Priests for Life v. United States Department of Health and Human Services

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
)
PRIESTS FOR LIFE, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 13-1261 (EGS)
)
UNITED STATES DEPARTMENT OF )
HEALTH AND HUMAN SERVICES, )
et al. )
)
Defendants. )
________________________________ )
MEMORANDUM OPINION
This case presents one of many challenges to the
contraceptive services mandate of the Affordable Care Act
(“ACA”), Pub. L. No. 111-148, 124 Stat. 119 (2010). A number of
circuits, including the District of Columbia Circuit, have
examined the mandate’s requirements regarding contraceptive
coverage for employees of for-profit companies; that issue is
now pending before the Supreme Court. See Hobby Lobby Stores,
Inc. v. Sebelius, 723 F.3d 1114, (10th Cir. 2013) (en banc),
cert. granted, 2013 U.S. LEXIS 8418 (U.S. Nov. 26, 2013) (Case
No. 13-354); Conestoga Wood Specialties Corp. v. Sebelius, 724
F.3d 377 (3d Cir. 2013), cert. granted, 2013 U.S. LEXIS 8418(U.S. Nov. 26, 2013) (No. 13-354); see also, e.g., Gilardi v.
United States Dep’t of Health and Human Services, 733 F.3d 1208(D.C. Cir. 2013).
The instant case presents a different issue: the
obligations, vel non, of non-profit religious organizations to
provide contraceptive coverage under the mandate. These
organizations are eligible for an accommodation to the mandate;
specifically, they are not required to provide contraceptive
coverage to their employees if they object to doing so on
religious grounds. Under the regulations, an employer in this
situation can self-certify to its health insurance issuer that
it has a religious objection to providing coverage for
contraceptive services as part of its health insurance plan.
Once the issuer receives the self-certification, the non-profit
organization is exempt from the mandate. The organization’s
employees will receive coverage for contraceptive services, but
that coverage will be provided directly through the issuer. The
coverage is excluded from the employer’s plan of benefits, and
the issuer assumes the full costs of coverage; it is prohibited
from charging any co-payments, deductibles, fees, premium hikes
or other costs to the organization or its employees.
Priests for Life, a non-profit organization which takes a
“vocal and active role in the pro-life movement,” Complaint ¶
73, and three of its employees have filed this lawsuit objecting
to the accommodation to the mandate. They allege that the self-
certification Priests for Life must provide to its issuer
violates their rights under the Religious Freedom Restoration
2
Act, 42 U.S.C. §§ 2000bb, et seq. (“RFRA”), and the First and
Fifth Amendments to the Constitution.
The Supreme Court has made clear that religious exercise is
impermissibly burdened when government action compels
individuals “to perform acts undeniably at odds with fundamental
tenets of their religious beliefs.” Wisconsin v. Yoder, 406
U.S. 205, 218 (1972). At the same time, acts of third parties,
which do not cause adherents to act in violation of their
religious beliefs, do not constitute an impermissible burden.
Kaemmerling v. Lappin, 553 F.3d 669, 678 (D.C. Cir. 2008). The
right to religious freedom “simply cannot be understood to
require the Government to conduct its [] affairs in ways that
comport with the religious beliefs of particular citizens.”
Bowen v. Roy, 476 U.S. 693, 699 (1986). Religious freedom is
protected “in terms of what the government cannot do to the
individual, not in terms of what the individual can exact from
the government.” Lyng v. N’west Indian Cemetery Protective
Assn., 485 U.S. 439, 451 (1988) (citations omitted).
Plaintiffs here do not allege that the self-certification
itself violates their religious beliefs. To the contrary, the
certification states that Priests for Life is opposed to
providing contraceptive coverage, which is consistent with those
beliefs. Indeed, during oral argument, plaintiffs stated that
they have no religious objection to filling out the self-
3
certification; it is the issuer’s subsequent provision of
coverage to which they object. But filling out the form is all
that the ACA requires of the plaintiffs in this case.
There is no doubt that the plaintiffs find the statute’s
requirement that the issuer provide contraceptive coverage
profoundly opposed to their religious scruples. But the
issuer’s provision of coverage is just that -- an entirely third
party act. The issuer’s provision of coverage does not require
plaintiffs to “perform acts” at odds with their beliefs. Yoder,
406 U.S. at 218. Accordingly, the accommodations to the
contraceptive services mandate do not violate their religious
rights.
Pending before the Court is the plaintiffs’ motion for
summary judgment and the defendants’ cross motion to dismiss or
in the alternative for summary judgment. Upon consideration of
the motions, the oppositions and replies thereto, the Amicus
Curiae brief of the American Civil Liberties Union, the entire
record, and for the reasons explained below, defendants’ motion
to dismiss is GRANTED; accordingly, the parties’ motions for
summary judgment are hereby DENIED AS MOOT.
I. BACKGROUND
Priests for Life is a non-profit corporation incorporated
in the State of New York, and Father Frank Pavone, Alveda King,
and Janet Morana are among its employees. Compl. ¶¶ 6-11. “A
4
deep devotion to the Catholic faith is central to the mission of
Priests for Life.” Compl. ¶ 85. Its mission is to “unite and
encourage all clergy to give special emphasis to the life issues
in their ministry . . . [and] to help them take a more vocal and
active role in the pro-life movement.” Compl. ¶ 73.
Accordingly, “contraception, sterilization, abortifacients1 and
abortion . . . are immoral and antithetical to Priests for
Life’s religious mission.” Id. Priests for Life provides
health insurance for its employees. Compl. ¶ 93. The next plan
year will commence on January 1, 2014. Compl. ¶ 101.
Plaintiffs’ claims arise out of certain regulations
promulgated in connection with the ACA. The Act requires all
group health plans and health insurance issuers that offer non-
grandfathered group or individual health coverage to provide
coverage for certain preventive services without cost-sharing,
including, for “women, such additional preventive care and
screenings . . . as provided for in comprehensive guidelines
supported by the Health Resources and Services Administration
[(“HRSA”)].” 42 U.S.C. § 300gg-13(a)(4). The HRSA, an agency
within the Department of Health and Human Services (“HHS”),
commissioned the Institute of Medicine (“IOM”) to conduct a
1
Plaintiffs use the word “abortifacient” to refer to drugs such
as Plan B and Ella that they allege cause abortions. See, e.g.,
Compl. ¶ 37. Plaintiffs do not allege that the regulations will
require them to provide insurance coverage for the medical
procedure of abortion.
5
study on preventive services. On August 1, 2011, HRSA adopted
IOM’s recommendation to include “all Food and Drug
Administration approved contraceptive methods, sterilization
procedures, and patient education and counseling for women with
reproductive capacity.” See HRSA, Women’s Preventive Services:
Required Health Plan Coverage Guidelines (“HRSA Guidelines”),
available at http://www.hrsa.gov/womensguidelines/ (last visited
Dec. 17, 2013).
Several exemptions and safe-harbor provisions excuse
certain employers from providing group health plans that cover
women’s preventive services as defined by HHS regulations.
First, the mandate does not apply to certain “grandfathered”
health plans in which individuals were enrolled on March 23,
2010, the date the ACA was enacted. 75 Fed. Reg. 34,538 (June
17, 2010). Second, certain “religious employers” are excluded
from the mandate. See, e.g., 76 Fed. Reg. 46,621 (Aug. 3, 2011);
45 C.F.R. § 147.130(a)(1)(iv)(A). On June 28, 2013, the
government issued final rules on contraceptive coverage and
religious organizations; the rules became effective August 1,
2013. 78 Fed. Reg. 39,870 (July 2, 2013). These regulations
are the subject of this case.
