William Grote, III v. Kathleen Sebe

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
January 30, 2013 Œ
Before
JOEL M. FLAUM, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 13-1077
W ILLIAM D. G ROTE, III, et al.,
Plaintiffs-Appellants,
v.
K ATHLEEN 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, New Albany Division.
No. 4:12-cv-00134-SEB-DML—Sarah Evans Barker, Judge.
Œ
This order was initially released in typescript.
2 No. 13-1077
ORDER
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.
3. PLAINTIFFS-APPELLANTS’ REPLY IN SUPPORT
OF THEIR MOTION FOR AN INJUNCTION PEND-
ING 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 regula-
tions that require Grote Industries to provide coverage
for contraception and sterilization procedures in its
group health-insurance plan.1 They have moved for an
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 Indus-
tries 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,
(continued...)
No. 13-1077 3
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
1
(...continued)
fully own Grote Industries, Inc. This entity, in turn, serves as
the managing member of Grote Industries, LLC.
4 No. 13-1077
follows: The ACA requires nongrandfathered and nonex-
empt group health-insurance plans to cover certain pre-
ventive health services without cost-sharing, see 42 U.S.C.
§ 300gg-13(a)(4), and regulations promulgated by the
United States Department of Health 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 man-
date”). 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/ForConsum ers/
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 contracep-
tion, 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
No. 13-1077 5
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 Restora-
tion 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. Grote Indus., LLC
v. Sebelius, 2012 WL 6725905, at *1 (S.D. Ind. Dec. 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 dis-
trict court. On January 3, 2013, the district court, aware
of our decision in Korte, denied the motion for recon-
sideration. 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. Grote Indus., LLC v.
Sebelius, 2013 WL 53736, at *1 (S.D. Ind. Jan. 3, 2013).
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
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
(continued...)
6 No. 13-1077
present purposes solely on their RFRA claim.3
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
2
(...continued)
Int’l, Inc. v. Madigan, 500 F.3d 544, 547-48 (7th Cir. 2007). The
moving party must establish that it has “(1) no 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 7
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 man-
date 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 (col-
lectively, “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 likeli-
hood 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. Absent an in-
junction, the Grote Family and Grote Industries must
now cover abortifacient drugs, contraception, and ster-
ilization through the company’s self-insured health
plan. Thus, the only factual distinctions between the two
8 No. 13-1077
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 man-
date 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 sub-
stantially 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 argu-
ments as it did in Korte. To abbreviate, the govern-
ment 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 contracep-
tion benefits is made by third parties—individual em-
ployees, 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.
No. 13-1077 9
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, id. at *2-5, 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.
I T IS O RDERED that the motion for an injunction
pending appeal is G RANTED . The defendants are
enjoined pending resolution of this appeal from
enforcing the contraception mandate against the Grote
Family and Grote Industries.
IT IS F URTHER O RDERED that this case is consolidated
with Korte. Oral argument will be scheduled by separate
order when briefing has been completed.
10 No. 13-1077
R OVNER, 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) (unpub-
lished 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,
No. 13-1077 11
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), sub-
stantially 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 . . . effec-
tively 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 Amend-
ment, the Supreme Court has found a ‘substantial bur-
den’ to exist when the government puts ‘substantial
pressure on an adherent to modify his behavior and to
violate his beliefs.’ ”) (quoting Hobbie v. Unemployment
Appeals Comm’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 plain-
tiffs 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 corpo-
rate 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 manu-
facture of vehicle safety systems. So far as the limited
record before us reveals, it has stated no religious goals
12 No. 13-1077
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 gov-
ernment policies it supports or opposes and to spend
money in the political arena in pursuit of its com-
mercial 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 judg-
ment) (“it is . . . conceivable that some for-profit activities
No. 13-1077 13
could have a religious character”).1 Indeed, there is a
regulatory exemption from the contraception mandate
for 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 busi-
ness, 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,
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 of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e et seq. (“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 incorporation) with LeBoon v. Lancaster Jewish Community
Center Ass’n, 503 F.3d 217, 227-28 (3d Cir. 2007) (finding com-
munity center to be exempt from Title VII as religious organi-
zation in view of, inter alia, its not-for-profit nature, recogni-
tion in articles of incorporation and bylaws that its purpose
was to “enhance and promote Jewish identity, life, and continu-
ity,” 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).
14 No. 13-1077
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’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 prov-
ince 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 them-
selves and the companies they own. 2 But there is a dis-
tinction, 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 assess-
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 15
ing 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’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 signif-
icantly limits the Grotes’ liability; the corporations, unlike
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 Indus-
tries 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 com-
pany’s employees; and it is that health plan which is
now obligated by the Affordable Care Act and resulting
regulations to provide 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 em-
ployee benefit plan may sue or be sued under this
subchapter as an entity.”).3 It is worth adding that the
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
(continued...)
