March for Life v. Burwell

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MARCH FOR LIFE, et al., )
Plaintiffs, i
V. i Case No. 14-cv-1149 (RJL)
SYLVIA M. BURWELL, et al., i F E L E D
Defendants. ; 3 l
MEMO ANDUM OPINION Clerk, U.S. District & Bankruptcy
v Courts torthe District of Columbia
(August , 2015) [Dkts ##11, 16]
Plaintiffs, the March for Life Education and Defense Fund (“March for Life”),
Jeanne F. Monahan, and Bethany A. Goodman (together, “employee plaintiffs”), bring
this action seeking injunctive relief from what is commonly referred to as the
“Contraceptive Mandate” embodied in the regulations implementing the Patient
Protection and Affordable Care Act. Defendants are three federal agencies and their
respective Secretaries: the United States Department of Health and Human Services
(“HHS”) and Secretary of HHS Sylvia M. Burwell; the United States Department of
Labor and Secretary of Labor Thomas E. Perez; and the United States Department of the
Treasury and Secretary of the Treasury Jacob Lew (together “defendants” or “the
government”). Secretaries Burwell, Perez, and Lew are named in their official capacities
only. See generally Verified Compl. (“Compl.”) [Dkt #1].1
‘ A verified complaint is treated as an affidavit to the extent it is based on personal knowledge and sets
out facts admissible in evidence. See Neal v. Kelly, 963 F.2d 453, 457-58 (DC. Cir. 1992).
1
Plaintiffs move for a preliminary injunction and consolidated trial on the merits,
requesting permanent declaratory and injunctive relief. Mot. for Prelim. Inj. &
Consolidated Trial on the Merits & Mem. of Law in Supp. (“Pls.’ Mot”) [Dkt. #11].
Defendants oppose and move to dismiss plaintiffs” Complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6). or, in the alternative, for summary judgment. Defs.’ Mot. to
Dismiss or for Summ. J. [Dkt. #16]; Mem. of P. &. A. in Supp. ofDefs.’ Mot. to Dismiss
or for Summ. J. & Opp’n to Pls.’ Mot. for Prelim. Inj. (“Defs’ Opp’n”) [Dkt. #16].
After reviewing the pleadings, record. and applicable law, the trial on the merits is
consolidated with the preliminary injunction and, as the disputes are purely legal,
plaintiffs’ motion is construed as a motion for summary judgment. For the reasons
discussed herein, Plaintiffs’ Motion for Summary Judgment is GRANTED as to their
First Claim for Relief, under the equal protection clause of the Fifth Amendment;
GRANTED as to their Second Claim for Relief, under the Religious Freedom Restoration
Act; GRANTED as to their Fourth Claim for Relief under the Administrative Procedure
Act; and DENIED as to their Third Claim for Relief, under the free exercise clause of the
First Amendment. Defendants” Motion for Summary Judgment is GRANTED as to
plaintiffs” Third Claim for Relief, and DENIED as to plaintiffs’ First, Second, and Fourth
Claims for Relief.
BACKGROUND
I. Statutory and Regulatory Background
In March 2010, President Obama signed into law The Patient Protection and
Affordable Care Act, Pub. L. No. 111-148. 124 Stat. 119 (“ACA”). One of its many
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movant is entitled tojudgment as a matter of law." Fed. R. Civ. P. 56(a); see, e.g.,
Celofex Corp. v. Catretl, 477 US. 317, 322—23 (1986).
ANALYSIS
1. Governing Principles
Plaintiffs advance several statutory and constitutional challenges to the Mandate,
averring that it violates the Administrative Procedure Act (“APA”), 5 U .S.C. § 706, the
equal protection clause of the Fifth Amendment, the Religious Freedom and Restoration
Act, 42 U.S.C. § 2000bb el seq. (“RFRA”). and the free exercise clause ofthe First
Amendment. See generally Compl. The APA permits a reviewing court to set aside an
agency action that is “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law” or, alternatively, that is “(B) contrary to constitutional right, power,
privilege, or immunity.” 5 U.S.C. § 706(2)(A)-(B). Stated differently, the APA allows
courts to right two types of agency wrongs: procedural missteps and substantive
transgressions. While procedural correctness is, to be sure, an important facet of any
judicial inquiry, compliance with the law is the true touchstone oflegality. Thus, in a
context such as this, where plaintiffs have alleged serious constitutional and statutory
infirmities, the appropriate starting point for the Court’s analysis is not the integrity of the
agency’s decision-making process, but rather the lawfulness of the Mandate itself. I will
therefore begin by addressing plaintiffs’ Fifth Amendment, RFRA, and First Amendment
arguments and, because I find the first two challenges meritorious, I will refrain from
delving into the thicket of an APA review.
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11. Equal Protection Clause
March for Life first argues that the Mandate violates the Fifth Amendment’s
guarantee of equal protection because it treats March for Life differently than it treats
similarly situated employers. Pls.’ Mot. at 8-10. I agree.
The equal protection clause of the Fifth Amendment prohibits lawmakers from
“treating differently [entities that] are in all relevant respects alike.” See Nordlinger v.
Hahn, 505 US. 1, 10 (1992) (citation omitted). The practical reality is that regulatory
regimes may, and in some cases must, classify persons for one purpose or another. See
Pers. Adm ’r ofMass. v. Feeney, 442 US. 256, 271 (1979). Thus, to preserve the
regulatory balance, equal protection prevents only classifications motivated by
discriminatory animus. See id. In the ordinary course, laws that neither burden a
fundamental right, nor target a suspect class, must satisfy so-called rational basis
review—meaning that to survive an equal protection challenge, they must rationally
relate to a legitimate governmental purpose. FCC v. Beach Commc ’ns, Inc, 508 US.
307, 313 (1993); see Steflan v. Perry, 41 F.3d 677, 684-85 (DC. Cir. 1994) (en banc)
(applying rational basis review to an agency regulation).
Were defendants to have their way here, rational basis review would have all the
bite of a rubber stamp! The sin quo non of equal protection is that the government must
“not treat Similarly situated individuals differently without a rational basis” for doing so.
