right to believe what they choose, they nevertheless must fund

what they don ʹ t believe.

151 F.3d at 731 (footnote omitted).

The Supreme Court unanimously reversed our holding. The Court recognized at the

start “that the complaining students are being required to pay fees which are subsidies for

speech they find objectionable, even offensive.” 529 U.S. at 230, 120 S. Ct. at 1354. It further

acknowledged that the students’ First Amendment objection to funding such speech

followed logically from cases such as Abood and Keller

. Id. at 231, 120 S. Ct. at 1355. Yet, the

Court was unwilling to require the university to permit students to opt out of funding

organizations whose speech they found objectionable. A university could voluntarily elect to

grant students such an opportunity, the Court noted, but it was not constitutionally

compelled to do so. Id. at 232, 120 S. Ct. at 1355

‐ 56. The Court did agree and affirm that the

University was required to protect its students’ First Amendment interests. Id. at 233, 120 S.

Ct. at 1356. But doing so did not require the University to relieve students of the obligation

to pay the fee used to fund objectionable speech, the Court reasoned. Rather, looking to

public forum precedents, id. at 229

‐ 30, 120 S. Ct. at 1354, the Court concluded that “[t]he

proper measure, and the principal standard of protection for objecting students,

. . . is the

requirement of viewpoint neutrality in the allocation of funding support,” id. at 233, 120 S.

Ct. at 1356

. The Court explained that, given the university’s goal of fostering open

discussion by and among students, viewpoint neutrality in funding student speech

represented “the justification for requiring the student to pay fee in the first instance and for

ensuring the integrity of the program’s operation once the funds have been collected.” Ibid.

It would protect students by ensuring “that minority views are treated with the same respect

as are majority views,” and consequently that all students were given access to the forum of

extracurricular student activities, id. at 235, 120 S. Ct. at 1357, and by preventing anyNo. 13

‐ 1077 Page 17

erroneous impression that any individual student organization speaks for the university, id.

at 233, 120 S. Ct. at 1356 (quoting Rosenberger v. Rector & Visitors of Univ. of Va.

, 515 U.S. 819,

841, 115 S. Ct. 2510, 2523 (1995)). As it was stipulated that funding requests submitted by

student organizations to the student government at the University of Wisconsin were,

indeed, reviewed on a viewpoint neutral basis, the Court concluded that the university’s

funding system was consistent with the First Amendment. Id. at 234, 120 S. Ct. at 1356. 6

Although Southworth

, too, may be distinguished from this case, which concerns a

religious objection to funding a particular category of medical care, it nonetheless has some

relevance to the Grotes’ claims. Southworth recognizes that the compulsion to fund speech by

others that an individual finds objectionable does not invariably constitute a violation of his

own right to free speech; rather, so long as one is paying into a fund from which the

expression of a variety of viewpoints is funded on a neutral basis, the rights of the individual

paying into that fund are sufficiently protected. The Grotes, of course, are objecting to

funding contraception, not speech; but what their company is actually required to fund is a

health insurance plan that covers many medical services, not just contraception. The

obligation to fund a health plan is generally applicable and neutral in the sense that the

services that must be covered by the plan have not been chosen on the basis of religion.

Moreover, the decision as to what services will be used is left to the employee and her

doctor. To the extent the Grotes themselves are funding anything at all

– and as I have

discussed, one must disregard the corporate form to say that they are

– they are paying for a

plan that insures a comprehensive range of medical care that will be used in countless ways

by the hundreds of U.S.

‐ based employees participating in the Grote Industries health plan.

No individual decision by an employee and her physician

– be it to use contraception, treat

an infection, or have a hip replaced

– is in any meaningful sense the Grotes’ decision or

action. See Southworth

, 529 U.S. at 239

‐ 40, 120 S. Ct. at 1359 (Souter, J., concurring in the

judgment) (distinguishing use of activity to fee to “indirectly fund[ ] the jumble of other

speakers’ messages” from cases in which government “restrict[s] or modif[ies] the message a

student wishes to express,” “require[s] an individual to bear an offensive statement

personally,” or compels the objecting individual “to affirm a moral or political

commitment”).

6 There was an alternative means by which student organizations might seek funding

through a student referendum process. The Court noted that “[t]o the extent the referendum

substitutes majority determinations for viewpoint neutrality it would undermine the constitutional

protection the program requries.” Id. at 235, 120 S. Ct. at 1357. As the record was not well

‐ developed on this avenue of funding, the Court therefore remanded the case for further exploration

of that point. Id. at 235

‐ 36, 120 S. Ct. at 1357.No. 13

‐ 1077 Page 18

The significance of private decisionmaking by the insured employee is worth

discussing in one last respect. Heretofore, there has a been a general understanding that an

employer, by virtue of paying (whether in part or in whole) for an employee’s health care,

does not become a party to the employee’s health care decisions: the employer acquires no

right to intrude upon the employee’s relationship with her physician and participate in her

medical decisions, nor, conversely, does it incur responsibility for the quality and results of

an employee’s health care if it is not actually delivering that care to the employee. This

litigation seeks in a sense to upend that traditional understanding, by postulating that when

a company insures its employees’ health care, a company owner indeed is a party to that

care, with a cognizable religious interest in what services are made available to the

employee.

