Tyndale House Publishers, Inc. v. Sebelius

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
TYNDALE HOUSE PUBLISHERS, INC., )
et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 12-1635 (RBW)
)
KATHLEEN SEBELIUS, SECRETARY )
OF THE UNITED STATES )
DEPARTMENT OF HEALTH AND )
HUMAN SERVICES, et al., )
)
Defendants. )
____________________________________)
MEMORANDUM OPINION
The plaintiffs, Tyndale House Publishers, Inc. and its president and CEO, Mark D.
Taylor, challenge the application of the regulations and penalties relating to an employer’s
obligation to cover contraceptives under an employer health plan pursuant to the Patient
Protection and Affordable Care Act (the “ACA”), Pub. L. No. 111-148, 124 Stat. 119 (2010), 1 as
violating the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb-1 (2006), the
Free Exercise, Establishment, and Free Speech Clauses of the First Amendment, U.S. Const.
amend. I, the Due Process Clause of the Fifth Amendment, U.S. Const. amend. V, and the
Administrative Procedure Act (“APA”), 5 U.S.C. §§ 553(b)-(c), 706(2)(A), 706(2)(D) (2006).
See generally Verified Complaint (“Compl.”). Currently before the Court is the plaintiffs’
1
The plaintiffs refer to the “collection of regulations and [] penalties” promulgated under the ACA as outlined in 77
Fed. Reg. 8725, 8729 (Feb. 15, 2012), as well as agency guidance issued in connection with the regulations, as “the
Mandate.” Plaintiffs’ Memorandum of Law (“Pls. Mem.”) at 4; see also Compl. ¶ 4 n.1 (specifying the statutes,
regulations, and regulatory guidance that comprise “the Mandate”). For the sake of clarity, the Court will refer to
these provisions collectively as the “contraceptive coverage mandate.”
1
Motion for Preliminary Injunction (“Pls.’ Mot.”). For the reasons explained below, the
plaintiffs’ motion will be granted. 2
I. BACKGROUND
A. The Affordable Care Act
Enacted in March 2010, the ACA requires group health plans to provide women with
“preventive care and screenings” without imposing any cost-sharing requirements on the plan
beneficiaries. See 42 U.S.C. § 300gg-13(a)(4) (Supp. 2010). Specifically, the ACA requires that
non-grandfathered 3 group or individual health plans and health insurance issuers cover without
“impos[ing] any cost sharing requirements . . . such additional preventive care and screenings
[for women] . . . as provided for in comprehensive guidelines supported by the Health Resources
and Services Administration [(“HRSA”)].” Id.
The Department of Health and Human Services (“HHS”) tasked the Institute of Medicine
(“Institute”) with developing recommendations to implement the requirement to provide
preventive services for women. Institute of Medicine, Clinical Preventive Services for Women:
Closing the Gaps 2 (2011) (“Institute Report”). The HRSA adopted the Institute’s
recommendations on August 1, 2011, which included a provision requiring “the full range of
[FDA]-approved contraceptive methods, sterilization procedures, and patient education and
2
In addition to the filings already identified, the Court considered the following submissions made by the parties:
(1) the plaintiffs’ Memorandum of Law in support of their motion (“Pls.’ Mem.”); (2) the Defendants’ Opposition to
Plaintiffs’ Motion for Preliminary Injunction (“Defs.’ Opp’n”); (3) the plaintiffs’ Reply in Support of Motion for
Preliminary Injunction (“Pls.’ Reply”); (4) the Memorandum of the American Civil Liberties Union and the
American Civil Liberties Union of the National Capital Area, as Amici Curiae; and (5) the Plaintiffs’ Response to
Third Parties the American Civil Liberties Union and the American Civil Liberties Union of the National Capital
Area, as Amici Curiae.
3
Grandfathered plans are those that existed as of March 23, 2010, have continuously covered at least one person,
and have not since undergone any of the changes outlined in 45 C.F.R. § 147.140(g)(2) (2010). Because of a
number of changes to the coverage provided to plan participants under the plaintiffs’ health care plan, Compl. ¶¶
121-28, the plaintiffs’ plan is not grandfathered.
2
counseling for women with reproductive capacity.” Id. at 20-22, 109-10. HHS subsequently
promulgated regulations implementing the Institute’s recommendations, under which all health
insurance plans and policies (except those grandfathered or otherwise exempt) are required to
comply with the contraceptive coverage mandate starting with the plan years beginning on or
after August 1, 2012. 76 Fed. Reg. 46621-01 (Aug. 3, 2011).
Among other exemptions, the regulations exempt from the contraceptive coverage
mandate certain “religious employers,” defined as employers having each of the following
characteristics:
(1) The inculcation of religious values is the purpose of the organization.
(2) The organization primarily employs persons who share the religious tenets of
the organization.
(3) The organization serves primarily persons who share the religious tenets of the
organization.
(4) The organization is a nonprofit organization as described in section 6033(a)(1)
and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as
amended.
45 C.F.R. § 147.130(a)(1)(iv)(B). In response to concerns from various organizations with
religious objections to the contraceptive coverage mandate but which did not fit the definition of
religious employer, “the Departments of Health and Human Services, Labor, and the Treasury []
propose[d] amendments to regulations regarding” the contraceptive coverage mandate in an
Advance Notice of Proposed Rulemaking (“Advance Notice”). 77 Fed. Reg. 16501-01 (Mar. 21,
2012). The agencies stated in the Advance Notice that the religious employer exemption would
be broadened. Id. In addition to the Advance Notice, HHS also issued guidance outlining a safe
harbor for certain non-profit employers with religious objections to the contraceptive coverage
mandate. See Ctr. for Consumer Info. & Ins. Oversight and Ctrs. for Medicare & Medicaid
Servs., Guidance on the Temporary Enforcement Safe Harbor for Certain Employers (February
3
10, 2012), available at http://cciio.cms.gov/resources/files/Files2/02102012/20120210-
Preventive-Services-Bulletin.pdf, and (August 15, 2012), available at
http://cciio.cms.gov/resources/files/prev-services-guidance-08152012.pdf. The guidance grants
certain non-profit employers with religious objections to the contraceptive coverage mandate an
exemption from application of the mandate until August 1, 2013, by which time HHS expects to
have finalized new rules and regulations broadening the definition of religious employer. 77
Fed. Reg. 16501-01.
Employers subject to the contraceptive coverage mandate face fines, penalties, and
enforcement actions for non-compliance. See 29 U.S.C. § 1132(a) (civil enforcement actions by
the Department of Labor and insurance plan participants); 26 U.S.C. § 4980D(a), (b) (penalty of
$100 per day per employee for noncompliance with coverage provisions of the ACA); 26 U.S.C.
§ 4980H (annual tax assessment for noncompliance with requirement to provide health
insurance).
B. The Plaintiffs’ Factual Allegations
The first named plaintiff, Tyndale House Publishers, Inc. (“Tyndale”), is a Christian
publishing company founded in 1962 by Dr. Kenneth Taylor and his wife, Margaret Taylor.
Compl. ¶ 21. Initially founded to publish “Kenneth Taylor’s modern paraphrase of portions of
the New Testament” of the Bible, the company today “publishes a wide array of Christian books
ranging from Bible commentaries to books about family issues to Christian fiction.” Id. ¶ 24.
The publishing company employs 260 full-time employees, and provides them with health
insurance through a self-insured health plan. Id. ¶¶ 71-73.
4
Tyndale is 96.5% owned by the Tyndale House Foundation (the “Foundation”), a non-
profit religious entity. Id. ¶¶ 41-42, 45. Of the shares owned by the Foundation, “just over
8.4%” are voting shares. Id. ¶ 45. “The Foundation receives 96.5% of all of Tyndale’s
distributed profits,” amounting to $38.8 million of the $40.2 million in profits since 2001. Id. ¶
47. The Foundation directs much of its proceeds “to various charitable causes.” Id. ¶ 50. In
particular, “[t]he Foundation has used proceeds from Tyndale to benefit such ministries as: a
Christian community center in the Chicago area . . . ; [the] Cabrini Green Legal Aid Clinic . . . ;
and evangelistic work worldwide.” Pls.’ Mem., Exhibit (“Ex.”) 1 (Oct. 8, 2012 Affidavit of
Mark D. Taylor) ¶ 3.
In addition to the shares owned by the Foundation, “a small percentage is owned by [the]
Tyndale Trust.” Compl. ¶ 52. Because the Tyndale Trust holds “84% of the voting shares,”
Tyndale is “primarily directed” by the Tyndale Trust. Id. ¶¶ 2, 52. The same group of
individuals serves both as the trustees of the Tyndale Trust and as the board of directors of
Tyndale House Publishers, and each individual is “required to sign a Statement of Faith each
year to show that they hold certain religious beliefs, which are typically described as evangelical
Christian beliefs.” Id. ¶¶ 55-56.