Noble v. US. Parole Comm ’n, 194 F.3d 152, 154 (DC. Cir. 1999) (per curiam) (citing
Cleburne v. Cleburne Living CIR, 473 US. 432, 439 (1985)). The Court is, of course,
mindful that the equal protection clause does not impose on lawmakers a requirement of
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perfect parity. See Heller v. Doe, 509 US. 312. 321 (1993). But the elusiveness of
perfection will not excuse regulatory animus. Rational basis review, ifit is to have any
meaning in the constellation of judicial scrutiny, demands that agency line drawing,
however inartful, rationally relate to its purported objective. Even under this “most
deferential of standards,” it is incumbent on the Court to find “the relation between the
classification adopted and the object to be attained." Romer v. Evans, 517 US. 620, 632
(1996). Were the Court to abdicate this search, it would disregard basic principles of
equal protection, which secure not only the rights of domestic persons, but also the limits
of regulatory authority. See id. Unfortunately for defendants, the Mandate here defies
this conventional inquiry.
Defendants contend that March for Life is not “similarly situated” to the exempted
organizations because it “is not religious and is not a church.” Defs.’ Opp’n at 18
(internal quotation marks omitted). Rational basis review is met, they argue, because the
purpose served, “accommodating religious exercise by religious institutions,” is
6“permissible and legitimate.” See Defs.’ Opp’n at 15. This not only oversimplifies the
issue—it misses the point entirely! The threshold question is not whether March for Life
is “generally” similar to churches and their integrated auxiliaries. It is whether March for
Life is similarly Situated with regard to the precise attribute selected for accommodation.
See Ctr. for Inquiry, Inc. v. Marion Circzu'l Court Clerk, 758 F.3d 869, 872 (7th Cir.
2014). For the following reasons, I conclude that it most assuredly is.
The clear, and undisputed, purpose of the Mandate is to provide accessible
contraceptive coverage for women who “want it” in order to avoid “unintended
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pregnancies.” See 77 Fed. Reg. at 8,727. Religious employers are exempt from the
Mandate because ofthe “unique relationship between a house of worship and its
employees in ministerial positions.” 76 Fed. Reg. at 46,623. What, then, makes that
particular employment relationship “unique” in this particular context? The answer,
according to HHS. is simple: employees of religiously exempt organizations are “less
likely” than other groups to want contraceptives because of their moral beliefs. In HHS’s
own words, “[h]ouses of worship and their integrated auxiliaries that object to
contraceptive coverage on religious grounds are more likely than other employers to
employ people of the same faith who share the same objection, and who would therefore
be less likely than other people to use contraceptive services even if such services were
covered under their plan.” 78 Fed. Reg. at 39,874 (emphasis added); see 77 Fed. Reg. at
8.728 (“A group health plan . . . qualifies for the exemption if. . . the plan is established
and maintained by an employer that primarily employs persons who share the religious
tenets of the organization. As such, the employees of employers availing themselves of
the exemption would be less likely to use contraceptives even if contraceptives were
covered under their health plans”) (emphasis added). What emerges is a curious
rationale indeed. HHS has chosen to protect a class ofindividuals that, it believes, are
less likely than other individuals to avail themselves of contraceptives. It has
consequently moored this accommodation not in the language of conscientious objection,
but in the vernacular of religious protection. This, of course, is puzzling. ln HHS’S own
view, it is not the belief or non-belief in God that warrants safe harbor from the Mandate.
The characteristic that warrants protection—an employment relationship based in part on
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a shared objection to abortifacients—is altogether separate from theism. Stated
differently, what HHS claims to be protecting is religious beliefs, when it actually is
protecting a moral philosophy about the sanctity of human life. HHS may be correct that
this objection is common among religiously-affiliated employers. Where HHS has erred,
however, is in assuming that this trait is unique to such organizations. It is not.
March for Life and its employees are evidence ofthis fact. Anti-abortion
advocacy is March for Life’s sole and central tenet. Compl. fl 1. It is an entity founded
exclusively on pro-life principles, and its governing ethos—indeed its corporate dogma—
is staunchly anti-abortifacient. Id. This philosophy is shared, moreover, by March for
Life’s employees, who “not only agree with its anti-abortifacient views, but [who] work
there precisely to advocate those views." Pls.’ Mem. at 9; see Compl. W 21, 26—35, 119,
156. To say that its employees oppose contraceptives understates the vehemence of their
objection. According to plaintiffs, March for Life’s employees not only reject
abortifacients in principle, but they “don ’t want them, don ’t want coverage for them, and
will not use” them in practice. Pls.’ Mem. at 9 (emphasis added). On the spectrum of
“likelihood” that undergirds HHS’s policy decisions, March’s for Life’s employees are,
to put it mildly, “unlikely” to use contraceptives. In this respect, March for Life and
exempted religious organizations are not just “similarly situated,” they are identically
situated. Their employees share, as a function of their belief system, the “unique” tenets
of an employment relationship that HHS seeks to protect. It is difficult to imagine a more
textbook example of the trait HHS purports to accommodate. And yet, March for Life
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has been excised from the fold because it is not “religious.” This is nothing short of
regulatory favoritism.
While it is true, as defendants assert, that religious employers have long enjoyed
advantages over their secular counterparts, “religion” is not a talisman that sweeps aside
all constitutional concerns.8 See Defs.’ Opp‘n at 12. As the Seventh Circuit recently
cautioned, the special solicitude given to religions “does not imply an ability to favor
religions over non-theistic groups that have moral stances that are equivalent to theistic
ones” with regard to the regulated attribute. See Ctr. for Inquiry, 758 F.3d at 873. Our
jurisprudence has long recognized that “[i]f an individual deeply and sincerely holds
beliefs that are purely ethical or moral in source and content . . . those beliefs certainly
occupy in the life ofthat individual a place parallel to that filled by God in traditionally
religious persons.” See Welsh v. United States, 398 US. 333, 340 (1970) (internal
quotation marks omitted).9 Recognizing the role morality plays in the lives of citizens,
courts prohibit regulatory “distinctions between religious and secular beliefs that hold the
same place in adherents’ lives.” See Ctr. for Inquiry. 758 F.3d at 873 (citations omitted).