Under the final regulations, a “religious employer” exempt
from the contraceptive services mandate is “an organization that
is organized and operates as a nonprofit entity and is referred
6
to in section 6033(a)(3)(A)(i) or (a)(3)(A)(iii) of the Internal
Revenue Code,” which refers to churches, their integrated
auxiliaries, and conventions or associations of churches, and
the exclusively religious activities of any religious order. 45
C.F.R. § 147.131(a). Non-profit organizations which do not
qualify for this exemption may, however, qualify for an
accommodation with respect to the contraceptive coverage
requirement if they are “eligible organizations” under the
regulations. An “eligible organization” must satisfy the
following criteria:
(1) The organization opposes providing coverage for some or
all of any contraceptive services required to be covered
under § 147.130(a)(1)(iv) on account of religious
objections.
(2) The organization is organized and operates as a non-
profit entity.
(3) The organization holds itself out as a religious
organization.
(4) The organization self-certifies, in the form and manner
specified by the Secretary, that it satisfies the
criteria in paragraphs (1) through (3), and makes such
self-certification available for examination upon request
by the first day of the first plan year to which the
accommodation applies.
45 C.F.R. § 147.131(b); see also 78 Fed. Reg. at 39,874-75.
Once an eligible organization provides a copy of a self-
certification to its issuer, which provides coverage in
connection with the group health plan, the organization is
relieved of its obligation “to contract, arrange, pay or refer
for contraceptive coverage” to which it has religious
7
objections. 78 Fed. Reg. at 39,874. The group health plan
issuer which receives the self-certification form must (1)
exclude contraceptive coverage from the group health insurance
coverage provided in connection with the group health plan, and
(2) provide separate payments for any contraceptive services
required to be covered for plan participants and beneficiaries.
The issuer may not impose any cost-sharing requirements (such as
a copayment, coinsurance or a deductible) on plan participants
or beneficiaries. 78 Fed. Reg. at 39,896. Likewise, the issuer
is prohibited from imposing any premium, fee, or other charge,
or any portion thereof, directly or indirectly, on the eligible
organization or the group health plan. Id. Failure to self-
certify or otherwise comply with the mandate will result in
Priests for Life’s issuer including contraceptive services
within Priests for Life’s healthcare policy, and charging the
organization for such coverage.2
2
During the initial briefing, the parties stated that if Priests
for Life refused the accommodation, it could be fined $100 per
employee per day. 26 U.S.C. § 4980D. At oral argument,
however, the government informed the court that the ACA imposes
an independent obligation on insurers to sell policies which
comply with the law, including, e.g., coverage for contraceptive
services. See Defs.’ Suppl. Mem. at 1-4 [ECF No. 31], citing 42
U.S.C. §§ 300gg-13; 300gg-22; 76 Fed. Reg. 46,621, 623 (Aug. 3,
2011). This does not alter the analysis, however. Under the
statute and regulations, if Priests for Life refuses the
accommodation, it would then be placed in the position of
providing contraceptive services to its employees as part of its
plan of benefits, and paying for such services. As this Circuit
held in Gilardi, this arrangement would substantially burden
8
The parties agree that Priests for Life does not qualify
for an exemption to the contraceptive services mandate. The
grandfathered plans provision does not protect the organization
because the current health insurance plan has made changes since
2010, including an increase in the percentage cost-sharing
requirement. See Decl. of Fr. Pavone, ECF No. 7-1, at ¶ 5.
Priests for Life also does not satisfy the definition of
“religious employer” and is not eligible for an exemption on
that ground. Id. at ¶ 3. Finally, the parties agree that
Priests for Life would qualify as an “eligible organization,”
entitled to the accommodation, if it completes the self-
certification form. Compl. ¶ 6.
Priests for Life states that completing the self-
certification form will require it to violate its sincerely held
religious beliefs because “the government mandate forces Priests
for Life to provide the means and mechanism by which
contraception, sterilization and abortifacients are provided to
its employees. . . . There is no logical or moral distinction
between the [] contraceptive services mandate . . . and the
“accommodation[.]” . . . Priests for Life [is] still paying an
insurer to provide [its] employees with access to a product []
that violates [its] religious convictions.” Compl. ¶¶ 69-70,
Plaintiffs’ free exercise of religion. Gilardi, 733 F.3d at
1216-19.
9
see also id. ¶ 105 (“Priests for Life objects to being forced by
the government to purchase a health care plan that provides its
employees with access to contraceptives, sterilization and
abortifacients, all of which are prohibited by its religious
convictions. This is true whether the immoral services are paid
for directly, indirectly, or even not at all by Priests for
Life.”).
On September 19, 2013, plaintiffs moved for a preliminary
injunction as to all counts of the Complaint. On September 25,
2013, the parties agreed to consolidate the preliminary
injunction motion with the merits under Federal Rule of Civil
Procedure 65(a)(2). Thereafter, plaintiffs filed a motion for
summary judgment and defendants filed a cross motion to dismiss
or in the alternative for summary judgment. Toward the end of
the briefing schedule set by the Court, the D.C. Circuit issued
its decision in Gilardi, addressing religious freedom claims
arising from different regulations under the ACA’s contraceptive
services mandate. Following Gilardi, the Court ordered the
parties to file supplemental briefs addressing its impact on
this case. The Court heard oral argument on the parties’ cross
motions on December 9, 2013. The motions are ripe for
determination by the Court.
10
II. STANDARD OF REVIEW
A. Motion to Dismiss
A motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) “tests the legal sufficiency of a complaint.” Browning
v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A complaint must
contain “a short and plain statement of the claim showing that
the pleader is entitled to relief, in order to give the
defendant fair notice of what the . . . claim is and the grounds
upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (quotation marks omitted; alteration in original).
While detailed factual allegations are not necessary, plaintiffs
must plead enough facts “to raise a right to relief above the
speculative level.” Id.When ruling on a Rule 12(b)(6) motion, the court may
consider “the facts alleged in the complaint, documents attached
as exhibits or incorporated by reference in the complaint, and
matters about which the Court may take judicial notice.”
Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002).
The Court must construe the complaint liberally in plaintiffs’
favor and grant plaintiffs the benefit of all reasonable
inferences deriving from the complaint. Kowal v. MCI Commc’ns
Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). However, the Court
must not accept plaintiffs’ inferences that are “unsupported by
the facts set out in the complaint.” Id. “Nor must the court
11
accept legal conclusions cast in the form of factual
allegations.” Id. “[O]nly a complaint that states a plausible
claim for relief survives a motion to dismiss.” Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009).
B. Motion for Summary Judgment
Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). The party seeking summary judgment bears the
“initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, which
it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986) (internal quotation marks omitted). To defeat summary
judgment, the non-moving party must “designate specific facts
showing there is a genuine issue for trial.” Id. at 324(internal quotation marks omitted). The existence of a factual
dispute is insufficient to preclude summary judgment. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A dispute
is “genuine” only if a reasonable fact-finder could find for the
non-moving party; a fact is only “material” if it is capable of
affecting the outcome of the litigation. Id. at 248; Laningham
12
v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In
assessing a party’s motion, “[a]ll underlying facts and
inferences are analyzed in the light most favorable to the non-
moving party.” N.S. ex rel. Stein v. District of Columbia, 709
F. Supp. 2d 57, 65 (D.D.C. 2010), citing Anderson, 477 U.S. at
247.