Two additional Illinois trusts established to “benefit Dr. Kenneth Taylor’s widow and
children,” own “just over 3.4%” of the publishing company’s remaining shares. Id. ¶ 60. The
two trusts “share the beliefs of Tyndale House Publishers, [the] Tyndale House Foundation, and
[the] Tyndale Trust.” Id. ¶ 61.
5
Tyndale, the Foundation, and the three trusts 4 have each adopted almost identical
“statement[s] of belief and policy” outlining their religious beliefs, which include “respect for the
inviolable sanctity of the life of every human being as created in the image and likeness of God
from the moment of conception/fertilization” such that each “supports Tyndale House
Publishers, Inc.’s omission from its employee health plan of any coverage of abortions and of
drugs (e.g., Plan B, ella 5) or devices (e.g., intrauterine devices [“IUDs”]) that can cause the
demise of an already conceived/fertilized human embryo.” Id. ¶¶ 39, 51, 59, 62.
The second named plaintiff, Mark D. Taylor, is the son of Tyndale’s founder, Kenneth
Taylor. Id. ¶ 2. Mark Taylor is the president and CEO of Tyndale and the Foundation, and a
trustee of both the Tyndale Trust and the Kenneth N. Taylor Trust. Id. ¶ 63. In his capacity as
president and CEO of the publishing company and the Foundation, Mark Taylor “is responsible
for their overall operations, including the provision of Tyndale’s health insurance plan.” Id. ¶
65. He shares the same beliefs as the entities described above. Id. ¶ 67.
The contraceptive coverage mandate requires the plaintiffs “to provide and pay for drugs
and devices . . . [that] violate [their] religious beliefs, and [] subjects [the plaintiffs] to heavy
fines and penalties if [they] choose[] not to violate those beliefs.” Id. ¶¶ 3, 5. In particular, the
plaintiffs are required to pay for “drugs (e.g., Plan B, ella) or devices (e.g., intrauterine devices)
that can cause the demise of an already conceived/fertilized human embryo.” Id. ¶¶ 39, 81-82.
The plaintiffs instituted this action on October 2, 2012. By requiring the plaintiffs to
provide for certain contraceptive care, the plaintiffs allege that the defendants have violated their
4
Neither the Foundation, nor any of the trusts, trustees, officers, or directors (with the exception of Mark D. Taylor),
are parties to this action. Instead, Tyndale “asserts its claims on behalf of itself as well as on behalf of its owners, all
of whom share Tyndale’s religious beliefs against the [contraceptive coverage mandate]’s application in this case.”
Compl. ¶ 10.
5
Plan B is commonly known as the “morning after” pill, and ella as the “week after” pill. See Compl. ¶¶ 81-82.
6
rights under the RFRA, and the First and Fifth Amendments to the Constitution of the United
States. Id. ¶ 7. The plaintiffs further allege that the defendants “violated the [APA] by imposing
the [contraceptive coverage mandate] with deliberate disregard of public comments.” Id.
The plaintiffs have now moved for a preliminary injunction. Pls.’ Mot. at i. They assert
that they face imminent harm because their refusal to comply with the ACA will subject them “to
the [contraceptive coverage mandate’s] draconian penalties.” Compl. ¶ 8. Namely, the plaintiffs
claim that they “face[], today, the certain prospect of lawsuits from the Secretary of Labor, fines
and regulatory penalties.” Pls.’ Mem. at 43 (original emphasis). The plaintiffs represent that
they “cannot afford to sustain the fines threatened by the [contraceptive coverage mandate] at
issue in this case.” Pls.’ Mem., Ex. 1 ¶ 4.
II. STANDARD OF REVIEW
“‘A plaintiff seeking a preliminary injunction must establish [1] that [it] is likely to
succeed on the merits, [2] that [it] is likely to suffer irreparable harm in the absence of
preliminary relief, [3] that the balance of equities tips in [its] favor, and [4] that an injunction is
in the public interest.’” Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011) (quoting Winter
v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)) (some alterations in original). Because
it is “an extraordinary remedy,” a preliminary injunction “should be granted only when the party
seeking the relief, by a clear showing, carries the burden of persuasion.” Cobell v. Norton, 391
F.3d 251, 258 (D.C. Cir. 2004) (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)).
The District of Columbia Circuit has applied a “sliding scale” approach in evaluating the
preliminary injunction factors. Sherley, 644 F.3d at 392. Under this analysis,
[i]f the movant makes an unusually strong showing on one of the factors, then it
does not necessarily have to make as strong a showing on another factor. For
example, if the movant makes a very strong showing of irreparable harm and
7
there is no substantial harm to the non-movant, then a correspondingly lower
standard can be applied for likelihood of success . . . Alternatively, if substantial
harm to the nonmovant is very high and the showing of irreparable harm to the
movant very low, the movant must demonstrate a much greater likelihood of
success. It is in this sense that all four factors must be balanced against each
other.
Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291–92 (D.C. Cir. 2009) (internal
quotation marks and citations omitted). 6
III. LEGAL ANALYSIS
Before addressing the merits of the plaintiffs’ claims, the Court first turns to the question
of whether the plaintiffs have standing to pursue their RFRA claim. 7
A. Standing
“Because Article III limits the constitutional role of the federal judiciary to resolving
cases and controversies, a showing of standing ‘is an essential and unchanging’ predicate to any
exercise of [federal] jurisdiction.” Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir.
1996) (en banc) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). “‘The
irreducible constitutional minimum of standing contains three elements: (1) injury-in-fact, (2)
causation, and (3) redressability.’” Nat’l Ass’n of Home Builders v. EPA, 667 F.3d 6, 11 (D.C.
6
Several members of the Circuit have read the Supreme Court's decision in Winter to cast doubt on the continued
validity of the sliding scale approach. See Davis, 571 F.3d at 1296 (Kavanaugh, J, joined by Henderson, J.,
concurring) (“[U]nder the Supreme Court's precedents, a movant cannot obtain a preliminary injunction without
showing both a likelihood of success and a likelihood of irreparable harm, among other things” (emphasis in
original)); Sherley, 644 F.3d at 393 (“Like our colleagues, we read Winter at least to suggest if not to hold ‘that a
likelihood of success is an independent, free-standing requirement for a preliminary injunction.’” (quoting Davis,
571 F.3d at 1296 (concurring opinion))). But the Circuit has had no occasion to decide this question because it has
not yet encountered a post-Winter case where a preliminary injunction motion survived the less rigorous sliding
scale analysis. See Sherley, 644 F.3d at 393 (“We need not wade into this circuit split today because, as in Davis, as
detailed below, in this case a preliminary injunction is not appropriate even under the less demanding sliding-scale
analysis.”). Thus, because it remains the law of this Circuit, the Court must employ the sliding scale analysis here.
7
As will be explained below, the Court finds that the plaintiffs have shown a likelihood of success on the merits of
their RFRA claim, and that the remaining preliminary injunction factors weigh in favor of granting the plaintiffs an
injunction on the basis of that claim. Accordingly, the Court will not address the merits of the plaintiffs’ other
claims.
8
Cir. 2011) (citation omitted). “‘Thus, to establish standing, a litigant must demonstrate a
personal injury fairly traceable to the [opposing party’s] allegedly unlawful conduct [that is]
likely to be redressed by the requested relief.’” Id. (citation omitted).
The parties initially dispute whether Tyndale has standing to raise RFRA and free
exercise claims. 8 According to the defendants, Tyndale is unable to assert such claims on its
own behalf because it is a “for-profit corporation [that] does not exercise religion” within the
meaning of the RFRA and the First Amendment. Defs.’ Opp’n at 8. The plaintiffs respond that
“[t]here is no business or corporation ‘exception’” to the RFRA or the Free Exercise Clause, and
that these provisions protect the religious exercise of any entity, regardless of for-profit status.
Pls.’ Reply at 1-2.
This Court, like others before it, declines to address the unresolved question of whether
for-profit corporations can exercise religion within the meaning of the RFRA and the Free
Exercise Clause. See, e.g., First Nat’l Bank v. Bellotti, 435 U.S. 765, 777-78 n.14 (1978)
(recognizing that corporations have First Amendment speech rights, but declining to “address the
abstract question whether corporations have the full measure of rights that individuals enjoy
under the First Amendment”); Stormans, Inc. v. Selecky, 586 F.3d 1109, 1119 (9th Cir. 2009)
(“We decline to decide whether a for-profit corporation can assert its own rights under the Free
Exercise Clause . . .”); Church of Scientology of Cal. v. Cazares, 638 F.2d 1272, 1280 n.7 (5th
Cir. 1981) (same). Instead, the Court will assess whether Tyndale has standing to assert the free
exercise rights of its owners. 9
8
The parties’ briefs do not focus on plaintiff Mark Taylor’s standing, so the Court will not discuss that issue either.