Yet, here, HHS has made a distinction of this very ilk. March for Life is an avowedly
pro-life organization whose employees share in, and advocate for, a particular moral
8 The Court is, of course, cognizant that ordinarily, when the government lifts a regulation that “might
interfere with religious organizations’ ‘exercise of religion,” there is “no reason to require that the
exemption comes packaged with benefits to secular entities.” Corp. of Presiding Bishop of Church of
Jesus Christ ofLatter-day Saints v. Amos. 483 US. 327, 338 (1987). However, as the Seventh Circuit
recently pointed out, religiosity “cannot be a complete answer” where, as here, two groups with a shared
attribute are similarly situated “in everything except a belief in deity.” See Ctr. for Inquiry, 758 F.3d at
872.
9 Although Welsh was decided under statute, rather than under the Constitution, the Court nonetheless
finds its reasoning persuasive here.
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philosophy. HHS has chosen, however, to accommodate this moral philosophy only
when it is overtly tied to religious values. HHS provides no principled basis, other than
the semantics of religious tolerance, for its distinction. If the purpose of the religious
employer exemption is, as HHS states, to respect the anti-abortifacient tenets of an
employment relationship, then it makes no rational sense—indeed, no sense
whatsoeverwto deny March Life that same respect. By singling out a specific trait for
accommodation, and then excising from its protection an organization with that precise
trait, it sweeps in arbitrary and irrational strokes that simply cannot be countenanced,
even under the most deferential of lenses. As such, the Mandate violates the equal
protection clause of the Fifth Amendment and must be struck down as unconstitutional.
III. Religious Freedom Restoration Act
Although March for Life is avowedly non—religious, the employee plaintiffs do
oppose the Mandate on religious grounds. See Compl. W 34, 124-51. They contend as
an initial matter that the Mandate violates the Religious Freedom Restoration Act, or
“RFRA,” codified at 42 U.S.C. § 2000bb et seq. Compl. W 124—36. I agree.
Congress enacted RFRA in response to the Supreme Court’s decision in
Employment Division, Department ofHuman Resources v. Smith, 494 US. 872 (1990),
which held that. as a matter of constitutional law, “neutral, generally applicable laws may
be applied to religious practices even when not supported by a compelling governmental
interest.” City ofBoerne v. Flores, 521 US. 507, 514 (1997). RFRA raises the bar via
statute, requiring that such laws must be narrowly-tailored if they substantially burden
religious exercise. “Under RF RA, the federal government may not ‘substantially burden’
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a person’s religious exercise—even where the burden results from a religiously neutral,
generally applicable law that is constitutionally valid under Smith—unless the imposition
of such a burden is the least restrictive means to serve a compelling governmental
interest." Priests For Life v. US. Dep ’t ofHealth & Human Servs., 772 F.3d 229, 236-37
(DC. Cir. 2014); see 42 U.S.C. § 2000bb-1(b). Congress found that this test allows
courts to "strik[e] sensible balances between religious liberty and competing prior
governmental interests.” 42 U.S.C. § 2000bb(a)(5).
The threshold question, thus, is whether the employee plaintiffs have demonstrated
that the Mandate substantially burdens their sincere exercise of religion. See Sample v.
Lappin, 424 F. Supp. 2d 187, 192 (D.D.C. 2006) (explaining burden-shifting analysis
under RFRA). The employee plaintiffs affirm that they “sincerely hold religious beliefs
against using, supporting, or otherwise advocating the use of abortifacients, or
participating in a health insurance plan that covers such items for themselves or their
families,” Compl. 7 125, and defendants assert that they “do not dispute that the
employee plaintiffs’ desire not to participate in a health insurance plan that covers
contraceptives is a sincere religious belief," Defs.’ Opp’n at 30.
However, elsewhere in their brief, defendants argue that “[n]o one is required to
use her health coverage for services that she does not want, and it is not a burden on a
person’s religion to participate in a group health plan that covers services that she will not
use.” Defs.’ Opp’n at 29. Despite defendants’ proclamation that they do not dispute the
sincerity of plaintiffs’ religious beliefs, this argument is a thinly veiled attack on those
beliefs. Employee plaintiffs swear that participation in a plan covering contraceptives
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violates their beliefs. Compl. H 125. Defendants’ argument that such participation “is not
a burden" at all is, in essence, a dispute about what plaintiffs’ religious beliefs are.
It is not, of course, this Court’s role to “determine what religious observance
[plaintiffs‘] faith commands,” and I do not do so here. See Priests For Life, 772 F.3d at
247; see also Burwell v. Hobby Lobby Stores, Inc, 134 S. Ct. 2751, 2779 (2014)
(explaining that the Court’s “narrow function . . . in this context is to determine whether
the line drawn reflects an honest conviction, and there is no dispute that it does” (citation
and internal quotation marks omitted)). The situation presented in this case is unlike the
one presented in Priests for Life, where our Circuit Court held that the Mandate did not
substantially burden accommodated organizations’ beliefs against providing, paying for,
or facilitating access to contraception because it found the Mandate did not, in fact,
require them to do that which they opposed. Priests For Life, 772 F.3d at 246-47; see
also id. at 252—54. Here, employee plaintiffs assert that they hold religious beliefs against
participating in a health insurance plan that covers contraceptives, and there is no dispute
that the existence of the Mandate requires them either to so participate, or to forego
health insurance coverage and pay a penalty.