III. DISCUSSION
A. Standing
The parties do not dispute that Priests for Life, a non-
profit religious organization, has standing to advance all of
its constitutional and statutory claims. See, e.g., Jimmy
Swaggart Ministries v. Bd. of Equalization of Cal., 493 U.S.
378, 381, 384 (1990); EEOC v. Catholic Univ. of Am., 83 F.3d
455, 467-70 (D.C. Cir. 1996). The Court, therefore, has
jurisdiction to hear and decide the issues presented by this
case. Rumsfeld v. Forum for Acad. & Inst’l Rights, Inc., 547
U.S. 47, 52 n.2 (2006) (“[T]he presence of one party with
standing is sufficient to satisfy Article III’s case-or-
controversy requirement.”).
While the defendants challenge standing of the individual
plaintiffs, they acknowledge that the individual plaintiffs’
claims are identical to Priests for Life’s claims. See Defs.’
Combined Mot. to Dismiss or for Summ. J and Opp’n to Pls.’ Mot.
(hereinafter “Defs.’ Mot.”) at 13, n.8. At oral argument, the
13
parties agreed that it is unnecessary for the Court to address
the standing of the individual plaintiffs. See, e.g., Chamber of
Commerce v. EPA, 642 F.3d 192, 200 (D.C. Cir. 2011) (it is
unnecessary to address the standing of party whose presence or
absence is immaterial to a suit’s outcome, where another party
clearly has standing) (citation omitted). Accordingly, because
the presence of the individual plaintiffs has no impact on the
merits of this case, the Court need not reach the issue of their
standing.
B. The RFRA
The Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb-
1, provides that “[g]overnment shall not substantially burden a
person’s exercise of religion even if the burden results from a
rule of general applicability, except as provided in subsection
(b).” Subsection (b) provides that “[g]overnment may
substantially burden a person’s exercise of religion only if it
demonstrates that application of the burden to the person is (1)
in furtherance of a compelling governmental interest; and (2) is
the least restrictive means of furthering that compelling
governmental interest.”
Congress enacted the RFRA in response to the Supreme
Court’s decision in Employment Division, Department of Human
Services of Oregon v. Smith, 494 U.S. 872 (1990), in which the
Court held that the right to free exercise of religion under the
14
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. 42 U.S.C. § 2000bb. The purpose of the
RFRA was 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.In order to state a prima facie case under RFRA, and thus
to survive a motion to dismiss, plaintiffs must allege a
substantial burden on their religious exercise. The statute
defines “religious exercise” broadly, as “any exercise of
religion, whether or not compelled by, or central to, a system
of religious belief.” 42 U.S.C. §§ 2000bb-2(4); 2000cc-5. The
RFRA does not define “substantial burden,” but because the RFRA
intends to restore Sherbert and Yoder, those cases are
instructive in determining the meaning of that term. In
Sherbert, plaintiff’s exercise of her religion was impermissibly
burdened when plaintiff was forced “to choose between following
the precepts of her religion,” resting and not working on the
Sabbath and forfeiting certain unemployment benefits as a
result, or “abandoning one of the precepts of her religion in
15
order to accept work.” 374 U.S. at 404. In Yoder, the “impact
of the compulsory [school] attendance law on respondents’
practice of the Amish religion [was found to be] not only
severe, but inescapable, for the Wisconsin law affirmatively
compels them, under threat of criminal sanction, to perform acts
undeniably at odds with fundamental tenets of their religious
beliefs.” 406 U.S. at 218.
This Circuit also recently addressed the issue of
substantial burden in the context of a RFRA challenge to the ACA
in Gilardi. The Gilardi brothers are the two owners of closely
held for-profit companies. Their companies are not eligible
for the accommodations available to Priests for Life; the
regulations require such companies to provide contraceptive
coverage for the participants and beneficiaries in their group
health plans. The Gilardis challenged the provisions of the
contraceptive mandate which would have required them to directly
provide contraceptive coverage to their employees, claiming it
substantially burdened their religious beliefs opposing
contraception. The Circuit agreed, finding that “the burden on
religious exercise . . . occurs when a company’s owners fill the
basket of goods and services that constitute a healthcare plan.
In other words, the Gilardis are burdened when they are
pressured to choose between violating their religious beliefs in
managing their selected plan or paying onerous penalties.” 733
16
F.3d at 1217. “The contraceptive mandate,” as applied to
companies not eligible for the accommodations, “demands that
owners like the Gilardis meaningfully approve and endorse the
inclusion of contraceptive coverage in their companies’
employer-provided plans.” Id. at 1217-18.
Unlike the Gilardis, Priests for Life is eligible for the
accommodations to the mandate, and therefore is not required to
provide contraceptive services to its employees. To take
advantage of the accommodations, Priests for Life will be
required to provide its insurer with a self-certification form
stating that it is a religious, non-profit organization which
opposes providing coverage for some or all of any contraceptive
services required to be covered by the mandate. 78 Fed. Reg. at
39,874, 39,892.3 Plaintiffs argue that the self-certification
3
In addition, Priests for Life claims that it will be required
to “identify its employees to its insurer for the distinct
purpose of enabling and facilitating the government’s objective
of promoting the use of contraceptive services;” Pls.’ Mot. for
Prelim. Inj. at 7 (hereinafter “Pls.’ Mot.”); and “coordinate
with its insurer when adding or removing employees and
beneficiaries from its health care plan to ensure that these
individuals receive coverage for contraceptive services,” id. at
8. Plaintiffs provide no support for their claim that the
challenged regulations require either of these things, and
admitted at oral argument that Priests for Life must “identify”
its employees to its insurer and “coordinate” with its insurer
in order to provide its current health care plan to its
employees. Priests for Life also suggests, without support,
that it will ultimately have to bear the costs of the
contraceptive services mandate, because the insurance companies
will somehow find a way to either raise premiums to cover the
cost of such coverage, or fail to lower premiums to reflect the
17
substantially burdens their exercise of religion because the
accommodations require Priests for Life to “promote, facilitate
and cooperate in the government’s immoral objective to increase
the use of contraceptive services in direct violation of
Plaintiffs’ sincerely held religious beliefs.” Pls.’ Mot. at 1.
“[B]ecause Priests for Life provides its employees with a health
care plan, the government mandate forces Priests for Life to
provide the means and mechanism by which contraception,
sterilization, and abortifacients (and related education and
counseling) are provided to its employees (and beneficiaries),
which is unacceptable to Plaintiffs because it violates their
sincerely held religious beliefs.” Id. at 9. “This is true
whether the immoral services are paid for directly, indirectly,
or even not at all by Priests for Life.” Id. at 15. In sum,
Plaintiffs alleges they are pressured to choose between
violating their religious beliefs by “support[ing] and
provid[ing] access to” the services provided under the
contraception mandate, or “leaving the health care insurance
market altogether.” Id. at 16.
savings to the insurer by its provision of such coverage. Pls.’
Mot. at 9, n.6, 10, n.7. The plain language of the regulations,
however, prohibits insurers from passing along any costs of
contraceptive coverage to eligible organizations such as Priests
for Life, whether through cost-sharing, premiums, fees, or other
charges. 78 Fed. Reg. at 39,875-77. The Court declines,
therefore, to find a substantial burden exists on any of these
grounds.