16 No. 13-1077
Privacy Rule incorporated into the regulations promul-
gated 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 obliga-
tion 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.,
3
(...continued)
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 17
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, 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 consulta-
tion with their physicians as to what covered services
they will use. Any burden imposed on the Grotes indi-
vidually 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.
18 No. 13-1077
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 In-
dustries’ 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 busi-
ness 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 con-
victions. The Grotes have voluntarily elected to engage
No. 13-1077 19
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 com-
mercial 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 in 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 prac-
tice 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.
20 No. 13-1077
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, not-
withstanding 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
4
Some cases in this line do conclude that application of a
nondiscrimination statute can meaningfully interfere with the
(continued...)
No. 13-1077 21
In these ways and many others, a business owner
complying with statutes of general application may be
compelled to employ, transact business with, and other-
wise provide 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 be-
tween 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’s religion
4
(...continued)
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 the owner’s 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.
22 No. 13-1077
by the state and municipal interest in eliminating dis-
crimination 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 Indus-
tries, does not compel the Grotes to personally engage
in or endorse conduct of which they disapprove on reli-
gious 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 contracep-
tives. 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 sub-
sidizing 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
No. 13-1077 23
different in kind from the burden of knowing that an
employee might be using his or her Grote Industries
paycheck (or money in a health care 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 com-
pensation. See 30 C.J.S. Employer-Employee § 176 (West-
law 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 Shield 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 physi-
cian (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
24 No. 13-1077
and there is thus a more direct monetary link between
the employer and whatever medical care that the em-
ployee is choosing for herself. But is the difference mate-
rial? Either way, the employee is making wholly indep-
endent 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 corporation’s
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 health care 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.
No. 13-1077 25
at 647, 122 S. Ct. at 2464. Among other arguments,
Ohio taxpayers contended that the program violated
the Establishment Clause for two reasons: (1) notwith-
standing 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 percep-
tion 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.
[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 gov-
ernment aid to religious schools wholly as a result
of their own genuine and independent private
choice, the program is not readily subject to chal-
lenge 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.
26 No. 13-1077
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 im-
primatur of government endorsement.” Id. at 655, 122
S. Ct. at 2468.5
The Zelman decision supports an argument that inde-
pendent 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 inter-
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. (“IDEA”)], 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 27
ests, 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 purchase 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.”).
Again, the Grotes can and do argue that because
Grote Industries’ health plan is self-funded, they—through
their businesses—are paying directly for contracep-
tive 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 health care
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.
28 No. 13-1077
Board 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 organiza-
tions, 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, manda-
tory 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 organiza-
tions which engaged in political and ideological expres-
sion 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 students’
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
No. 13-1077 29
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’s “free-
dom of belief.” Glickman [v. 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 pur-
poses . . . implicated First Amendment interests be-
cause they interfere with the values lying at the ‘heart
of the First Amendment[—]the notion that an indi-
vidual should be free to believe as he will, and that
in a free society one’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 neverthe-
less must fund what they don’t believe.
151 F.3d at 731 (footnote omitted).
The Supreme Court unanimously reversed our hold-
ing. The Court recognized at the start “that the complain-
30 No. 13-1077
ing 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 fur-
ther acknowledged that the students’ First Amend-
ment objection to funding such speech followed log-
ically 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 ob-
jectionable. 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 repre-
sented “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 col-
lected.” Ibid. It would protect students by ensuring “that
minority views are treated with the same respect as
No. 13-1077 31
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 any erroneous impression that any indi-
vidual 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 nonethe-
less 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
6
There was an alternative means by which student organiza-
tions 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.
32 No. 13-1077
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. More-
over, 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 employ-
ees participating in the Grote Industries health plan.
No individual decision by an employee and her physi-
cian—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 judg-
ment) (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”).
The significance of private decisionmaking by the
insured employee is worth discussing in one last re-
No. 13-1077 33
spect. Heretofore, there has a been a general under-
standing 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 under-
standing, 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
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, Guaran-
teeing Coverage of Contraceptives: Past & Present (Aug. 1, 2012),
(continued...)
34 No. 13-1077
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 repro-
ductive technologies; genetic screening, counseling, and
gene therapy; preventative and remedial treatment for
sexually-transmitted diseases; sex reassignment; vac-
cination; organ transplantation from deceased donors;
blood transfusions; stem cell therapies; end-of-life care,
including the initiation and termination of life sup-
port; 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 as
Judge Barker noted below, see Grote Indus., 2012 WL
6725905, at *6, I can see no reason why coverage for
any number of medical services could not also be
8
(...continued)
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, 2013).
No. 13-1077 35
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 rea-
sonable 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 con-
text 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 prac-
tices are implicated by the autonomous health care deci-
sions of company employees, such that the obligation
to insure those decisions, when objected to by a share-
holder, represents a substantial burden on that share-
holder’s religious liberties, strikes me as an unusually
expansive understanding of what acts in the com-
mercial sphere meaningfully interfere with an indi-
vidual’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
36 No. 13-1077
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 injunc-
tive relief pending the resolution of their appeal.
I respectfully dissent.
2-12-13