Defendants argue that the Mandate acts on employers and health plans, not
individual employees, and therefore does not substantially burden employee plaintiffs”
exercise of religion. Defs.’ Opp’n at 30; see Priests For Life, 772 F.3d at 247 (“Whether
a law substantially burdens religious exercise under RFRA is a question oflaw for courts
to decide, not a question of fact”). I disagree. While it is true that “[a]n asserted burden
is also not an actionable substantial burden when it falls on a third party, not the religious
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adherent,” Priests For Life, 772 F.3d at 246, health insurance does not exist
independently of the people who purchase it. Indeed, we commonly refer to such
purchasers as health plan “participants.” A participant pays premiums into a plan in
exchange for coverage for his or her future health needs. Given the nature of health
insurance, employee plaintiffs do play a role in the health care plans that provide
contraceptive coverage. Cf. Kaemmerlmg v. Lappin. 553 F.3d 669, 679 (DC. Cir. 2008)
(noting that burdens arise from the affirmative exercise of a particular act). Even though
employee plaintiffs are not the direct objects of the Mandate, they are thus very much
burdened by it.
“A substantial burden exists when government action puts substantial pressure on
an adherent to modify his behavior and to violate his beliefs.” Id. at 678 (citations and
internal quotation marks omitted). Such pressure exists here. The Mandate, in its current
form, makes it impossible for employee plaintiffs to purchase a health insurance plan that
does not include coverage ofcontraceptives to which they object. If their employer,
March for Life, continues to provide a health insurance plan, it must include
contraceptive coverage, as must any plan available for individual purchase on a state
health exchange. Employee plaintiffs are thus caught between the proverbial rock and a
hard place: they can either buy into and participate in a health insurance plan that
includes the coverage they find objectionable and thereby violate their religious beliefs,
or they can forgo health insurance altogether and thereby subject themselves to penalties
for violating the ACA’s individual mandate, codified at 26 U.S.C. § 5000A. Either way,
employee plaintiffs must act. and may not maintain health insurance consistent with their
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provisions mandates that group health plans and insurers offering group or individual
health insurance coverage must cover certain preventive health services without imposing
cost sharing requirements on plan participants or beneficiaries. 42 U.S.C. § 300gg—13(a).
The required preventive services include items or services rated an “A” or “B” by the
United States Preventive Services Task Force; immunizations recommended by the
Centers for Disease Control and Prevention’s Advisory Committee on Immunization
Practices; and preventive care and screenings for women as “provided for in
comprehensive guidelines supported by the Health Resources and Services
Administration” (“HRSA”), a section within HHS. 42 U.S.C. § 300gg-l3(a)(l)-(4).
In keeping with the ACA’s provisions, HHS directed a third party, the Institute of
Medicine (“IOM”), to recommend which services and care should be included under the
aegis of women’s preventive services. IOM, Clinical Preventive Services for Women:
Closing the Gaps (201 l) (“IOM Report"), AR2 at 285-534. IOM did so, and the ensuing
HRSA Guidelines, published in August 2011, adopted IOM’s recommendations. HRSA,
Women ’5 Preventive Services Guidelines (Aug. 1, 201 l),
http://www.hrsa.gov/womensguidelines/. The HRSA Guidelines provide that, among
other things, “[a]ll Food and Drug Administration approved contraceptive methods,
sterilization procedures, and patient education and counseling for all women with
reproductive capacity” will be covered by the ACA without cost sharing. Id. F DA-
approved contraceptive methods include hormonal contraceptives, such as birth control
pills, intrauterine devices, and emergency contraception. IOM Report at 105, AR 403.
2 Parallel citations to the administrative record [Dkt. #23] are denoted “AR.”
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religious beliefs. This is not a case ofa government program with “incidental effects . . .
which may make it more difficult to practice certain religions,” but rather one which has
a “tendency to coerce individuals into acting contrary to their religious beliefs.” See
Lyng v. Nw. Indian Cemetery Protective Ass ’n, 485 US. 439, 450 (1988). Thus, the
Mandate imposes a substantial burden on employee plaintiffs’ exercise of religion.
In light of this substantial burden to employee plaintiffs’ exercise of religion,
defendants must demonstrate that the Mandate (l) furthers a compelling government
interest. and (2) is the least restrictive means of doing so. 42 U.S.C. § 2000bb—1(b);
Hobby Lobby, 134 S. Ct. at 2779. Our Circuit Court has concluded that the Mandate, in
general, does further compelling government interests. “The government has overlapping
and mutually reinforcing compelling interests in promoting public health and gender
equality. The contraceptive coverage requirement specifically advances those interests.”
Priests For Life, 772 F.3d at 263-64; see also id. at 259 (“[C]ompelling interests
converge to support the government’s decision, reflected in the challenged regulations, to
provide cost-free contraceptive coverage and to remove administrative and logistical
obstacles to accessing contraceptive care").
The government’s assertion of a compelling interest in the Mandate in general is
not sufficient to satisfy the standard established by RFRA. Instead, “the compelling
interest test [must be] satisfied through application ofthe challenged law ‘to the
person’wthe particular claimant whose sincere exercise of religion is being substantially
burdened." Gonzales v. 0 Centro Espirita Beneficenre Uniao do Vegetal, 546 US. 418,
430-31 (2006) (quoting 42 U.S.C. § 2000bb-1(b)). The Court “must look beyond the
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broadly formulated interests justifying the general applicability of the statute to examine
the interests the government seeks to promote as applied to [the particular plaintiff] and
the impediment to those objectives that would flow from granting [her] a specific
exemption.” Kaemmerling, 553 F.3d at 682 (internal quotation marks omitted).
“The challenged regulations seek to ensure timely and effective access to
contraception for all women who want it and for whom it is medically appropriate.”
Priests For Life, 772 F.3d at 257. As employee plaintiffs repeatedly point out, they do
not want such access. See, e.g., Compl. W 1, 32-35, 125. But our Circuit Court also
recognized the government’s compelling interest “in a sustainable system of taxes and
subsidies under the ACA to advance public health.” Priests For Life, 772 F.3d at 258.
And as just noted, the Court held that the seamless provision of cost-free contraceptive
coverage advances public health. Id. at 263—64. A program requiring broad
participation—including some who do not wish to use certain aspects ofthe coverage—
does serve the government’s interest in a functional and sustainable insurance system.