18
Defendants do not question the sincerity of Plaintiffs’
religious beliefs, but they do dispute whether the
accommodations impose a substantial burden on the exercise of
those beliefs. Defendants argue that the regulations impose no
more than a de minimis burden on Plaintiffs’ religious exercise
because the regulations “do not require Priests for Life to
“modify [its] religious behavior in any way.”” Defs.’ Mot. at 15
(quoting Kaemmerling v. Lappin, 553 F.3d 669, 679 (D.C. Cir.
2008)). Defendants contend that Priests for Life “is not
required to contract, arrange, pay or refer for contraceptive
coverage . . . Priests for Life need not do anything more than
it did prior to the promulgation of the challenged regulations –
that is, to inform its issuer that it objects to providing
contraceptive coverage in order to insure that it is not
responsible for contracting, arranging, paying or referring for
such coverage.” Id. at 14-15. The self-certification form only
“require[s] [Priests for Life] to inform its issuer that it
objects to providing contraceptive coverage, which it has done .
. . voluntarily anyway even absent these regulations” in order
to insure that it does not provide such coverage. Id. 15-16.
Accordingly, Defendants argue that completing the self-
certification form “is at most, de minimis, and thus cannot be
“substantial” under RFRA.” Id. 17. For the reasons set forth
below, the Court agrees with the government.
19
A substantial burden exists when government action puts
“substantial pressure on an adherent to modify his behavior and
violate his beliefs.” Gilardi, 733 F.3d at 1216 (quoting
Kaemmerling, 553 F.3d at 678); see also Yoder, 406 U.S. at 218(law substantially burdens the exercise of religion if it
compels individuals “to perform acts undeniably at odds with
fundamental tenets of their religious beliefs.”) “An
inconsequential or de minimis burden on religious practice does
not rise to this level[.]” Kaemmerling, 553 F.3d at 678.
Finally, an adherent is not substantially burdened by laws
requiring third parties to conduct their internal affairs in
ways that violate his beliefs. Id. at 679.
In Kaemmerling, a federal prisoner claimed that the
statutorily mandated collection and use of his DNA for purposes
of a national law enforcement database substantially burdened
his free exercise rights. Kaemmerling alleged that the
collection, storage, and use of his DNA violated his sincerely
held religious beliefs. The D.C. Circuit “accept[ed] as true
the factual allegations that Kaemmerling’s beliefs are sincere
and of a religious nature,” 553 F.3d at 679. The Court further
noted that the government commanded compliance with the statute;
failure to cooperate with collection of a fluid sample from
which the DNA would be isolated is a misdemeanor offense. Id.
at 673. Nevertheless, the Court rejected his RFRA claim
20
because the government was not forcing him to modify his own
behavior. The Court explained:
Kaemmerling does not allege facts sufficient to state a
substantial burden . . . because he cannot identify any
“exercise” which is the subject of the burden to which he
objects. The extraction and storage of DNA information are
entirely the activities of the FBI, in which Kaemmerling
plays no role and which occur after the [prison] has taken
his fluid or tissue sample (to which he does not object).
The government’s extraction, analysis, and storage of
Kaemmerling’s DNA information does not call for Kaemmerling
to modify his religious behavior in any way – it involves
no action or forbearance on his part, nor does it otherwise
interfere with any religious act in which he engages.
Although the government’s activities with his fluid or
tissue sample after the [prison] takes it may offend
Kaemmerling’s religious beliefs, they cannot be said to
hamper his religious exercise because they do not “pressure
[him] to modify his behavior and to violate his beliefs.”
Thomas v. Review Bd., 450 U.S. 707, 718 (1981).
Kaemmerling alleges no religious observance that the DNA
Act impedes, or acts in violation of his religious beliefs
that it pressures him to perform. Religious exercise
necessarily involves an action or practice, as in Sherbert,
where the denial of unemployment benefits “impede[d] the
observance” of the plaintiff's religion by pressuring her
to work on Saturday in violation of the tenets of her
religion, 374 U.S. at 404, or in Yoder, where the
compulsory education law compelled the Amish to “perform
acts undeniably at odds with fundamental tenets of their
religious beliefs,” 406 U.S. at 218. Kaemmerling, in
contrast, alleges that the DNA Act’s requirement that the
federal government collect and store his DNA information
requires the government to act in ways that violate his
religious beliefs, but he suggests no way in which these
governmental acts pressure him to modify his own behavior
in any way that would violate his beliefs. See Appellant's
Br. at 21 (describing alleged substantial burden as
“knowing [his] strongly held beliefs had been violated by
a[n] unholy act of an oppressive regime”).
21
553 F.3d at 679.4 The Kaemmerling court relied on Bowen v. Roy,
in which a Native American man objected to the states’ use of
his child’s Social Security number in determining eligibility
for welfare benefits. The parents objected to a statutory
requirement that state agencies “shall utilize” Social Security
numbers “not because it place[d] any restriction on what [the
father] may believe or what he may do, but because he believes
the use of the number,” a governmental act, “may harm his
daughter’s spirit.” 476 U.S. 693, 699 (1986). The Supreme
Court concluded that the government’s use of the child’s Social
Security number did not impair her parents’ freedom to exercise
their religion.
Never to our knowledge has the Court interpreted the First
Amendment to require the Government itself to behave in
ways that the individual believes will further his or her
spiritual development or that of his or her family. The
Free Exercise clause simply cannot be understood to require
the Government to conduct its own internal affairs in ways
4
Other Circuits have also emphasized the requirement that an
adherent be pressured to modify his own conduct in order to show
a substantial burden on religious exercise. See, e.g., Navajo
Nation v. U.S. Forest Serv., 535 F.3d 1058, 1067 (9th Cir. 2008)
(en banc) (to establish a substantial burden under RFRA,
governmental action must “coerce the Plaintiffs to act contrary
to their religious beliefs under the threat of sanctions, [or]
condition a governmental benefit upon conduct that would violate
their religious beliefs.”); Civil Liberties for Urban Believers
v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003) (“within
the meaning of RFRA, a substantial burden on religious exercise
is one that forces adherents of a religion to refrain from
religiously motivated conduct, inhibits or constrains conduct or
expression that manifests a central tenet of a person’s
religious beliefs, or compels conduct or expression that is
contrary to these beliefs.”) (internal citation omitted).
22
that comport with the religious beliefs of particular
citizens. . . . [A]ppellees may not demand that the
Government join in their chosen religious preferences by
refraining from using a number to identify their daughter.
Id. at 699-700. Other Supreme Court decisions have similarly
rejected free exercise challenges to laws which would not
require a plaintiff to modify his own behavior, but would permit
a third party to engage in behavior to which the plaintiff
objects on religious grounds. In Lyng, the Court rejected
Native American tribes’ challenge to government building roads
and harvesting timber on national forest land used by the tribes
for religious purposes. The Court explained “government
programs, which may make it more difficult to practice certain
religions but which have no tendency to coerce individuals into
acting contrary to their religious beliefs,” do not violate the
First Amendment. 485 U.S. 439, 450 (1988). “The Free Exercise
Clause is written in terms of what the government cannot do to
the individual, not in terms of what the individual can exact
from the government . . . ” Id. at 451 (quoting Sherbert, 374
U.S. at 412 (Douglas, J., concurring)).