The obligation to pay for contraceptive coverage is the current hot topic in federal

litigation, 7 because the federal contraception mandate is new. 8 But contraceptive care is by

no means the sole form of health care that implicates religious concerns. To cite a few

examples: artificial insemination and other reproductive technologies; genetic screening,

counseling, and gene therapy; preventative and remedial treatment for sexually

‐ transmitted

diseases; sex reassignment; vaccination; organ transplantation from deceased donors; blood

transfusions; stem cell therapies; end

‐ of

‐ life care, including the initiation and termination of

life support; and, for some religions, virtually all conventional medical treatments. If the

RFRA entitles the controlling shareholder of a corporation to exclude coverage for

contraceptive care from the company’s health plan on the basis of his religious beliefs, then,

as I noted in Korte v. Sebelius

, 2012 WL 6757353, at *5, and Judge Barker noted below, see Grote

Indus.

, 2012 WL 6725905, at *6, I can see no reason why coverage for any number of medical

7 By one judge’s count, some forty lawsuits have been filed challenging the mandate. See

Catholic Diocese of Peoria v. Sebelius

, 2013 WL 74240, at *1 & n.1 (C.D. Ill. Jan. 4, 2013) (coll. cases).

8 Parallel mandates applicable to insurers and group insurance plans have existed at the

state level for a number of years. Beginning with Maryland in 1998, some twenty

‐ eight States had

adopted mandates requiring insurers to include coverage of prescription contraceptives by the time

the federal mandate took effect in 2012. See National Women’s Law Center, Guaranteeing Coverage of

Contraceptives: Past & Present (Aug. 1, 2012), available at http://www.nwlc.org/resource/

guaranteeing

‐ coverage

‐ contraceptives

‐ past

‐ and

‐ present (last visited Jan. 27, 2013); Guttmacher

Institute, S TATE P OLICIES IN B RIEF

, Insurance Coverage of Contraceptives (as of Jan. 1, 2013), available at

http://www.guttmacher.org/statecenter/spibs/spib_ICC.pdf (last visited Jan. 27, 2013). Due in part to

these mandates, nine in ten employer

‐ based insurance plans were already covering prescription

contraceptives by that time. Guttmacher Institute, F ACT S HEET

, Contraceptive Use in the United States

,

at 4 (July 2012), available at http://www.guttmacher.org/pubs/fb_contr_use.html (last visited Jan. 27,

2012).No. 13

‐ 1077 Page 19

services could not also be excluded from a workplace health plan on the same basis. In part,

this is a point that addresses a separate consideration under the RFRA

– whether there are

reasonable alternatives to requiring employer

‐ sponsored coverage of the objected

‐ to form of

care, and thus whether the insurance mandate is the least restrictive means of ensuring

access to that care. See 42 U.S.C. § 2000bb

‐ 1(b)(2). But I think it also helps to place in context

the nature of the burden that is being asserted in this litigation. Medical decisions are made

in private on an individual basis. Any given medical decision, depending on the nature of

the patient’s condition, the available treatments, and the circumstances confronted by doctor

and patient, might be inconsistent with the religious beliefs of one or more owners of the

company that sponsors the patient’s workplace insurance. Holding that a company

shareholder’s religious beliefs and practices are implicated by the autonomous health care

decisions of company employees, such that the obligation to insure those decisions, when

objected to by a shareholder, represents a substantial burden on that shareholder’s religious

liberties, strikes me as an unusually expansive understanding of what acts in the commercial

sphere meaningfully interfere with an individual’s religious beliefs and practices.

These and other issues will be fleshed out as the merits of this appeal are briefed. But

the Grotes have not yet convinced me that whatever burden the contraception mandate

imposes on the exercise of their religious freedom is a substantial burden, in the sense that it

directly affects the exercise of their Catholic faith. See Conestoga Wood Specialties

, 2013 WL

140110, at *14; Annex Med., Inc. v. Sebelius

, 2013 WL 101927, at *4

‐ *5 (D. Minn. Jan. 8, 2013);

Grote Indus.

, 2012 WL 6725905, at *5

‐ *6; Autocam

, 2012 WL 6845677, at *6

‐ *8; Korte v. U.S.

Dep’t of Health & Human Servs.

, 2012 WL 6553996, at *10

‐ *11; Hobby Lobby

, 870 F. Supp. 2d at

1294

‐ 96. I therefore do not believe that they are entitled to preliminary injunctive relief

pending the resolution of their appeal.

I respectfully dissent.