9
The RFRA “was enacted to reestablish a constitutional test with the expectation that courts would look to
constitutional precedent for guidance.” Vill. of Bensenville v. FAA, 457 F.3d 52, 62 n.3 (D.C. Cir. 2006). Where
appropriate, then, the Court will apply free exercise jurisprudence in determining the plaintiffs’ standing to raise
(continued . . . )
9
i. Tyndale’s Standing to Assert its Owners’ Free Exercise Rights
At least one Circuit Court of Appeals has “held that a corporation has standing to assert
the free exercise right of its owners.” Stormans, 586 F.3d at 1120 (citing EEOC v. Townley
Eng’g & Mfg. Co., 859 F.2d 610, 620 n.15 (9th Cir. 1988)). The Ninth Circuit first recognized
this theory of standing in Townley. The plaintiff in that case was a closely-held manufacturing
company whose owners made a “covenant with God requir[ing] them to share the Gospel with
all of their employees.” Townley, 859 F.2d at 620. It sought an exemption, on free exercise
grounds, from a provision of Title VII of the Civil Rights Act that required it to accommodate
employees asserting religious objections to attending the company’s mandatory devotional
services. Id. at 620. Although the plaintiff urged “the court to hold that it [was] entitled to
invoke the Free Exercise Clause on its own behalf,” the Ninth Circuit deemed it “unnecessary to
address the abstract issue whether a for profit corporation has rights under the Free Exercise
Clause independent of those of its shareholders and officers” because, in its view, “Townley
[was] merely the instrument through and by which Mr. and Mrs. Townley express[ed] their
religious beliefs.” Id. at 619-20. The court reasoned that “Townley present[ed] no rights of its
own different from or greater than its owners’ rights” because the corporation was an “extension
of the beliefs” of the owners, and “the beliefs of [the owners were] the beliefs and tenets of the
Townley Company.” Id. at 620 (internal quotation marks omitted). The court therefore held that
“Townley ha[d] standing to assert Jake and Helen Townley’s [f]ree [e]xercise rights,” and
examined the rights at issue as those of the corporation’s owners. Id. at 620 n.15 (citing Tony &
Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 303 n.26 (1985)).
( . . . continued)
their RFRA claims. The Court will also use the phrase “free exercise rights” to refer collectively to rights protected
by the Free Exercise Clause and the RFRA.
10
The Ninth Circuit subsequently applied Townley’s reasoning in Stormans. There, a
pharmacy brought a free exercise challenge to a state regulation requiring it to dispense Plan B,
an emergency contraceptive drug. Stormans, 586 F.3d at 1117. In analyzing whether the
pharmacy had standing to assert the free exercise rights of its owners, the court emphasized that
the pharmacy was a “fourth-generation, family-owned business whose shareholders and directors
[were] made up entirely of members of the Stormans family,” and that “Kevin Storman’s
opposition to Plan B [was] that of [the pharmacy’s] and all the owners.” Id. at 1120. The court
thus found that the pharmacy was “an extension of the beliefs of members of the Stormans
family, and that the beliefs of the Stormans family [were] the beliefs of” the pharmacy. Id.Because the pharmacy did “not present any free exercise rights of its own different from or
greater than its owners’ rights,” the court held, as it had in Townley, that the company had
“standing to assert the free exercise rights of its owners.” Id.Applying the principles of Townley and Stormans here, as this Court deems it appropriate
to do, it is first necessary to dissect Tyndale’s corporate structure. Tyndale is a “closely-held
entity” owned by four other entities: the Foundation, the Tyndale Trust, the Kenneth N. Taylor
Trust, and the Margaret W. Taylor Trust. See November 7, 2012 Affidavit of Mark D. Taylor
[ECF No. 24] (“Taylor Aff.”) ¶ 2; id., Ex. A. All five entities were created by Dr. Kenneth
Taylor, the father of plaintiff Mark D. Taylor and Tyndale’s founder. Id. ¶ 2. Dr. Taylor
designed Tyndale’s ownership structure to accomplish two goals: “to direct [Tyndale’s] proceeds
to religious charity and educational non-profit work” and “to ensure that the direction of
[Tyndale] will remain . . . faithful to his religious beliefs and Christian educational vision even
after his passing.” Id. ¶ 3. To these ends, Dr. Taylor separated the stock of Tyndale into non-
11
voting shares and voting shares. Id. ¶ 5. The Foundation, a “non-profit religious entity,” owns
96.5% of Tyndale’s total shares. Id. ¶ 4; Compl. ¶ 45. Not only is the Foundation the primary
recipient of Tyndale’s profits, “Tyndale also pays royalties to the Foundation in amounts
exceeding $1 million annually, because Dr. Taylor had donated his author rights to the
Foundation.” Compl. ¶ 49. The Foundation distributes the funds it receives from Tyndale “to
various charitable causes,” primarily “other Christian charities.” Id. ¶¶ 42, 50. The Tyndale
Trust owns 84% of Tyndale’s voting shares, and its trustees must “be the same people as the
directors of [Tyndale]” to ensure that Tyndale maintains “its religious identity, beliefs, and
mission.” Taylor Aff. ¶ 5. Less than 3.5% of Tyndale’s shares are owned by two trusts created
for the benefit of Dr. Taylor’s widow, Margaret Taylor, and their children. Id. ¶ 6. “These
family trusts also possess some voting shares so that the religious beliefs of Dr. Taylor’s family
will continue to influence [Tyndale’s] direction.” Id.
The plaintiffs’ submissions to the Court indicate that all five Tyndale entities, as well as
their directors, trustees, and even many of their employees, share the same religious beliefs:
• Tyndale’s Articles of Incorporation declare that its purpose is “[t]o engage as a publisher
of Christian and faith-enhancing books.” Id., Ex. B. And its “Corporate Purpose is ‘to
minister to the spiritual needs of people, primarily through literature consistent with
biblical principles.’” Compl. ¶ 26.
• Tyndale “holds a weekly chapel service for its employees”; although attendance is
voluntary, “well over 50% of the employee population” attends each week. Id. ¶ 29.
Christian prayer is also a routine practice at meetings of Tyndale’s executives and board
of directors. See id. ¶¶ 30-32.
12
• Tyndale’s primary owner, the Foundation, has the mission of “‘minister[ing] to the
spiritual needs of people, primarily through grants to other Christian charities.’” Id. ¶ 42.
Due to “the Foundation’s nearly total ownership of Tyndale,” the “religious missions” of
Tyndale and the Foundation “are largely overlapping and mutually reinforcing.” Id. ¶ 46.
• The Tyndale Trust’s trustees, who are also Tyndale’s board of directors, “are required to
sign a Statement of Faith each year to show that they hold to certain religious beliefs,
which are typically described as evangelical Christian beliefs.” Id. ¶ 56. By signing this
“Statement of Faith,” the trustee-directors agree that, among other things, they “believe in
the divine inspiration, truthfulness, and authority of both Old and New Testament
Scriptures in their entirety as the only written word of God, without error in all that it
affirms, and the only infallible rule of faith and practice.” Id. ¶ 57. These measures are
designed to ensure that the Tyndale Trust “continue[s] the biblical focus” of Tyndale’s
mission. Id. ¶ 54.
• All five entities—Tyndale, the Foundation, the Tyndale Trust, the Margaret W. Taylor
Trust, and the Kenneth N. Taylor trust—share the same religious beliefs “in general and
with respect to Tyndale’s provision of health insurance and omission of [certain
contraceptives] therefrom.” Id. ¶ 61.
Thus, as in Townley and Stormans, the beliefs of Tyndale and its owners are
indistinguishable. Tyndale is a closely-held corporation owned by four entities united by their
Christian faith, each of which plays a distinct role in achieving shared, religious objectives.
Christian principles, prayer, and activities are pervasive at Tyndale, and the company’s
ownership structure is designed to ensure that it never strays from its faith-oriented mission. The
13
Court has no reason to doubt, moreover, that Tyndale’s religious objection to providing
insurance coverage for certain contraceptives reflects the beliefs of Tyndale’s owners. Nor is
there any dispute that Tyndale’s primary owner, the Foundation, can “exercise religion” in its
own right, given that it is a non-profit religious organization; indeed, the case law is replete with
examples of such organizations asserting cognizable free exercise and RFRA challenges. See,
e.g., Jimmy Swaggart Ministries v. Bd. of Equalization of Cal., 493 U.S. 378, 381, 384 (1990);
Bob Jones Univ. v. United States, 461 U.S. 574, 579-85, 602-04 (1983); EEOC v. Catholic Univ.
of Am., 83 F.3d 455, 467-70 (D.C. Cir. 1996). Accordingly, because Tyndale does “not present
any free exercise rights of its own different from or greater than its owners’ rights,” it has
“standing to assert the free exercise rights of its owners.” 10 Stormans, 586 F.3d at 1120.
The defendants argue that nothing in Townley or Stormans suggests that a regulation that
burdens a corporation alone can also constitute a burden on its owners. Defs.’ Opp’n at 17-18.