Of course, that is not the end ofthe inquiry. The final question the Court must ask
under RF RA is whether the current Mandate is the least restrictive means of serving this
governmental interest. Assuredly, it is not! The inquiry at this stage “focus[es] on the
context of the religious objectors, and consider[s] whether and how the government‘s
compelling interest is harmed by granting specific exemptions to particular religious
claimants. [A Court] must look to the marginal interest in enforcing the regulation to
which the plaintiffs object.” Priests For Life, 772 F.3d at 264 (citations and internal
quotation marks omitted).
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In arguing that the current set-up is the least restrictive means of ensuring a
functioning health insurance system that covers contraceptives for those who want them,
defendants rely heavily on United States v. Lee, 455 US. 252 (1982), a pre-Srnz'th free
exercise case.10 See Defs.’ Opp’n at 33. In Lee, the Supreme Court held that an Amish
man could not, in essence, “opt out" of the Social Security system even though it
conflicted with his religious beliefs. 455 US. at 261. The Court explained that
“mandatory participation is indispensable to the fiscal vitality of the social security
system” and “a comprehensive national social security system providing for voluntary
participation would be almost a contradiction in terms and difficult, if not impossible, to
administer.” Id. at 258. Therefore “it would be difficult to accommodate the
comprehensive social security system with myriad exceptions flowing from a wide
variety of religious beliefs.”11 Id. at 259—60.
Defendants say the same is true here. They contend that “[i]nsurance markets
could not function—either administratively or financially—if insurers had to tailor each
health plan to the specific needs and desires of each individual plan participant and
beneficiary.” Defs.’ Opp’n at 31. They raise the specter ofindividuals “pick[ing] and
'0 Courts look to pie-Smith free exercisejurisprudence when analyzing RFRA claims. See Tyndale House
Publishers, Inc. v. Sebelius, 904 F. Supp. 2d 106, 120 (D.D.C. 2012).
1‘ As defendants point out, this reasoning has been employed by other courts, primarily, but not
exclusively, in the tax context. See Defs.’ Opp’n at 32-33; see also, e.g., Hernandez v. Comm ’r of
Internal Revenue, 490 US. 680. 699—700 (1989) (applying the reasoning in Lee in a case involving
federal income taxes). In the health insurance context, the Ninth Circuit denied student plaintiffs” RFRA
challenge to the mandatory fee for their public university’s health insurance program, which covered
certain services to which plaintiffs objected. See Goehring v. Broplzy, 94 F.3d 1294 (9th Cir. 1996),
overruled on other grounds by City ofBoerne v. Flores, 521 US. 507 (1997). There, the Ninth Circuit
explained that “the fiscal vitality ofthe University‘s fee system would be undermined if the plaintiffs in
the present case were exempted from paying a portion of their student registration fee on free exercise
grounds. Mandatory uniform participation by every student is essential to the insurance system’s
survival.” Id. at 1301.
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choos[ing]” from a long list of preventive services what their plans will and will not
cover, arguing that this “would be an impossible administrative undertaking. . . . [and]
would all but lead to the end of group health coverage.” Defs.’ Opp’n at 32. Please!
Defendants overlook a critical distinction. Unlike in Lee, the government does not
provide the insurance at issue here, and there is no single “comprehensive national
[health insurance] system.” See Lee, 455 US. at 258. Instead, the government regulates
a host of third party insurers. The Mandate burdens employee plaintiffs’ religious
exercise by restricting the form in which those third parties can offer something that
plaintiffs, for all intents and purposes, must buy.
There is, of course, a simple solution: prohibit the government from enforcing the
Mandate against, and penalizing, a third—party insurer that offers individual employee
plaintiffs insurance plans consistent with their sincerely held religious beliefs. This
removes the burden imposed on employee plaintiffs by the government by allowing an
insurance company to offer them plans in the individual market consistent with their
beliefs. The government need not require an insurer offer such a plan at plaintiffs’
request in order to avoid burdening plaintiffs” religious exercise.
March for Life’s insurer has represented that it will offer individual employee
plaintiffs the type of plan they desire. CareFirst Letter, Ex. A to Monahan Affidavit.
However, if it declines to do so, now or at some point in the future, and plaintiffs are
unable to purchase a plan consistent with their beliefs, their inability would be a product
of market or other forces, not the government regulation, and would therefore not
implicate RFRA.
Defendants’ parade of horribles necessarily looks beyond the employee plaintiffs
in this particular case and purports to project what would happen if other individuals
assert similar obj ections.12 However, defendants seem to envisage a world in which the
government would require third-party insurance companies to provide coverage in every
possible form requested by an individual on religious grounds.13 That, most assuredly, is
not the action the Court is taking here.
Insurance companies have every incentive to maintain a sustainable and
functioning market, and the government’s interest in the same would not be undermined
by simply making it legal for a third-party provider to offer, without penalty, a plan
consistent with plaintiffs” religious beliefs. If, as defendants suggest, offering an
insurance plan that does not include a service or services to which a potential purchaser
objects on religious grounds would be “an impossible administrative undertaking,”
insurance companies will not do it. One particular religious accommodation may make
actuarial sense, while another may not. A company may even choose not to entertain
possible changes as a matter of policy ifit deems the cost of analysis too high. Those
decisions can, and should be, left to private actors.
‘3 Note that here, as in Hobby Lobby, the defendants argue that ruling in favor of plaintiffs here “will lead
to a flood of religious objections regarding a wide variety of medical procedures and drugs, such as
vaccinations and blood transfusions, but [the government] has made no effort to substantiate this
prediction." See 134 S. Ct. at 2783.
'3 At oral argument, however, the government does acknowledge the possibility ofthe approach taken by
the Court: “[I]fthis court ordered that, owing to RFRA, for example, an issuer needed to be permitted to
sell the employee plaintiffs an individual plan that accorded with their religious beliefs, they could,
indeed, take that to an insurer in the market for individual plans and receive that coverage.” Nov. 6, 2014
Mot. Hr’g Tr. 29:20—25.