In this case, the Court does not doubt the sincerity of
Plaintiffs’ beliefs, nor does it doubt that condemnation of
contraception is central to their exercise of the Catholic
religion. “It is not within the judicial ken to question the
centrality of particular beliefs or practices to a faith, or the
23
validity of particular litigants’ interpretation of those
creeds.” Hernandez v. Comm’r of Internal Revenue Serv., 490
U.S. 680, 699 (1989). However, to prevail under the substantial
burden test Plaintiffs must show more than a governmental action
that violates their sincerely held religious beliefs; they must
show that the governmental action forces Priests for Life,
itself, to modify its own behavior in violation of those
beliefs. Kaemmerling, 553 F.3d at 679.5 This is where
Plaintiffs’ RFRA challenge must fail--like the challenges in
Kaemmerling and Bowen, the accommodations to the contraceptive
mandate simply do not require Plaintiffs to modify their
religious behavior. The accommodation specifically ensures that
provision of contraceptive services is entirely the activity of
5
For this reason, inter alia, the Court is not persuaded by the
rationale articulated in two recent cases that a plaintiff can
meet his burden of establishing that the accommodation creates a
“substantial burden” upon his exercise of religion simply
because he claims it to be so. See Roman Catholic Archdiocese
of N.Y. v. Sebelius, No. 12-2542, 2013 U.S. Dist. LEXIS 176432,
*44 (E.D.N.Y. Dec. 13, 2013) (stating that plaintiffs “consider
[completing the self-certification] to be an endorsement of
[contraceptive services] coverage to which they object; to them,
the self-certification compels affirmation of a repugnant
belief. It is not for this Court to say otherwise.”); see also
Zubik v. Sebelius, No. 13-1459, 2013 U.S. Dist. LEXIS 165922,
*79-*82 (W.D. Pa. Nov. 21, 2013) (reaching the same conclusion).
In this Court’s view, those opinions misconceive RFRA’s
substantial burden test, which requires courts to “accept as
true the factual allegations that [a plaintiff’s] beliefs are
sincere and of a religious nature – but not the legal
conclusion, cast as a factual allegation, that his religious
exercise is substantially burdened.” Kaemmerling, 553 F.3d at
679.
24
a third party – namely, the issuer – and Priests for Life plays
no role in that activity. As in Kaemmerling, “[a]lthough the
[third party]’s activities . . . may offend [plaintiff’s]
religious beliefs, they cannot be said to hamper [his] religious
exercise.” 553 F.3d at 679.
Priests for Life attempts to distinguish Kaemmerling on the
grounds that Mr. Kaemmerling did not object to the government
taking his fluid, hair, or tissue samples; he only objected to
the subsequent extraction and storage of his DNA. Priests for
Life claims that in this case, “the coverage for the morally
objectionable contraceptive coverage will occur only because
Priests for Life has played an active role in purchasing a
healthcare plan and then authorizing the issuer of its plan
through “self-certification” to provide the objectionable
coverage directly to its plan participants and beneficiaries (a
role that is prohibited by Plaintiffs’ religion) and thereby
cooperating with and thus facilitating the government’s illicit
objective “to increase access to and utilization of”
contraceptive services (cooperation that is prohibited by
Plaintiffs’ religion).” Pls.’ Combined Opp’n to Govt’s
Mot./Reply in Support of Pls.’ Mot. (hereinafter “Pls.’
Opp’n/Reply”) at 23 (emphasis in original). The Court does not
find this distinction to be meaningful. The governmental action
in Kaemmerling could not have occurred without the plaintiff
25
playing an active role by providing a blood sample.
Nevertheless, the court rejected claims that his action
constituted a substantial burden because the action did not, in
and of itself, violate plaintiff’s religious beliefs. The fact
that government action thereafter was deeply offensive to his
beliefs did not give rise to a RFRA claim. See Kaemmerling, 553
F.3d at 679 (plaintiff’s knowledge that his “strongly held
beliefs had been violated by a[n] unholy act of an oppressive
regime” was not enough to violate the RFRA because the
government’s actions do not “pressure him to modify his own
behavior in any way that would violate his beliefs.”); see also
Bowen, 476 U.S. at 699-700 (rejecting plaintiff’s challenge to
the government’s use of his daughter’s Social Security number
because it “may harm his daughter’s spirit. . . . The Free
Exercise Clause affords an individual protection from certain
forms of governmental compulsion; it does not afford an
individual a right to dictate the conduct of the Government’s
internal procedures.”)
In this case, Plaintiffs assert an objection to a single
requirement the regulations impose on Priests for Life directly:
completing a self-certification form stating that it is a non-
profit religious organization which objects to providing
contraceptive services coverage. Pls.’ Mot. at 7. However,
during oral argument Plaintiffs conceded that they have no
26
religious objection to the self-certification form, in and of
itself. Rather, Plaintiffs’ act under the accommodations
becomes burdensome only when it is characterized as
“cooperating” with or providing “authorization” for “the
government’s illicit goal of increasing access to and
utilization of contraceptive services.” Pls.’ Opp’n/Reply at
23. But no matter how religiously offensive the statutory or
regulatory objective may be, the law does not violate RFRA
unless it coerces individuals into acting contrary to their
religious beliefs. See Lyng, 458 U.S. at 450. In this case, it
is only the subsequent actions of third parties – the
government’s and the issuer’s provision of contraceptive
services, in which Priests for Life plays no role – that animate
its religious objections. Under Bowen and Kaemmerling, however,
RFRA does not permit Plaintiffs to proscribe the conduct of
others.
Plaintiffs’ reliance on Sherbert, Yoder, and Thomas is
unavailing. Pls.’ Mot. at 21. Plaintiffs argue that these
cases, particularly Thomas, established that the impact of a
“substantial burden” need not be direct. Id. at 20. In each of
these cases, however, the burdens of the governmental action –
denial of unemployment benefits for refusal to work on the
Sabbath or in an armaments factory, threatened criminal
prosecution for refusing to send children to school – all fell
27
directly upon the plaintiffs’ participation in or abstention
from a specific religious practice. That is not the case here;
once again, the only action required of Priests for Life under
the accommodations is consistent with its beliefs. It is only
the independent actions of third parties which result in the
availability of contraceptive services. See Conestoga Wood
Specialties Corp. v. Sebelius, 917 F. Supp. 2d 394, 415 & n.15
(E.D. Pa. 2013) (explaining that while an indirect compulsion
may constitute a substantial burden, legislation which imposes
only an indirect burden on the exercise of religion does not),
aff’d 724 F.3d 377 (3d Cir. 2013), cert. granted, 2013 U.S.
LEXIS 8418 (U.S. Nov. 26, 2013) (No. 13-354).6
This Circuit’s recent decision in Gilardi does not alter
the analysis. In Gilardi, the plaintiffs themselves (through
6
The Court is not persuaded by the rationale in Archdiocese
of N.Y., which states that completing the self-certification
form, itself, amounts to a substantial burden on the plaintiffs’
exercise of religion, because if they do not complete the form,
they are subject to penalties or other forms of government
coercion. See, Roman Catholic Archdiocese of N.Y., 2013 U.S.