But, at least for the purposes of standing in the free exercise context, that is precisely what those
cases held. Specifically, Townley and Stormans recognize that when the beliefs of a closely-held
corporation and its owners are inseparable, the corporation should be deemed the alter-ego of its
owners for religious purposes. See Stormans, 586 F.3d at 1120. In such circumstances, courts
must “consider the rights of the owners as the basis for the [f]ree [e]xercise claim” brought by
10
Tyndale’s unique corporate structure serves to distinguish this case from other recent decisions involving free
exercise and RFRA challenges to the contraceptive coverage mandate brought by secular, for-profit corporations.
See, e.g., Legatus v. Sebelius, __ F. Supp. 2d __, 2012 WL 5359630 (E.D. Mich. 2012); O’Brien v. HHS, __ F.
Supp. 2d __, 2012 WL 4481208 (E.D. Mo. 2012); Newland v. Sebelius, __ F. Supp. 2d __, 2012 WL 3069154 (D.
Colo. 2012).
14
the corporation, even if the regulation technically applies only to the corporation. 11 See id. at
1120-22 (emphasis added).
Viewing the rights of Tyndale’s owners (in particular, those of the Foundation) as the
basis for its RFRA claim, the Court finds that Tyndale has made a satisfactory showing of
Article III standing. According to the complaint, Tyndale has been subject to the contraceptive
coverage mandate since it became effective on October 1, 2012, and, based on its noncompliance
with the law on religious grounds, it currently faces heavy fines and penalties that accrue daily,
as well as likely governmental enforcement actions. See Compl. ¶¶ 87-99. The defendants do
not dispute these allegations. Tyndale has therefore shown an “actual or imminent” injury-in-
fact that is “concrete and particularized” and “‘fairly . . . traceable’” to the contraceptive
coverage mandate. Lujan, 504 U.S. at 560 (citations and brackets omitted). This injury would,
moreover, be redressed by a court decision holding the contraceptive coverage mandate unlawful
and enjoining its enforcement against Tyndale. Article III requires no more.
ii. Third-Party Standing
Even if this Court were not inclined to adopt the Townley-Stormans theory of free
exercise standing, 12 it would nonetheless find that Tyndale has standing to assert its owners’ free
11
The defendants caution that accepting the Townley-Stormans theory of standing “would expand [the] RFRA’s
scope in an extraordinary way” by allowing “owner[s’] religious beliefs [to be] automatically imputed to [their]
compan[ies].” Defs.’ Opp’n at 16. This, in the defendants’ estimation, would allow “millions of shareholders of
publicly traded companies [to] assert RFRA claims on behalf of those companies.” Id. But Townley and Stormans
are far more limited than the defendants indicate—the cases only permit a corporation to assert the free exercise
rights of its owners when it is closely-held and the beliefs of the corporation are an extension of the owners’ beliefs.
See Stormans, 586 F.3d at 1120. Furthermore, Townley has been the law of the Ninth Circuit since 1988, yet
nothing has been presented to show that courts in that Circuit have been flooded with free exercise and RFRA
claims by for-profit corporations.
12
Although the plaintiffs rely heavily on Townley and Stormans, see Pls.’ Mem. at 10, 14, 20, the defendants do not
attack the reasoning of those decisions apart from stating, without elaboration, that the Ninth Circuit’s standing
analysis was “probably incorrect[.]” Defs.’ Opp’n at 16. The Court is therefore left to guess where the defendants
(continued . . . )
15
exercise rights under the third-party standing doctrine, despite the defendants’ arguments to the
contrary. See Defs.’ Opp’n at 14. The standing inquiry “involves ‘both constitutional
limitations on federal-court jurisdiction and prudential limitations on its exercise.’” Kowalski v.
Tesmer, 543 U.S. 125, 128 (2004) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). One of
the standing doctrine’s “prudential limitations” is “the rule that a party ‘generally must assert his
own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of
third parties.’” Id. at 128-29 (quoting Warth, 422 U.S. at 499). The Supreme Court has,
however, “recognized the right of litigants to bring actions on behalf of third parties, provided
three important criteria are satisfied”: (1) “[t]he litigant must have suffered an ‘injury in fact,’
thus giving him or her a ‘sufficiently concrete interest’ in the outcome of the issue in dispute”;
(2) “the litigant must have a close relation to the third party”; and (3) “there must exist some
hindrance to the third party’s ability to protect his or her own interests.” Powers v. Ohio, 499
U.S. 400, 410-11 (1991) (citations omitted).
The Court will thus analyze whether Tyndale has satisfied the third-party standing criteria
with respect to its primary owner, the Foundation. As discussed above, Tyndale has shown a
sufficient injury-in-fact that is fairly traceable to the contraceptive coverage mandate, and
therefore has satisfied the first criterion. Regarding the “close relationship” requirement, Powers
states that courts should examine whether the plaintiff and third party have a “congruence of
interests” such that the plaintiff will be a “motivated, effective advocate for the [third party’s]
rights.” Id. at 414. These conditions are present here, as Tyndale and the Foundation are
closely-linked entities that share common religious objections to the contraceptive coverage
( . . . continued)
believe Townley and Stormans went wrong. In any event, the Court’s third-party standing analysis provides an
independent basis for finding that Tyndale has standing to assert its owners’ free exercise rights.
16
mandate. See Compl. ¶ 46 (“By virtue of the Foundation’s nearly total ownership of Tyndale,”
the “religious missions” of Tyndale and the Foundation “are largely overlapping and mutually
reinforcing.”); id. ¶ 61 (alleging that all five Tyndale entities hold the same religious beliefs “in
general and with respect to Tyndale’s provision of health insurance and omission of [certain
contraceptives] therefrom”). There can be little doubt, then, that Tyndale will effectively
advocate for the Foundation’s rights.
Turning to the “hindrance” prong of the third-party standing analysis, the Court must
examine the “likelihood and ability of the third parties . . . to assert their own rights.” Powers,
499 U.S. at 414. The defendants take a perplexing, self-defeating position on this issue. They
initially argue that Tyndale’s owners are not “hindered” from asserting their own rights and that
the owners’ absence as parties to this action is “[i]nexplicabl[e].” Defs.’ Opp’n at 13. But then,
in the same breath, the defendants contend that Tyndale’s owners are not the parties allegedly
injured by the contraceptive coverage mandate—Tyndale is. See id. at 14. Thus, by the
defendants’ own admission, the Foundation faces a legal impediment to challenging the
contraceptive coverage mandate in court, i.e., lack of a direct injury-in-fact. This suffices to
satisfy the “hindrance” criterion. See Powers, 499 U.S. at 414-15 (indicating that inability to
show a cognizable injury under Article III is one of the potential “barriers to suit” for a third
party (citing City of Los Angeles v. Lyons, 461 U.S. 95, 105-110 (1983)).
It bears emphasizing that if the Court accepted the defendants’ position, no Tyndale
entity would have standing to challenge the contraceptive coverage mandate—not even the
Foundation. This is because, in the defendants’ view, Tyndale—though directly injured by the
regulation—cannot exercise religion, and the Foundation—though capable of exercising
17
religion—is not directly injured by the regulation. The third-party standing doctrine serves to
avoid such conundrums. Indeed, the Supreme Court has “been quite forgiving with [the third-
party standing] criteria” where, as here, “‘enforcement of the challenged restriction against the
litigant would result indirectly in the violation of third parties’ rights.’” Kowalski, 543 U.S. at
130 (quoting Warth, 422 U.S. at 510) (emphasis in original). Because Tyndale has satisfied all
three requirements of third-party standing, it may assert the Foundation’s free exercise rights in
this case. 13
B. Likelihood of Success on the Merits
1. The Plaintiff’s RFRA claim
The RFRA forbids the government from “substantially burden[ing] a person’s exercise of
religion even if the burden results from a rule of general applicability” unless the government
can “demonstrate[] that application of the burden to the person (1) is in furtherance of a
compelling governmental interest; and (2) is the least restrictive means of furthering that
compelling governmental interest.” 42 U.S.C. § 2000bb-1(a), (b). Congress enacted the RFRA
in response to the Supreme Court’s decision in Employment Division, Department of Human
13
Another one of the defendants’ arguments warrants brief mention: they contend that allowing a for-profit
corporation such as Tyndale to assert a RFRA claim would undermine the enforcement of federal anti-
discrimination laws—namely, Title VII of the Civil Rights Act of 1964. See Defs.’ Opp’n at 10-11. This contention
is based on the defendants’ view that Tyndale does not qualify as an exempt “religious corporation” under Title VII,
and is instead a covered “employer” under that statute. Id. at 10. The defendants argue that permitting the
corporation to assert a RFRA claim would effectively exempt it from Title VII, thus “overriding the congressionally
prescribed scope of the Title VII religious exemption.” Id. The Court finds several flaws in this reasoning. First, it
is unclear that Tyndale would not qualify as an exempt “religious corporation” under Title VII. See LeBoon v.