25
The remedy here is limited, and has no effect on the Mandate’s application to
employers or to individuals who do want contraceptive coverage included without cost
sharing. Prohibiting the government from punishing a company that offers a modified
plan to an employee plaintiff who certifies that she objects on religious grounds to
otherwise-required contraceptive coverage does not enable that company to refuse to
provide such coverage to others who do not share those religious objections. Thus,
employee plaintiffs’ RFRA claim is clearly independent of their employer, and has no
impact on March for Life’s obligations under the Mandate. As such, the Mandate is
additionally in violation of RFRA and plaintiffs” Second Claim for Relief must also be
granted.
IV. Free Exercise
Although the decision on employee plaintiffs’ RFRA challenge grants them the
individual relief they seek, I must still address their First Amendment free exercise claim
briefly, because our Circuit Court has spoken to this issue recently.
Under the First Amendment’s protection of the free exercise of religion, “a law
that is neutral and of general applicability need not be justified by a compelling
governmental interest even if the law has the incidental effect of burdening a particular
religious practice.” Church ofthe Lukumi Babalu Aye, Inc. v. City osz'aZeah, 508 US.
520, 531 (1993) (citing Smith, 494 US. 872); see also Kaemmerling, 553 F.3d at 677. If
a law is not neutral or generally applicable, it is subject to strict scrutiny. Lukumi, 508
US. at 531-32 (“A law failing to satisfy these requirements must bejustifled by a
compelling governmental interest and must be narrowly tailored to advance that
26
interest”). The employee plaintiffs contend that the Mandate is not neutral and
generally applicable, and therefore their Free Exercise claim must be evaluated using
strict scrutiny. See Pls.’ Mot. at 17-19.
A neutral regulation does not “targetfl religious conduct for distinctive treatment,"
Lukumi, 508 US. at 534. A regulation is not neutral ifits “object . . . is to infringe upon
or restrict practices because of their religious motivation” or if it “refers to a religious
practice without a secular meaning discernable from the language or context.” Id. at 533.
“General applicability” in the free exercise context “does not mean absolute
universality.” Olsen v. Mukasey, 541 F.3d 827, 832 (8th Cir. 2008). To be generally
applicable, a regulation “cannot in a selective manner impose burdens only on conduct
motivated by religious belief,” and the court looks to whether the enacting body decided
“that the governmental interests it seeks to advance are worthy of being pursued only
against conduct with a religious motivation.” Lukumi, 508 US. at 542-43.
After the initial briefing in this case, our Circuit Court analyzed whether the
Mandate violated a religious organization’s free exercise rights in Priests For Life, 772
F.3d 229. Plaintiffs in Priestsfor Life, like the employee plaintiffs here, contended “that
the exemptions provided to houses of worship and grandfathered plans render the
contraceptive coverage requirement non-neutral and not generally applicable.” Id. at
268; see Pls.’ Mot. at 17-19. The Priestsfor Life Court found their arguments unavailing
and concluded that “[t]hose exemptions, however, do not impugn the contraceptive
coverage requirement’s neutrality and generality: it is both, in the relevant sense of not
selectively targeting religious conduct, whether facially or intentionally, and broadly
27
applying across religious and nonreligious groups alike.” Priestsfor Life, 772 F.3d at
268. The exemptions “do not amount to the kind of pattern of exemptions from a facially
neutral law that demonstrate that the law was motivated by a discriminatory purpose,”
and the Mandate “applies across the board," rather than “target[ing] religious
organizations.” Id.
The relevant questions regarding the Mandate’s neutrality and general
applicability are no different in this case, even though plaintiffs are religious individuals
rather than religious non—profits. The underlying Mandate itself remains the same. Just
as the exemptions that do exist do not “render the law so under-inclusive as . . . to suggest
that disfavoring Catholic or other pro-life employers was its objective,” id, nor do they
suggest that disfavoring religious individuals—who are not even acted upon directly by
the Mandate—was its objective. “The exemptions in the ACA do not single out any
religion and are wholly consistent with the law’s neutral purpose.” 102’.
Our Circuit’s ruling that the Mandate is neutral and generally applicable, and thus
not subject to strict scrutiny under the free exercise clause, precludes employee plaintiffs’
Claim here. “The right of free exercise protected by the First Amendment “does not
relieve an individual of the obligation to comply with a valid and neutral law of general
applicability on the ground that the law proscribes (or prescribes) conduct that his
religion prescribes (or proscribes)” Kaemmerling, 553 F.3d at 677 (quoting Smith, 494
U.S. at 879). The fact that the government requires via a neutral, generally-applicable
regulation that the employee plaintiffs participate in an insurance plan that covers
contraception does not violate their free exercise rights. Plaintiffs have therefore not
28
stated a free exercise claim upon which relief can be granted. As such, their Third Claim
for Relief must be dismissed.
CONCLUSION
For all the foregoing reasons, the Court GRANTS in part plaintiffs’ Motion for
Summary Judgment. Specifically, the Court GRANTS plaintiffs’ Motion as to plaintiffs’
First Claim for Relief under the equal protection clause of the Fifth Amendment, their
Second Claim for Relief under the RFILA, and their Fourth Claim for Relief under the
Administrative Procedure Act, but DENIES their Motion as to plaintiffs’ Third Claim for
Relief under the free exercise clause of the First Amendment. The Court further
GRANTS defendants’ Motion to Dismiss as to plaintiffs’ Third Claim for Relief, but
DENIES the remainder of defendants’ Motion to Dismiss, or in the Alternative, for
Summary Judgment, as to plaintiffs’ First, Second, and Fourth Claims for Relief.
Defendants are hereby permanently ENJOINED from enforcing against plaintiff March
for Life, its health insurance issuer, and the insurance issuer(s) of employee plaintiffs
Jeanne Monahan and/or Bethany Goodman, the statutes and regulations requiring a health
insurance issuer to include contraceptive coverage in plaintiffs’ health insurance plans.
An Order consistent with this decision accompanies this Memorandum Opinion.
0/
RICHARD J. LE
United States District Judge
29
Together, the ACA preventive services coverage provision, the HRSA Guidelines, and
the HHS, Labor, and Treasury implementing regulations, form What is colloquially
referred to as the “Contraceptive Mandate,” or, here, simply the “Mandate.”