Dist. LEXIS 176432, *32 (stating that RFRA’s “substantial
burden” test is met by a finding that plaintiffs face
“substantial pressure” to comply with the law.) The Court
agrees with the reasoning of Kaemmerling, which, in the Court’s
view, correctly interpreted Sherbert, Yoder and Thomas to hold
that even a threat of criminal sanction did not amount to a
substantial burden when it did not impact plaintiff’s religious
exercise. Kaemmerling, 553 F.3d at 679 (“Although the [third
party]’s activities . . . may offend [plaintiff’s] religious
beliefs, they cannot be said to hamper [his] religious
exercise.”)
28
their companies) had to provide contraceptive coverage for the
participants and beneficiaries of their plan. The Circuit
explained that the Gilardis were substantially burdened when
they had to place contraceptive coverage into “the basket of
goods and services that constitute [their companies’] healthcare
plan.” Gilardi, 733 F.3d at 1218. The Circuit repeated the
nature of the burden later in the opinion, defining the burden
as a “demand[] that owners like the Gilardis meaningfully
approve and endorse the inclusion of contraceptive coverage in
their companies’ employer-provided plans, over whatever
objections they may have. Such an endorsement . . . is a
“compel[led] affirmation of a repugnant belief.”” Id. at 1218
(quoting Sherbert, 374 U.S. at 402). Priests for Life need do
none of those things. It need not place contraceptive coverage
into “the basket of goods and services that constitute its
healthcare plan,” nor must it even permit, much less “approve
and endorse” such coverage in its plan. Gilardi, 733 F.3d at
1217. On the contrary, Priests for Life need only reaffirm its
religiously based opposition to providing contraceptive
coverage, at which point third parties will provide the coverage
separate and apart from Priests For Life’s plan of benefits. In
the Court’s view, the Circuit’s holding on the issue of
substantial burden in Gilardi is distinguishable from this case.
29
For the foregoing reasons, the Court finds that Plaintiffs
have not stated a prima facie case under RFRA because they have
not alleged a substantial burden on their religious exercise.
Therefore, Count II of the Complaint will be dismissed for
failure to state a claim.
C. The Free Exercise Clause
The First Amendment provides that Congress shall make no
law “prohibiting the free exercise” of religion. Hosanna-Tabor
Evangelical Lutheran Church and School v. E.E.O.C., 132 S.Ct.
694, 702 (2012). 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).” Employment Div. v. Smith, 494 U.S. 872, 879
(1990) (quotation omitted). A law is not neutral “if the object
of [the] law is to infringe upon or restrict practices because
of their religious motivation.” Lukumi Babalu Aye v. City of
Hialeah, 508 U.S. 520, 533 (1993). A law is not generally
applicable if it “in a selective manner impose[s] burdens only
on conduct motivated by religious beliefs.” Id. at 543.
This Court agrees with the vast majority of courts which
have considered the issue and found that the contraceptive
services regulations are neutral and generally applicable, and
30
accordingly have rejected Free Exercise Clause challenges. See
Defs.’ Mot. at 32 n.5 (citing, e.g., MK Chambers Co. v. U.S.
Dep’t of Health & Human Servs., U.S. Dist. LEXIS 47887, *13-15
Case No. 13-11379 (E.D. Mich. Apr. 3, 2013); Conestoga, 917 F.
Supp. 2d at 409-10; Autocam Corp. v. Sebelius, 2012 U.S. Dist.
LEXIS 184093, *23, Case No. 12-1906 (W.D. Mich., Dec. 24, 2012),
aff’d 730 F.3d 618 (6th Cir. 2013), petition for cert. filed,
(U.S. Oct. 15, 2013) (No. 13-482); Hobby Lobby, 870 F. Supp. 2d
1278, 1289-90 (W.D. Okl. 2012) rev’d on other grounds, 723 F.3d
1114). Although these cases do not specifically address the
accommodations to the mandate at issue here, nothing about the
specific regulations governing the accommodations leads to a
different result.
Plaintiffs do not dispute that the regulations’ stated
purpose is secular: to promote public health and gender
equality. Nevertheless, they argue that the mandate, and its
accommodations, is not neutral because it was “designed to
target employers who refuse to provide contraceptive services to
their employees based on the employers’ religious beliefs.”
Pls.’ Mot. for Prelim. Inj. 23-24. They cite the exemption for
“religious employers” as defined by 45 C.F.R. § 147.131(a),
which applies only to houses of worship and their integrated
auxiliaries, but not to other religious organizations, and argue
that the exemption divides religious objectors into favored and
31
disfavored groups without any secular purpose. Pls.’ Mot. at
24.
As several other courts considering the issue have found,
“carving out an exemption for defined religious entities does
not make a law nonneutral as to others.” Hobby Lobby, 870 F.
Supp. 2d at 1289 (W.D. Okl. 2012). In other words, the neutral
purpose of the regulations – to make contraceptive coverage
available to women – is not altered because the legislature
chose to exempt some religious institutions and not others. On
the contrary, “the religious employer exemption presents a
strong argument in favor of neutrality, demonstrating that the
“object of the law” was not to “infringe upon or restrict
practices because of their religious motivation.”” O’Brien v.
U.S. Dep’t of Health & Human Servs., 894 F. Supp. 2d 1149, 1161
(E.D. Mo. 2012) (quoting Lukumi, 508 U.S. at 533); see also
Catholic Charities of Diocese of Albany v. Serio, 7 N.E.2d 510,
522 (N.Y. 2006), cert. denied, 552 U.S. 816 (2007) (rejecting
Free Exercise Clause challenge to state law requiring
contraceptive coverage on grounds that the law exempted some,
but not all, religious institutions. “To hold that any
religious exemption that is not all-inclusive renders a statute
non-neutral would be to discourage the enactment of any such
exemptions—and thus to restrict, rather than promote, freedom of
religion.”). Indeed, Priests for Life itself is the beneficiary
32
of an accommodation to the regulations, which was enacted for
the purpose of alleviating any burden on its religious practice.
Plaintiffs argue that a statement in the Overview of the
Final Regulations authorizing the religious employer exemption
from the mandate reveals a discriminatory intent toward all
employers which oppose contraceptive coverage and which do not
qualify for the exemption.
A group health plan . . . qualifies for the [religious
employer] exemption if, among other qualifications, the
plan is established and maintained by an employer that
primarily employs persons who share the religious tenets of
that organization . . . . Employers that do not primarily
employ employees who share the religious tenets of the
organization are more likely to employ individuals who have
no religious objection to the use of contraceptive services
and therefore are more likely to use contraceptives.
Including these employers within the scope of the exemption
would subject their employees to the religious views of the
employer, limiting access to contraceptives, and thereby
inhibiting the use of contraceptive services and the
benefits of preventive care.
Pls.’ Mot. at 5, 24 (quoting 77 Fed. Reg. 8724, 8728). For the
reasons just discussed, this comment lacks significance in the
context of a Free Exercise Clause claim. It merely explains
that the regulations confer the special benefit of an exemption
only for those religious organizations that are essentially
houses of worship and their integrated auxiliaries, and who
therefore may be permitted to give employment preference to
members of their own religion. See, e.g., 42 U.S.C. § 2000e-
1(a). That benefit, as discussed above, “is justifiable as a
33
legislative accommodation--an effort to alleviate a
governmentally imposed burden on religious exercise.” Catholic
Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67, 85
(Cal. 2004). Those non-profit religious organizations that do
not qualify for the exemption but nevertheless are opposed to
contraceptive services, like Priests for Life, are also eligible
for an accommodation. Finally, employers that do not qualify
for an exemption or accommodation are subject to the
contraceptive services mandate in the same manner as all other
employers, whether religious or non-religious. Accordingly,
while the regulations “treat some [] employers” with religious
objections to contraceptive coverage “more favorably than other
employers, it does not under any circumstance treat [employers
with religious objections] less favorably than any other
employers.” 85 P.3d at 85. Therefore, Plaintiffs’ neutrality
argument fails.