Lancaster Jewish Comm. Ctr. Ass’n, 503 F.3d 217, 226 (3d Cir. 2007) (setting forth several, non-dispositive factors
that courts must consider in determining whether an entity qualifies as a religious corporation). Second, even
assuming Tyndale is a covered employer under Title VII, allowing it to assert a RFRA challenge (at least on behalf
of its owners, as the Court has done here) would not necessarily exempt the corporation from Title VII. That is just
the first step in the analysis. If, hypothetically, the corporation were sued under Title VII and then raised the RFRA
as a defense, a court would proceed to analyze whether the application of Title VII substantially burdened religious
exercise, whether the law advanced compelling governmental interests, and whether the law was the least restrictive
means of advancing those interests. See 42 U.S.C. § 2000bb-1(a), (b). In other words, just because a corporation is
allowed to assert a RFRA claim does not mean that it will succeed on the claim.
18
Resources of Oregon v. Smith, 494 U.S. 872 (1990), in which the Court held that the right to free
exercise of religion under the First Amendment does not exempt an individual from a law that is
neutral and of general applicability, and explicitly disavowed the test used in earlier decisions,
which prohibited the government from substantially burdening a plaintiff’s religious exercise
unless the government could show that its action served a compelling interest and was the least
restrictive means to achieve that interest. See 42 U.S.C. § 2000bb(a); Smith, 494 U.S. at 879-80,
883-85. In Congress’ estimation, Smith had “virtually eliminated the requirement that the
government justify burdens on religious exercise imposed by laws neutral to religion.” 42
U.S.C. § 2000bb(a)(4). The stringent requirements imposed by the RFRA reflect Congress’
judgment that “governments should not substantially burden religious exercise without
compelling justification” and are intended “to restore the compelling interest test as set forth in
Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972).” Id. §§
2000bb(a)(3), (b)(1). Accordingly, courts look to pre-Smith free exercise jurisprudence in
assessing RFRA claims. See Vill. of Bensenville v. FAA, 457 F.3d 52, 62 (D.C. Cir. 2006).
i. The Substantial Burden Prong
Under the RFRA, “exercise of religion” is defined as “any exercise of religion, whether
or not compelled by, or central to, a system of religious belief.” See 42 U.S.C. § 2000bb-2
(defining “exercise of religion” as defined in 42 U.S.C. § 2000cc-5 (2006)). The plaintiffs assert
that they “have a sincere conscientious religious objection to providing coverage for
abortifacients[14] and related education and counseling in Tyndale’s health insurance plan,”
14
The plaintiffs use the term “abortifacients” to refer to the three contraceptives at issue in this case—Plan B, ella,
and intrauterine devices—which they state “cause the demise of an already conceived/fertilized human embryo.”
See, e.g., Compl. ¶¶ 59, 75, 81-83.
19
Compl. ¶ 88, and that they “cannot in good conscience violate their religious beliefs by providing
coverage for emergency contraception, IUDs, or counseling or education in furtherance of the
same, in Tyndale’s health insurance plan,” id. ¶ 89. The defendants concede that the plaintiffs’
religious belief is sincere, but dispute that the contraceptive coverage mandate substantially
burdens this religious belief. 15 Defs.’ Opp’n at 14.
To determine whether the contraceptive coverage mandate substantially burdens the
plaintiffs’ religious exercise, the Court must consider whether the government action “puts
‘substantial pressure on [the] adherent[s] to modify [their] behavior and to violate [their]
beliefs.’” Kaemmerling v. Lappin, 553 F.3d 669, 678 (D.C. Cir. 2008) (quoting Thomas v.
Review Bd. of Ind. Employ. Sec. Div., 450 U.S. 707, 718 (1981)). For example, in Wisconsin v.
Yoder, the Supreme Court held that a state’s compulsory school-attendance law substantially
burdened the Amish plaintiffs’ religious exercise because the “law affirmatively compel[led]
them, under threat of criminal sanction, to perform acts undeniably at odds with fundamental
tenets of their religious beliefs.” 406 U.S. at 218. Similarly, the imposition of significant added
expense to a religious practice can, under some circumstances, rise to the level of a substantial
burden. See Jimmy Swaggart Ministries, 493 U.S. at 392 (declining to find that the plaintiff’s
religious exercise was substantially burdened, but noting that “it is of course possible to imagine
that a more onerous tax rate, even if generally applicable, might effectively choke off an
adherent’s religious practices”).
Government action can substantially burden a plaintiff’s religious exercise even if the law
only results in the plaintiff being forced to forego a government benefit. In Sherbert, the
15
Because the Court has already held that the plaintiffs have standing to assert their RFRA claim, the Court will
confine its analysis in this section to a consideration of whether the circumstances here constitute a substantial
burden.
20
Supreme Court found that the state had substantially burdened the plaintiff’s religious exercise
by denying her unemployment benefits because, in accordance with the tenets of her faith, she
was unwilling to work on Saturdays. 374 U.S. at 403-04. The Court held that “the pressure
upon [the plaintiff] to forego that practice is unmistakable” because the government’s action
“forces her to choose between following the precepts of her religion and forfeiting benefits, on
the one hand, and abandoning one of the precepts of her religion in order to accept work, on the
other hand.” Id. at 404. In Thomas, the Court applied similar reasoning to conclude that the
plaintiff’s religious exercise was substantially burdened by the state’s denial of unemployment
benefits because the plaintiff, citing religious objections, voluntarily quit his job at a
manufacturing plant after the factory began producing weapons. 450 U.S. at 717-18. And, the
Court found that the “indirect” nature of the burden did not render the burden insubstantial. See
id. at 718.
As in Yoder, the contraceptive coverage mandate affirmatively compels the plaintiffs to
violate their religious beliefs in order to comply with the law and avoid the sanctions that would
be imposed for their noncompliance. Indeed, the pressure on the plaintiffs to violate their
religious beliefs is “unmistakable.” Sherbert, 374 U.S. at 404. The plaintiffs contend that
compliance with the contraceptive coverage mandate would violate their sincerely-held religious
beliefs, Pl.’s Mem. at 8-9, but if the plaintiffs adhere to their religious beliefs and do not comply
with the contraceptive coverage mandate, they are subject to suit, see 29 U.S.C. § 1132(a)
(providing for civil enforcement actions by the Department of Labor and insurance plan
participants), and to considerable financial penalties, see 26 U.S.C. § 4980D(a), (b) (providing
for penalty of $100 per day per employee for noncompliance with coverage provisions of the
21
ACA); 26 U.S.C. § 4980H (providing for annual tax assessment for noncompliance with
requirement to provide health insurance). And the plaintiffs assert that the penalties to which
Tyndale may be subject under the law would result in the ultimate closure of the business. See
Compl. ¶¶ 112-15; Pls.’ Mem., Ex. 1, ¶ 4 (“Tyndale House Publishers cannot afford to sustain
the fines threatened by the Mandate at issue in this case.”).
In Thomas v. Anchorage Equal Rights Commission, the Ninth Circuit considered an
analogous dilemma involving the choice between compliance with a state law prohibiting
discrimination in housing based on marital status and the plaintiffs’ exercise of their religious
beliefs prohibiting their facilitation of the cohabitation of unmarried couples. 165 F.3d 692, 696-
97 (9th Cir. 1999), rev’d on other grounds en banc, 220 F.3d 1134 (9th Cir. 2000). The court
found that the effect of the law was to “put [the plaintiffs] out of business” by effectively
banning them from the rental market due to their inability to comply with the law in accordance
with their religious belief, and, relying on the Supreme Court’s reasoning in cases considering
the denial of unemployment benefits, held that the law therefore substantially burdened the
plaintiffs’ exercise of religion. Id. at 712-14.
The Thomas court’s reasoning is persuasive here. The contraceptive coverage mandate
similarly places the plaintiffs in the untenable position of choosing either to violate their
religious beliefs by providing coverage of the contraceptives at issue or to subject their business
to the continual risk of the imposition of enormous penalties for its noncompliance. Such a
threat to the very continued existence of the plaintiffs’ business necessarily places substantial
pressure on the plaintiffs to violate their beliefs. Government action that creates such a Hobson’s
22
choice for the plaintiffs amply shows that the contraceptive coverage mandate substantially
burdens the plaintiffs’ religious exercise.
The defendants nonetheless urge the Court to adopt the reasoning of O’Brien v. HHS, __
F. Supp. 2d __, 2012 WL 4481208 (E.D. Mo. 2012). There, the court considered the application
of the contraceptive coverage mandate to plaintiffs Frank O’Brien and O’Brien Industrial
Holdings, LLC, “a secular, for-profit company in St. Louis, Missouri, that is engaged in the
business of mining, processing, and distributing refractory and ceramic materials and products,”
of which Mr. O’Brien is the chairman and managing member. Id. at __, *1. Mr. O’Brien is
Catholic and “tries to manage and operate [his company] in a manner consistent with his
religion.” Id. The company’s lobby contains a religious statue, the company’s mission and
statement of values contain religious references, and the company and its subsidiaries pledge to
tithe the earnings generated by the companies. Id. __, *1 n.3. The company also provides health
insurance to its employees through a group plan. Id. at __, *2. The O’Brien plaintiffs brought a
RFRA claim against the same six defendants currently before this Court, alleging that inclusion
of contraceptive coverage in the company’s group plan would violate the plaintiffs’ religious
belief that requires the “condemnation of contraception.” Id. at __, *4.