The Mandate is not without its opponents. In the wake ofits issuance, HHS was
deluged with concerns about “imposing on certain religious employers through binding
guidelines the requirement to cover contraceptive services that would be in conflict with
the religious tenets ofthe employer.” 76 Fed. Reg. 46,621, 46,625 (Aug. 3, 2011). To
preserve the “unique relationship between a house of worship and its employees in
ministerial positions,” and to prevent the Mandate from “imping[ing]” upon religious
employees” faith—based objections to contraceptives, HHS promulgated an interim
regulation granting HRSA “discretion to exempt certain religious employers from the
Guidelines where contraceptive services are concerned.” 76 Fed. Reg. at 46,623. The
interim regulation was adopted, without change, as a final rule in February 2012. See 77
Fed. Reg. 8,725 (Feb. 15, 2012). The story, however, does not end there. Besieged by
concerns that this safe harbor did not fully resolve fears about imposing the Mandate on
classes of individuals that object to the use of contraceptives, HHS initiated a notice-and-
comment rulemaking procedure. See 77 Fed. Reg. 16,501, 16,503 (Mar. 21, 2012).
At the conclusion ofthis rulemaking process in 2013, HHS arrived at the rule in
place at the time the Complaint in this case was filed.3 Under this final rule, HRSA was
given authority to exempt from the Mandate health plans “established or maintained by
3 The government issued another set of interim final regulations in August 2014, but they did not change
the religious exemption described herein. See 79 Fed. Reg. 51,092 (Aug. 27, 2014); 79 Fed. Reg. 51,l l 8
(Aug. 27, 2014).
religious employers.” 78 Fed. Reg. 39,870, 39,873 (July 2, 2013). As defined in the
regulation, “religious employers” are confined to “churches, their integrated auxiliaries,
and conventions or associations of churches as well as to the exclusively religious
activities of any religious order.” 78 Fed. Reg. at 39,874. Secular non-profit
organizations, regardless of their employees’ views on contraceptives, are thus excluded
from this exemption. HHS reasoned that a narrow religious employer exemption was
necessary to accomplish two objectives. First, it addressed HHS’s desire to “respect the
religious interests ofhouses of worship and their integrated auxiliaries.” 78 Fed. Reg. at
39,874. Second, it accommodated these religious interests without undermining “the
governmental interests furthered by the contraceptive coverage requirement,” i.e.—the
provision of contraceptive coverage to women who “want it.” 78 Fed. Reg. at 39,874;
see 77 Fed. Reg. at 8,727. As to the latter objective, HHS opined that the Mandate’s
central purpose would remain undisturbed because employees of religious organizations
would be less likely than employees of secular organizations to want contraceptive
coverage in the first instance. Specifically, “[h]ouses of worship and their integrated
auxiliaries that object to contraceptive coverage on religious grounds are more likely than
other employers to employ people of the same faith who share the same objection, and
who would therefore be less likely than other people to use contraceptive services even if
such services were covered under their plan.” 78 Fed. Reg. at 39,874 (emphasis added).4
4 HHS also devised another mechanism to address the concerns of certain religious non-profit
organizations that do not qualify for the exemption. Under its “religious accommodation,” an eligible
organization can opt out of providing contraceptive coverage through its employer—sponsored plan, in
which case the third-party administrator separately provides employees coverage. See 78 Fed. Reg. at
39,874-82. This accommodation applies only to employers claiming a religious objection to providing
5
HHS did not, however, supply a rationale for subjecting to the Mandate secular non—
profit groups whose employees share an analogous objection to the use of certain
contraceptives.5
11. Parties
March for Life is a non-profit, non-religious pro-life organization founded in 1973
following the Supreme Court’s decision in Roe v. Wade, 410 US. 113 (1973). Compl.
1111 5, 16. March for Life holds as a foundational tenet the idea that life begins at
conception. Id. at $1 1. March for Life defines conception as fertilization of an egg by a
sperm, and thus considers a human embryo to be an unborn human life. Id. at 1111 l, 19.
March for Life will not support abortion in any way. and, as such, opposes coverage in its
health insurance plan for contraceptive methods it deems “abortifacients.” Id. at '11 20.
March for Life believes that hormonal contraceptives, IUDs, and emergency
contraception can, and in some cases do, prevent the implantation into the uterus of a
fertilized human embryo, and making them abortifacients; See id. at 11 49.
contraceptive coverage, though it now looks to be extended beyond the original non—profit scope by the
Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc, 134 S. Ct. 2751 (2014). March for
Life does not qualify for an accommodation because it is not religious. Compl. at '11 91. March for Life
focuses on the fact that it is not included within the scope ofthe religious employer exemption, and does
not argue that it should be, or wants to be, included within the scope ofthe accommodation regulation. In
addition to those plans offered by exempt religious employers, certain other plans need not provide
contraception coverage. Plans that were created prior to March 23, 2010, and have not made specified
changes (“grandfathered plans"), are not required to comply with, among other things, the preventive
services mandate. 42 USC. § 18011. This allows certain plans that did not previously offer
contraceptive coverage to continue declining to do so. In addition, religious health plans not governed by
ERlSA (“church plans”) need not cover contraceptives. See 79 Fed. Reg. at 51,095 n.8.
5 HHS made passing reference to the fact that “[s]ome commenters requested that the definition of
eligible organization be broadened to include nonprofit secular employers and for-profit employers with
religious objections to contraceptive coverage.” 78 Fed. Reg. at 38,874. HHS, however, “decline[d] to
adopt these suggestions.” 78 Fed. Reg. at 39,875.
March for Life offers health insurance to its employees. See id. at W 6-7, 22.
March for Life does not qualify for the religious exemption because it is not religious,
much less a house of worship or integrated auxiliary. Id. at {l 63. Nor is its health
insurance plan a “grandfathered plan,” because it did not exist prior to the passage ofthe
ACA in 2010. Id. at ‘ll 23. March for Life’s insurance carrier has indicated that it would
be willing to offer March for Life a health insurance plan that does not include coverage
for abortifacients if it were legally permissible to do so. Id. at ll 25; CareFirst Letter, Ex.