Plaintiffs also claim that the law is not one of general
applicability because “Congress has permitted exemptions from
the requirements of the Act,” including those for grandfathered
plans and certain religious employers. Pls.’ Mot. at 24. The
existence of categorical exemptions, however, does not mean that
the law does not apply generally. See, e.g., United States v.
Lee, 455 U.S. 252, 261 (1982) (finding social security tax
requirements generally applicable despite existence of
34
categorical exemptions). As the Supreme Court has held, laws
are not generally applicable when they “in a selective manner
impose burdens only on conduct motivated by religious beliefs.”
Lukumi, 508 U.S. at 543 (invalidating statute which prohibited
only the religious practice of animal sacrifice, but not hunting
or other secular practices involving killing of animals). The
regulations in this case do not impose burdens selectively; they
apply to all non-exempt employers, regardless of their religious
beliefs. See Stormans, Inc. v. Selecky, 586 F.3d 1109, 1134 (9th
Cir. 2009) (“pharmacists who do not have a religious objection
to [filling prescriptions for contraceptives] must comply with
the rules to the same extent—no more and no less—than . . .
pharmacists who may have a religious objection to [filling the
prescriptions]. Therefore, the rules are generally
applicable.”) And again, to the extent the accommodation alters
the analysis, it promotes, not restricts, the free exercise of
religion by excusing from compliance employers such as Priests
for Life due to their religious beliefs.
Accordingly, the Court concludes that the regulations, and
the accommodations, do not violate the Free Exercise Clause.
Therefore, Count I of the Complaint will be dismissed for
failure to state a claim.
35
D. Freedom of Speech and Expressive Association
Plaintiffs next argue that the accommodation to the
contraceptive services mandate violates their right to Free
Speech and Expressive Association under the First Amendment.
They claim the accommodation compels speech, in violation of
their deeply held religious beliefs, by requiring them to
complete the self-certification form, which then leads to
Priests for Life’s insurer providing contraceptive coverage.
Pls.’ Mot. at 31. They claim the same requirement violates
their right to associate, which they do for the purpose of
expressing a “message that rejects the promotion and use of
contraceptive services.” Id. at 29.
As Defendants point out, “every court to review a Free
Speech challenge to the prior contraceptive-coverage regulations
has rejected it.” Defs.’ Mot. at 35 (citing, e.g., MK Chambers
Co., 2013 U.S. Dist. LEXIS 47887, *15-17; Conestoga, 917 F.
Supp. 2d at 418; Autocam, 2012 U.S. Dist. LEXIS 184093, *23-
*25). These cases rely on Rumsfeld v. Forum for Academic &
Institutional Rights, Inc., (“FAIR”), a case Plaintiffs do not
address. In FAIR, the Court rejected a free speech and
expressive association challenge to the Solomon Amendment, a
statute that conditioned federal funding to law schools upon
their agreement to permit military recruiters on campus. The
Court found that the statute “neither limits what law schools
36
may say nor requires them to say anything. Law schools remain
free . . . to express whatever views they may have on the
military . . . the [statute] regulates conduct – not speech. It
affects what law schools must do – afford access to military
recruiters – not what they may or may not say.” FAIR, 547 U.S.
at 60. The Court found that to the extent that complying with
the Amendment required the school to speak, such as by sending
emails or posting notices on behalf of military recruiters, such
speech was “plainly incidental to the . . . regulation of
conduct.” Id. at 62. “It has never been deemed an abridgment
of freedom of speech . . . to make a course of conduct illegal
merely because such conduct was in part initiated, evidenced, or
carried out by means of language, either spoken, written, or
printed.” Id. (citation omitted).
A similar analysis applies to this case. The regulations
regarding contraceptive coverage, including the accommodation,
place no limits on what Plaintiffs may say; they remain free to
oppose contraceptive coverage for all people and in all forms.
Rather, the accommodation regulates conduct; specifically, the
conduct of Priests for Life’s insurance provider. And like the
law schools in FAIR, the only speech the accommodations require
of Priests for Life is incidental to the regulation of conduct.
Priests for Life’s speech in this case is its self-certification
that it opposes contraceptive coverage. This speech is
37
necessary only because it is attendant to the regulation of
conduct, specifically, the insurance company’s provision of
contraceptive services. Indeed, the speech at issue in this
case is even farther from a First Amendment violation than the
speech in FAIR; in that case, the speech was incidental to the
law schools’ conduct, while in this case the speech is
incidental to the conduct of a wholly separate entity. And in
any event, the speech at issue here is in accordance with
Priests for Life’s religious beliefs, not fundamentally opposed
to it. Cf. West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624(1943) (invalidating state law requiring Jehovah’s Witness
schoolchildren to recite the Pledge of Allegiance and to salute
the flag); Wooley v. Maynard, 430 U.S. 705 (1977), (striking
down law that required Jehovah’s Witnesses to display the state
motto—“Live Free or Die”—on their license plates).
Plaintiffs argue strenuously in their motion that because
opposition to contraception is a fundamental part of their
organizational message, any provision of contraceptive coverage
by any other party must necessarily interfere with that message
and therefore be considered compelled speech. See Pls.’ Mot. at
28-32. But this is not the test for compelled speech in
violation of the First Amendment. As the Court held in FAIR,
one speaker who is forced to host another speaker’s message may
only assert a compelled-speech violation when the message it is
38
forced to host is “inherently expressive.” FAIR, 547 U.S. at
64. For example, the “expressive nature of a parade” was a key
part of the holding in Hurley v. Irish-American Gay, Lesbian,
and Bisexual Group of Boston, Inc., 515 U.S. 557, 568 (1995).
Likewise, in Pacific Gas and Electric Company v. Public Utility
Commission of California, 475 U.S. 1 (1986), the compelled
inclusion of a third party newsletter along with Pacific Gas’s
own newsletter “interfered with the utility’s ability to
communicate its own message in its newsletter.” FAIR, 547 U.S.
at 64. By contrast, there is nothing inherently expressive
about Priests For Life’s insurer, wholly separate from Priests
for Life, providing contraceptive coverage, just as there is
nothing inherently expressive about a law school’s decision to
allow recruiters on campus. Id., see also Autocam Corp. v.
Sebelius, 2012 U.S. Dist. LEXIS 184093, *23.7
7
Priests for Life also argues that the ACA’s requirement
that contraceptive coverage include patient education and
counseling for women constitutes prohibited speech because it
advocates a particular viewpoint or content. See Pls.’