The court dismissed the plaintiffs’ RFRA claim, holding that the plaintiffs had failed to
show that the contraceptive coverage mandate substantially burdened their religious exercise. Id.at __, *6-7. Describing the burden at issue as the “funds, which plaintiffs will contribute to a
group health plan, [that] might, after a series of independent decisions by health care providers
and patients covered by [the company’s] plan, subsidize someone else’s participation in an
activity that is condemned by plaintiffs’ religion,” the court reasoned that the burden on the
23
plaintiffs’ religious exercise was simply too attenuated to qualify as “substantial.” Id. at __, *6
(emphasis in original). The court emphasized that the decision to use contraceptives, the
objectionable act, was ultimately in the hands of a third party, the plan participant, and that such
a burden was not within the contemplation of the RFRA. See id. (stating that the RFRA
“protects individuals from substantial burdens on religious exercise that occur when the
government coerces action one’s religion forbids, or forbids action one’s religion requires; it is
not a means to force one’s religious practices upon others”). The court therefore found that this
“slight” burden of requiring the plaintiffs to contribute to a group plan that provides
contraceptive coverage “has no more than a de minimus impact on the plaintiff’s [sic] religious
beliefs than paying salaries and other benefits to employees.” Id. at __, *6-7.
The Court finds the facts of the instant case to be sufficiently distinguishable from
O’Brien to warrant a different result. One crucial distinction lies in the method by which the
companies in each case provide health insurance. In O’Brien, the plaintiffs provided health
insurance to their employees through a group health insurance policy which was separately
administered by an insurance company. See id. at __, *2. Here, the plaintiffs provide direct
coverage to Tyndale employees through a self-insured plan in which “Tyndale acts as its own
insurer.” Compl. ¶ 73. This difference in the manner in which coverage is provided is
significant because while the company in O’Brien contributes to a health insurance plan which
ultimately pays for the services used by the plan participants, Tyndale itself directly pays for the
health care services used by its plan participants, thereby removing one of the “degrees” of
separation that the court deemed relevant in O’Brien, __ F. Supp. 2d at __, 2012 WL 4481208 at
*7.
24
If O’Brien is intended to stand for the proposition that a plaintiff can never demonstrate
that its religious exercise is substantially burdened by a law that forces it to pay for services to
which it objects that are ultimately chosen and used by third parties, this Court must respectfully
disagree. As noted, a substantial burden exists when government action places “‘substantial
pressure on an adherent to modify his behavior and to violate his beliefs.’” Kaemmerling, 553
F.3d at 678 (quoting Thomas, 450 U.S. at 718). The plaintiffs’ specific objection is not simply to
the use of the contraceptives at issue, but to “providing coverage for abortifacients and related
education and counseling in Tyndale’s health insurance plan.” Compl. ¶¶ 88-89. As discussed
at length above, the contraceptive coverage mandate puts substantial pressure on the plaintiffs to
violate their religious beliefs against the provision of coverage for the three contraceptives at
issue. Therefore, the requirement to provide such coverage directly burdens the plaintiffs’
religious objection to providing such coverage. Because it is the coverage, not just the use, of
the contraceptives at issue to which the plaintiffs object, it is irrelevant that the use of the
contraceptives depends on the independent decisions of third parties. And even if this burden
could be characterized as “indirect,” the Supreme Court has indicated that indirectness is not a
barrier to finding a substantial burden. Thomas, 450 U.S. at 718.
Finally, the O’Brien court’s statement that the RFRA “is not a means to force one’s
religious practices upon others,” __ F. Supp. 2d at __, 2012 WL 4481208 at *6, is not relevant to
whether a plaintiff’s religious exercise is substantially burdened, but rather applies to the issue of
whether the government’s interest is sufficiently compelling to justify the substantial burdening
of a plaintiff’s religious exercise. The statutory language of the RFRA does not contain the
limitation suggested in O’Brien, and this Court finds no justification to read such a limitation
25
into the statute. Under the RFRA, substantially burdening a plaintiff’s religious exercise is only
justified if the law serves a compelling government interest and is the least restrictive means to
accomplish that interest. 42 U.S.C. § 2000bb-1(b). Third party harm may rise to the level of a
compelling interest, but absent such a showing, it is not the proper role of this Court to question
the solicitude given to religious exercise embodied by the RFRA.
The holding in Mead v. Holder, 766 F. Supp. 2d 16 (D.D.C. 2011), aff’d, Seven-Sky v.
Holder, 661 F.3d 1 (D.C. Cir. 2011), does not change the Court’s analysis either. The RFRA
claim in Mead concerned the application of the ACA’s individual coverage mandate to two
plaintiffs who asserted a religious belief “that God will provide for [their] physical, spiritual, and
financial well-being,” 766 F. Supp. 2d at 42 (citation omitted), and that the individual coverage
mandate therefore “conflicts with their Christian faith because it requires them to perform an act
that implies that they doubt God’s ability to provide for their health,” id. The Mead court held
that the plaintiffs had failed to show that the individual mandate provision substantially burdened
their religious exercise because the law provided the plaintiffs the option of making a shared
responsibility payment in lieu of obtaining health insurance and therefore did not pressure them
to violate their beliefs. Id. Further, the Mead court noted that the plaintiffs “routinely contribute
to other forms of insurance, such as Medicare, Social Security, and unemployment taxes, which
present the same conflict with their belief that God will provide for their medical and financial
needs.” Id.The circumstances of this case are considerably different. Unlike the plaintiffs in Mead,
the only alternative offered to the plaintiffs here is noncompliance with the contraceptive
coverage mandate and its attendant risk of suit and enormous financial penalties. The
26
availability of a reasonable alternative for the plaintiffs in Mead eliminated the pressure on them
to violate their religious beliefs; the plaintiffs here have no such alternative, and therefore, the
pressure to violate their religious beliefs remains undiminished. The Mead court’s reasoning
regarding the plaintiffs’ contribution to programs such as Medicare and Social Security is
irrelevant here. The objection raised in Mead to participation in a health insurance plan is
implicated in the exact same manner with respect to the plaintiffs’ participation in other social
welfare programs that provide for their medical and financial needs, whereas the objection raised
here to directly providing coverage of the contraceptives at issue is easily distinguished from
generally contributing to federal programs that provide the contraceptives at issue. As discussed
above, one of the reasons this Court declines to adopt the reasoning in O’Brien is that the burden
placed on the plaintiffs here is considerably more direct because Tyndale’s health plan is self-
insured.
Moreover, the Supreme Court has cautioned courts to avoid parsing a plaintiff’s religious
beliefs for inconsistency, and this Court will heed that warning. See Thomas, 450 U.S. at 715-16(admonishing that “[c]ourts should not undertake to dissect religious beliefs”). In Thomas, the
Supreme Court rejected an argument that the plaintiff’s claimed objection to working in a facility
that produced armaments was inconsistent with his prior work in the same facility producing
sheet metal that may have been ultimately used in the production of armaments, stating “[w]e see
. . . that Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable
one.” Id. The plaintiffs here have similarly drawn a line. To hold that the plaintiffs’ belief
regarding direct coverage of the contraceptives at issue requires the plaintiffs to also object to
contributing to federal programs that provide the same contraceptives is to engage in exactly the
27
kind of impermissible interrogation of religious beliefs that the Supreme Court warned against.
See Thomas, 450 U.S. at 715-16.
The plaintiffs have therefore shown that the contraceptive coverage mandate substantially
burdens their religious exercise. The Court will now consider whether the mandate can
nevertheless be applied to the plaintiffs because it serves a compelling interest and is the least
restrictive means to accomplish the government’s interest.
ii. The Compelling Interest Prong
If a plaintiff demonstrates a substantial burden on its religious exercise, the RFRA
requires that the government then demonstrate that it has “a compelling governmental interest”
justifying the burden. 42 U.S.C. § 2000bb-1(a), (b). At the preliminary injunction stage, as at
trial, the burden is on the government to demonstrate a compelling interest. Gonzales v. O
Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418, 429 (2006) (citing Ashcroft v.
ACLU, 542 U.S. 656 (2004)). “The statute makes clear that the term ‘demonstrates’ means
meets the burdens of going forward with the evidence and of persuasion.” Potter v. District of
Columbia, 558 F.3d 542, 546 (D.C. Cir. 2009) (quoting 42 U.S.C. § 2000bb-2(3)) (quotation
marks omitted).