A to Affidavit of P1. Jeanne F. Monahan (“Monahan Affidavit”) [Dkt #27].
March for Life only hires individuals who oppose all forms of abortion, including
contraceptives that the organization believes are abortifacients. Compl. 1] 21. This
includes the two individual employee plaintiffs here: Jeanne Monahan, a Catholic, is
President of March for Life, and Bethany Goodman, an Evangelical Protestant, is one of
the organization’s employees. Id. at W 6-7, 27. Both employee plaintiffs participate in
the insurance plan currently offered by March for Life. Id. at W 6—7.
The employee plaintiffs state that their religious faiths prohibit them from using or
supporting the use of abortifacient drugs and devices. 1d. at 1] 32. They, like the
organization they work for, believe that certain of the FDA-approved contraceptives are
abortifacients. Id. at ll 49. On the basis ofthese “sincere and deeply held religious and
moral beliefs against abortion and abortifacients,” employee plaintiffs oppose having
insurance coverage for contraceptives they deem abortifacients and object to participating
in a health insurance plan that provides them such coverage. Id. at W 33-34.
III. Procedural History
Plaintiffs filed the instant suit in July 2014. Compl. Not all claims are alleged by
all plaintiffs. March for Life alone claims that the Contraceptive Mandate and the
attendant religious employer exemption violate its right to equal protection under the
Fifth Amendment. Compl. W 1 13-123 (First Claim for Relief). All plaintiffs claim that
the Mandate is unlawful and must be set aside under the Administrative Procedure Act, 5
U.S.C. § 706, (“APA”) for two separate reasons: (1) it is arbitrary and capricious because
it does not serve a rational government interest as applied to an organization employing
only people who are opposed to contraceptive coverage, while exempting churches; and
(2) it violates the Constitution and federal laws. Compl. M 152-161 (Fourth Claim for
Relief).
The employee plaintiffs also bring challenges based on their religious beliefs.
They claim that that applying the Mandate to their health insurance plans violates their
rights under the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq, Compl.
M 124-136 (Second Claim for Relief), as well as under the First Amendment’s Free
Exercise clause, id. M 137-151 (Third Claim for Relief).6
6 The government initially challenged employee plaintiffs’ standing on the grounds that they needed to
submit evidence that their alleged injury here would be redressed by a favorable decision by this Court,
because a third party (an insurer) would have to make the decision to offer employee plaintiffs insurance
without contraception coverage. See Defs.’ Opp’n at 22-28. At the request of the Court, plaintiffs
submitted a letter received from March for Life’s insurance carrier, CareFirst BlueCross BlueShield. The
letter states that “CareFirst would be willing to offer March for Life or its employees a plan omitting the
contraceptive coverage that they are objecting to” “[i]fa legal exemption from [the Mandate] is
obtained.” CareFirst Letter, Ex. A to Monahan Affidavit. This addresses the government’s concerns, and
the employee plaintiffs, as such, have standing to bring their claims.
8
Plaintiffs request that the Court declare the Mandate unconstitutional and contrary
to federal law, and enjoin defendants from continuing to apply the Mandate to plaintiffs
and their insurers, such that March for Life can provide, and its employees can participate
in, health insurance plans that do not provide coverage for the opposed contraceptives.
Compl. at 28—29.
In September 2014, plaintiffs moved for a preliminary injunction and consolidated
trial on the merits on all of their claims. Pls.’ Mot. Defendants opposed and moved to
dismiss, or, in the alternative, for summary judgment. Defs.’ Opp’n. I heard oral
argument on November 6, 2014, see November 6, 2014 Minute Entry, and received
supplemental briefing from both sides on December 10, 2014, see Defendants’
Supplemental Brief [Dkt. #28]; Plaintiffs’ Supplemental Brief [Dkt. #29].
LEGAL STANDARD
The questions raised by the parties are matters of law, and they have been fully
briefed. There are no material factual disputes regarding the administrative record or the
allegations in plaintiffs’ Verified Complaint.7 Accordingly, the record is sufficient for a
determination on the merits under the summary judgment standard, or, where reliance on
the record is unnecessary, under the motion to dismiss standard. I consolidate the
preliminary injunction with trial on the merits on all claims pursuant to Federal Rule of
Civil Procedure 65(a)(2). and, therefore, do not need to analyze the typical preliminary
injunction factors.
7 As described above, plaintiffs also have supplemented the record with one additional affidavit and an
attached exhibit for the purposes of establishing standing. See Monahan Affidavit.
9
1. Rule 12(b)(6) Dismissal
The Court may dismiss a complaint or any portion thereof for failure to state a
claim upon which reliefmay be granted. See Fed. R. Civ. P. 12(b)(6). At the motion to
dismiss stage, the Court “may consider only the facts alleged in the complaint, any
documents either attached to or incorporated in the complaint and matters of which [the
court] may take judicial notice.” EEOC. v. St. Francis Xavier Parochial Sch, 117 F.3d
621, 624 (DC. Cir. 1997). To survive a motion to dismiss, a plaintiff must plead “factual
content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 US. 662, 678 (2009). The Court
must “accept as true all of the allegations contained in a complaint.” Id. However, the
Court need not “accept legal conclusions cast in the form of factual allegations,” nor
“inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in
the complaint.” Kowal v. MCI Commc’ns Corp, 16 F.3d 1271, 1276 (DC. Cir. 1994).
11. Rule 56(a) Summary Judgment
Where a plaintiff s complaint properly states a claim, summary judgment is the
appropriate method by which to resolve the merits ofa dispute regarding federal agency
action “because the . . . regulation’s validity is a question oflaw.” See Lederman v.
United States, 89 F. Supp. 2d 29, 33 (D.D.C. 2000), on reconsideration inpart, 131 F.
Supp. 2d 46 (D.D.C. 2001). Summary judgment is warranted when the evidence in the
record demonstrates that “there is no genuine dispute as to any material fact and the
10