Opp’n/Reply at 28. This Court agrees with the Conestoga court,
which considered and rejected the same argument, explaining,
“[w]hile the regulations mandate that [insurance companies]
provide coverage for “education and counseling for women with
reproductive capacity,” which may include information about the
contraceptives which Plaintiffs believe to be immoral, they are
silent with respect to the content of the counseling given to a
patient by her doctor. . . . As such, it cannot be said that
Plaintiffs are being required to [host] the advocacy of a
viewpoint with which they disagree. Plaintiffs’ concern that a
doctor may, in some instances, provide advice to a patient that
differs from [plaintiffs’] religious beliefs is not one
39
Plaintiffs’ expressive association claim is also devoid of
merit. The government violates expressive association rights
under the First Amendment by directly interfering with an
association’s composition by forcing them to accept members or
hire employees who would “significantly affect [the
association’s] expression,” Boy Scouts of America v. Dale, 530
U.S. 640, 656 (2000). It may also infringe on the freedom of
expressive association by passing laws requiring disclosure of
anonymous membership lists, or imposing penalties or withholding
benefits based on membership in a disfavored group. Brown v.
Socialist Workers ’74 Campaign Comm., 459 U.S. 87, 101-02
(1982); Healy v. James, 408 U.S. 169, 180-84 (1972). These laws
were invalidated because they “made group membership less
attractive, raising [] First Amendment concerns affecting the
group’s ability to express its message.” FAIR, 547 U.S. at 69.
By contrast, the presence of military recruiters on a law school
campus “has no similar effect on a law school’s associational
rights. Students and faculty are free to associate to voice
their disapproval of the military’s message; nothing about the
statute affects the composition of the group by making group
membership less desirable. . . . A military recruiter’s mere
protected by the First Amendment.” Conestoga, 917 F. Supp. 2d
at 419 (internal citations omitted).
40
presence on campus does not violate a law school’s right to
associate, regardless of how repugnant the law school considers
the recruiter’s message.” Id. at 69-70.
As in FAIR, the regulations and accommodations do not
violate Plaintiffs’ right to associate. The regulations and
accommodations in no way restrict Priests for Life’s members,
employees, and donors from associating to express their
opposition to contraception. Nothing about the regulations or
the accommodations force Plaintiffs to accept members or
employees it does not desire, nor do they make group membership
less desirable as in Socialist Workers ’74 or in Healy. Like
the plaintiffs in FAIR, there can be no doubt that Plaintiffs
find the content of the regulations repugnant to their religious
beliefs. See Compl. at ¶¶ 87-8, 90 (explaining its beliefs that
access to contraception “harms women,” is “gravely immoral,” and
“a grave sin.”). However, the fact that a third party provides
contraceptive coverage to Priests for Life’s employees, separate
from Priests for Life or its employer-sponsored health plan,
does not affect the group’s ability to express its message under
the First Amendment, and therefore does not violate its
associational rights.
The government has not compelled plaintiffs to speak, nor
has it violated their rights to expressive association.
Accordingly, Count III of the Complaint will be dismissed.
41
E. Establishment Clause and Equal Protection Clause
The Establishment Clause prohibits the government from
showing a preference for any religious denomination over
another. Larson v. Valente, 456 U.S. 228, 244 (1982).
Plaintiffs claim that the contraceptive services mandate, its
exemption for religious employers, and its accommodations create
an impermissible government preference in favor of churches and
religious orders over other religious organizations. Pls.’
Opp’n/Reply at 29-30. As with Plaintiffs’ Free Speech/
Expressive Association Claim, defendants point out that every
court to consider an Establishment Clause challenge to the
contraceptive services mandate has rejected it. Defs.’ Mot. at
39 (citing, e.g., O’Brien, 894 F. Supp. 2d at 1162; Conestoga,
917 F. Supp. 2d at 416-17). As these courts found, the
regulations permit the government to distinguish between
religious organizations based on structure and purpose when
granting religious accommodations, which is not prohibited under
the Establishment Clause. See, e.g., O’Brien, 894 F. Supp. 2d
at 1163-4 (collecting cases).8
8
Plaintiffs claim that under Larson, the government is
prohibited from making other distinctions among types of
religious institutions, in addition to denominational
preferences. Pls.’ Opp’n/Reply at 31-32. Plaintiffs misread
Larson. The Larson court invalidated the statute at issue not
because it distinguished between different types of
organizations based on their structure or purpose, but rather
because it “was drafted with the explicit intention of including
42
Plaintiffs do not address this authority. The crux of their
argument rests on a statement in the Overview of the Final
Regulations authorizing the religious employer exemption from
the mandate, which states in relevant part:
A group health plan . . . qualifies for the [religious
employer] exemption if, among other qualifications, the
plan is established and maintained by an employer that
primarily employs persons who share the religious tenets of
that organization . . . . Employers that do not
primarily employ employees who share the religious tenets
of the organization are more likely to employ individuals
who have no religious objection to the use of contraceptive
services and therefore are more likely to use
contraceptives. Including these employers within the scope
of the exemption would subject their employees to the
religious views of the employer, limiting access to
contraceptives, and thereby inhibiting the use of
contraceptive services and the benefits of preventive care.
Pls.’ Mot. at 35 (quoting 77 Fed. Reg. at 8728); Pls.’
Opp’n/Reply at 33 (same). The Court has already considered
this statement in the context of Plaintiffs’ Free Exercise
Clause challenge and found it constitutionally permissible. See
supra at III.C. Nor does it violate the Establishment Clause,
because it delineates the contours of a religious accommodation
that applies equally to organizations of every faith and does
not favor any denomination over another. See, e.g., Walz v. Tax
Comm’n of City of New York, 397 U.S. 664 (1970) (rejecting
Establishment Clause challenge to law exempting from property
particular religious denominations and excluding others.” 456
U.S. at 254.
43
taxes property of religious organizations used exclusively for
religious worship); Droz v. Comm’r of IRS, 48 F.3d 1120, 1124
(9th Cir. 1995) (upholding Social Security tax exemption only
for members of organized religious sects, despite the fact that
“some individuals receive exemptions, and other individuals with
identical beliefs do not,” because the purpose of the exemption
was not to discriminate among religious denominations).
Plaintiffs’ Equal Protection claim is identical to its
other First Amendment Claims: they claim the regulations,
religious employer exemption and accommodation impinge on
Priests for Life’s fundamental right to free exercise of
religion, freedom of speech and expressive association. Pls.’
Mot. at 33. The Court has already rejected these underlying
claims, however. “Where a plaintiff’s First Amendment free
exercise claim has failed, the Supreme Court has applied only
rational basis scrutiny in its subsequent review of an equal
protection fundamental right to religious free exercise claim
based on the same facts.” Wirzburger v. Galvin, 412 F.3d 271,
282-83 (1st Cir. 2005) (citing Locke v. Davey, 540 U.S. 712, 721
(2004). Applying rational basis scrutiny to the fundamental
rights-based claim that the regulations violate equal
protection, the Court has no trouble determining that the
contraceptive services mandate is rationally related to the
legitimate government purposes of promoting public health and
44
gender equality. See, e.g., Dep’t of Agriculture v. Moreno, 413
U.S. 528, 533 (1973). Indeed, Plaintiffs do not argue that the
regulations would fail such review.
The Plaintiffs have failed to state a claim under the
Establishment Clause or the Equal Protection Clause. Therefore,
Counts IV and V will be dismissed.
IV. CONCLUSION
For the foregoing reasons, the defendants’ motion to
dismiss all counts of Plaintiffs’ Complaint is GRANTED;
accordingly, the parties’ cross motions for summary judgment are
DENIED AS MOOT. An appropriate Order accompanies this
Memorandum Opinion.
Signed: Emmet G. Sullivan
United States District Judge
December 19, 2013
45