The defendants claim that the government has two compelling interests regarding the
application of the contraceptive coverage mandate. First, the defendants claim an interest in
promoting public health, Defs.’ Opp’n at 20-21, and this Circuit has recognized that the
government “has a compelling interest in safeguarding the public health by regulating the health
care and insurance markets,” Mead, 766 F. Supp. 2d at 43 (citing Olsen v. DEA, 878 F.2d 1458,
1462 (D.C. Cir. 1989)). Second, the defendants claim an interest in providing employed women
with access to health care on par with employed men, Defs.’ Opp’n at 21-22, and the Supreme
28
Court has recognized the “importance, both to the individual and to society, of removing the
barriers to economic advancement and political and social integration that have historically
plagued certain disadvantaged groups, including women,” Roberts v. United States Jaycees, 468
U.S. 609, 626 (1984). There is undoubtedly a compelling interest in “[a]ssuring women equal
access to . . . goods, privileges, and advantages” enjoyed by men. Id.While the defendants have broad, compelling interests in both promoting public health
and ensuring that women have equal access to health care, the question that this Court must
answer under the RFRA here is whether the government has shown that the application of the
contraceptive coverage mandate to the plaintiffs furthers those compelling interests. 42 U.S.C. §
2000bb-1(b)(1). That is, the defendants must show that requiring the plaintiffs to provide the
contraceptives to which they object—Plan B, ella, and intrauterine devices (as well as education
and counseling regarding the same)—will further the government’s compelling interests in
promoting public health and in providing women equal access to health care.
The defendants object to the Court limiting its focus to “the specific characteristics of
Tyndale’s work force and health plan.” Defs.’ Opp’n at 22. However, it is upon exactly those
specific characteristics that the Court’s RFRA analysis must turn. “[The] RFRA requires the
Government to demonstrate that the compelling interest test is satisfied through application of
the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is
being substantially burdened.” O Centro, 546 U.S. at 430 (quoting 42 U.S.C. § 2000bb-1(b))
(emphasis added). The Court is required to “look[] beyond broadly formulated interests
justifying the general applicability of government mandates and scrutinize[] the asserted harm of
granting specific exemptions to particular religious claimants.” Id. at 431 (emphasis added); see
29
also Yoder, 406 U.S. at 236 (“[I]t was incumbent on the State to show with more particularity
how its admittedly strong interest in compulsory education would be adversely affected by
granting an exemption to the Amish.”) (emphasis added); Kaemmerling, 553 F.3d at 682 (“We
must look beyond the broadly formulated interests justifying the general applicability of the
[RFRA] to examine the interests the government seeks to promote as applied to [the plaintiff]
and the impediment to those objectives that would flow from granting him a specific
exemption.”) (internal citation and quotation marks omitted) (emphasis added). 16
The defendants primarily rely on the Institute Report as the basis for demonstrating that
requiring employers to provide contraceptives to their employees will further the government’s
stated interests. Defs.’ Opp’n at 21 (citing the Institute Report for the proposition that
“[i]ncreased access to contraceptive services is a key part of these predicted health outcomes, as
a lack of contraceptive use has proven to have negative health consequences for both women and
a developing fetus.”). The Institute Report, in turn, broadly defines “[p]reventive services for
women” as those “that prevent conditions harmful to women’s health and well-being.” Institute
Report at 20. Among the conditions discussed in the Institute Report is “[u]nintended
pregnancy[, which] is defined as a pregnancy that is either unwanted or mistimed at the time of
conception.” Id. at 102. The Institute Report goes on to discuss the health risks associated with
unintended pregnancy, including the failure to seek prenatal care in a timely manner as a result
of not being aware of the pregnancy and the lack of “motivat[ion] to discontinue behaviors that
16
The defendants try to minimize the RFRA’s demanding requirements by contending that “[i]n practice, courts
have not required the government to analyze the impact of a regulation on the single entity seeking an exemption,
but have expanded the inquiry to all similarly situated individuals or organizations.” Defs.’ Opp’n at 22. They then
go on to cite several cases pre-dating the Supreme Court’s decision in O Centro. See id. at 22-23. Regardless of
what those courts held, O Centro made clear that, under the RFRA, “courts should strike sensible balances[]
pursuant to a compelling interest test that requires the Government to address the particular practice at issue.” O
Centro, 546 U.S. at 439 (emphasis added).
30
present risks for the developing fetus,” as well as “depression, anxiety, or other conditions.” Id.
at 103. The Institute Report further points to “the increased risk of adverse pregnancy outcomes
for pregnancies that are too closely spaced,” id. at 103, as well as the risks that women with
certain health conditions might face as a result of becoming pregnant, id. at 103-04. The
preventive services prescribed in the Institute Report for unintended pregnancies “include
contraception (i.e., all FDA-approved contraceptive drugs and devices, sterilization procedures)
as well as patient education and counseling.” Id. at 102. On the recommendation of the
Institute, those same services are required to be provided under the contraceptive coverage
mandate. 76 Fed. Reg. 46621-01.
Lacking from the Institute Report and from the defendants’ brief is any proof that
mandatory insurance coverage for the specific contraceptives to which the plaintiffs object—
Plan B, ella, and intrauterine devices—furthers the government’s compelling interests, or that
granting the plaintiffs’ requested exemption would meaningfully impede the government’s
interests. See Kaemmerling, 553 F.3d at 682. This omission is noteworthy because the plaintiffs
do provide coverage of some contraceptives through their health care plan, namely those that do
not “cause the demise of an already conceived/fertilized human embryo.” Compl. ¶ 39. The
Institute Report states only that, in order to promote public health and equalize access to health
care, “[p]reventive services may . . . include the provision of . . . Food and Drug Administration-
approved medications and devices,” Institute Report at 20 (emphasis added), including
contraceptives, id. at 102-105. There is no specific finding that the government must ensure that
Plan B, ella, and intrauterine devices, as opposed to other forms of contraception, be covered
under the plaintiffs’ health plan in order to further the government’s compelling interests. Given
31
that the plaintiffs object to providing a very specific subset of contraceptive drugs and devices,
while consenting to provide many others, it is not clear, and the defendants have not made it
clear, how the government’s compelling interests in promoting health care and equalizing access
to health care are furthered by requiring the provision of the contraceptives at issue. 17 Because
the defendants have failed at this stage to demonstrate why the plaintiffs in this case must be
required to comply with the entirety of the contraceptive coverage mandate, the Court is forced
to conclude that the government has not shown that the application of the contraceptive coverage
mandate to the plaintiffs furthers its compelling interests. “The [g]overnment’s mere invocation
of the general characteristics” of contraceptives as promoting public health or of their provision
as equalizing access to health care “cannot carry the day.” O Centro, 546 U.S. at 432; see also
42 U.S.C. § 2000bb-1(b)(1).
The defendants point also to the government’s interest in avoiding the potential harm that
could “befall female employees (and covered spouses and dependents) who do not necessarily
share their employer’s religious beliefs.” Defs.’ Opp’n at 24. They argue that granting an
exemption to the plaintiffs would effectively hoist the plaintiffs’ religious beliefs above those of
the plaintiffs’ employees. Id. The plaintiffs, in response, point to the fact that “the government
itself has voluntarily omitted 191 million people from the” contraceptive coverage mandate.
Pls.’ Mem. at 22. In particular, the contraceptive coverage mandate does not apply to
grandfathered plans, 42 U.S.C. § 18011; 45 C.F.R. § 147.140, employers with fewer than 50
17
Indeed, the contraceptive coverage mandate makes up only a part of the “comprehensive package of clinical
preventive services for women” recommended by the Institute. Institute Report at 22. The recommendations
address the need for women to have equal access to preventive services relating to diabetes and gestational diabetes;
cervical cancer; sexually transmitted infections; HIV; unintended pregnancy and healthy birth spacing;
breastfeeding; interpersonal and domestic violence; and well-woman preventive visits. Id. at 79-134. The plaintiffs
here challenge only a portion of the “comprehensive package” meant to further the government’s compelling
interests. Id. at 22.
32
employees, 42 U.S.C. § 300gg-13(a); 76 Fed. Reg. at 46621-01 n.1, “member[s] of a recognized
religious sect or division thereof” who have religious objections to the concept of health
insurance, 26 U.S.C. § 5000A(d)(2)(A), or religious employers, as defined above, 45 C.F.R. §
147.130(a)(1)(iv).
“[A] law cannot be regarded as protecting an interest of the highest order . . . when it
leaves appreciable damage to that supposedly vital interest unprohibited.” Church of the Lukumi
Bablu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547 (1993) (quotation marks omitted). The
very purpose of a law is undermined where it is “so woefully underinclusive as to render belief
in [its] purpose a challenge to the credulous.” Republican Party of Minn. v. White, 536 U.S.
765, 780 (2002). Indeed, where the government’s proffered compelling interest exists both with
respect to employers subject to a law and with respect to those exempt from the law, “it is
difficult to see how [the] same findings [supporting the government’s interest] alone can
preclude any consideration of a similar exception” for a similarly-situated plaintiff. O Centro,
546 U.S. at 433.
In O Centro, the government sought to enforce the Controlled Substances Act, 21 U.S.C.
§ 801 (2006), as to an American branch of a Christian Spiritist Sect based in Brazil. 546 U.S. at
425. The plaintiffs there “receiv[ed] communion through hoasca . . . , a sacramental tea made
from two plants unique to the Amazon region,” one of which contained a substance regulated by
the Controlled Substances Act. Id. The Controlled Substances Act, in turn, imposes “criminal
sentence[s] for simple possession” of the substance, which the government conceded imposed a
substantial burden on the plaintiffs’ exercise of religion within the meaning of the RFRA. Id. at
425-26. Applying the RFRA’s compelling interest test, the Supreme Court held that “the
33
Government failed to demonstrate, at the preliminary injunction stage, a compelling interest in
barring the [plaintiffs’] sacramental use of hoasca.” Id. at 439. In so holding, the Supreme Court
pointed to the broad exemption for the use of peyote—a drug which also contained a regulated,
controlled substance—that the Act granted “for hundreds of thousands of Native Americans
practicing their faith.” Id. at 433. The Court observed that “[e]verything the Government says
about [the dangers of hoasca] . . . applies in equal measure to . . . peyote, yet both the Executive
and Congress itself have decreed an exception from the Controlled Substances Act for Native
American religious use of peyote.” Id. Thus, the Court concluded that the existence of an
exemption for a similarly dangerous drug undermined the government’s interest in prohibiting
the plaintiffs from using hoasca. Id.As outlined above, and as in O Centro, the defendants have already granted exemptions
to other employers—either by way of an explicit “religious employer” exemption or another
broad provision that functionally excludes other sets of employers from the scope of the
contraceptive coverage mandate. Indeed, the 191 million employees excluded from the
contraceptive coverage mandate include those covered by grandfathered plans alone. 75 Fed.
Reg. 34538-01, 34,550 (June 17, 2010). The defendants have provided no information
whatsoever about the number of employees excluded under the other exemptions or exclusions.
From all indications, the government’s findings (through the Institute Report) supporting its
compelling interests in the promotion of public health and in equalizing women’s access to
health care “appl[y] in equal measure,” O Centro, 546 U.S. at 433, to both the large number of
employers and employees falling outside, as well as to those, like the plaintiffs, falling within the
34
contraceptive coverage mandate. The existence of these exemptions significantly undermines
the defendants’ interest in applying the contraceptive coverage mandate to the plaintiffs.
Thus, because the government has not “assess[ed] the particulars of the [plaintiffs’]”
objections, nor “weigh[ed] the impact of an exemption for [their] specific” objection, O Centro,
546 U.S. at 430, and considering the myriad of exemptions to the contraceptive coverage
mandate already granted by the government, the defendants have not shown a compelling
interest in requiring the plaintiffs to provide the specific contraceptives to which they object.
The Court therefore does not reach the third prong of the RFRA test—whether the government
has chosen the least restrictive means to further its compelling interest. See generally id.(discussing only the compelling interest prong of the RFRA test where the government failed to
show a compelling interest in enforcing the Controlled Substances Act as to the plaintiffs).
In sum, the plaintiffs have shown a strong likelihood of success on the merits of their
RFRA claim.
C. Irreparable Harm
It is well settled that “[t]he loss of First Amendment freedoms, for even minimal periods
of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373
(1976). By extension, the same is true of rights afforded under the RFRA, which covers the
same types of rights as those protected under the Free Exercise Clause of the First Amendment.
See O Centro Espirita Beneficente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 995 (10th Cir.
2004), aff’d, O Centro, 546 U.S. at 429 (2006) (“[The plaintiff] would certainly suffer an
irreparable harm, assuming of course that it is likely to succeed on the merits of its RFRA
claim.”). As outlined above, the plaintiffs have established a strong likelihood of success on the
35
merits of their RFRA claim. Accordingly, the plaintiffs have adequately demonstrated that they
will suffer irreparable harm absent the issuance of a preliminary injunction. 18
D. The Balance of Equities
The defendants argue only that granting the plaintiffs’ motion for a preliminary
injunction “would undermine the government’s ability to achieve Congress’s goals of improving
the health of women and children and equalizing the coverage of preventive services for women
and men.” Defs.’ Opp’n at 43. The plaintiffs counter that granting them a preliminary
injunction “will simply preserve the status quo between the parties.” Pls.’ Mem. at 44.
As discussed above, the defendants have not carried their burden of persuading the Court
that the government must ensure that these particular plaintiffs provide their employees with the
specific contraceptives at issue in order to advance the government’s stated compelling interests.
Further, the denial of a preliminary injunction here “would[,] in fact[,] upend the status quo.”
Sherley, 644 F.3d at 398. The plaintiffs currently continue to provide their employees with the
same level and manner of contraceptive coverage as they did before the implementation of the
contraceptive coverage mandate. Compl. ¶ 75 (“Consistent with the religious commitments of
Tyndale and its owners, Tyndale’s self-insured plan does not and has never covered abortions or
abortifacient drugs or devices such as emergency contraception and intrauterine devices.”)
18
The defendants’ argument that the plaintiffs have not suffered irreparable harm due to their “delay” in filing this
lawsuit, Defs.’ Opp’n at 42, is disingenuous. The contraceptive coverage mandate did not apply to the plaintiffs
until October 1, 2012, and they filed this lawsuit on October 2, 2012. Pls.’ Reply at 24. The plaintiffs state that they
filed this case when they did on the basis of the defendants’ representations “[i]n other pending cases against this
[contraceptive coverage mandate] . . . that no irreparable harm exists until the date the [m]andate is applicable to the
plaintiff.” Id. at 25 (original emphasis) (citing Defendants’ Amended Memorandum in Opposition to Plaintiffs’
Motion for Preliminary Injunction at 57, Newland v. Sebelius, __ F. Supp. 2d __, 2012 WL 3069154 (D. Colo.
2012) (Civ. No. 12-01123, ECF # 26)). In any event, to the extent that the plaintiffs here delayed in filing this case,
they did not wait so long as to undermine their showing of irreparable harm; the cases cited by the defendants
involved delay much more substantial than the delay here. Defs.’ Opp’n at 42 (citing, among others, delays of forty-
four days, two months, and ten weeks as indicative of a lack of irreparable harm). The plaintiffs here waited only
one day after the contraceptive coverage mandate applied to them before filing this action. Pls.’ Reply at 24.
36
(emphasis added). Absent a preliminary injunction, the plaintiffs are at the risk of being sued, in
addition to either being subject to the considerable financial penalties stemming from the failure
to comply with the contraceptive coverage mandate, or being forced to violate their stated
religious beliefs by changing the nature of the contraceptive coverage provided under their health
care plan. Because any of these consequences would result in a change in the status quo,
Sherley, 644 F.3d at 398, the Court finds that the balance of equities tips in favor of the
plaintiffs.
E. Public Interest
The defendants point to the deprivation of preventive services to the 260 employees
covered by the plaintiffs’ health plan, as well as those employees’ spouses and dependents, as
harming the public interest. Defs.’ Opp’n at 43. In so arguing, the defendants point to the
purpose of the contraceptive coverage mandate, “which is to improve the health of women and
children and promote gender equality by equalizing coverage of preventive services for women.”
Id. (citing 75 Fed. Reg. 41726-01, 41733 (July 19, 2010) and 77 Fed. Reg. 8725-01, 8728 (Feb.
15, 2012)). However, as discussed above, the defendants have failed to demonstrate a
compelling interest in applying the contraceptive coverage mandate to the plaintiffs. They have
thus also failed to show the harm to the public that they claim.
Although there is arguably a public interest in the uniform application of the ACA and
the contraceptive coverage mandate, see, e.g., Allina Health Servs. v. Sebelius, 756 F. Supp. 2d
61, 71 (D.D.C. 2010) (“The public interest is served by the consistent and uniform application of
regulations to similarly-situated parties”), there is undoubtedly also a public interest in ensuring
that the rights secured under the First Amendment and, by extension, the RFRA, are protected,
37
42 U.S.C. § 2000bb(a) (“The Congress finds that . . . the framers of the Constitution, recognizing
free exercise of religion as an inalienable right, secured its protection in the First Amendment to
the Constitution[.]”). Indeed, First Amendment rights are among the most precious rights
guaranteed under the Constitution. Lee v. Weisman, 505 U.S. 577, 589 (1992). Where, as here,
the regulations at issue include exemptions and other provisions excluding a large number of
people from the scope of the regulations, and the government has failed to show a compelling
interest furthered by the enforcement of those regulations as to the plaintiffs in this case, the
public has little interest in the “uniform application” of the regulations. The public interest
instead weighs in favor of the plaintiffs.
IV. CONCLUSION
For the reasons set forth above, the plaintiffs’ motion for a preliminary injunction is
granted. 19
SO ORDERED this 16th day of November, 2012.
REGGIE B. WALTON
United States District Judge
19
The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.
38